FTC Chair Edith Ramirez Sounds Off On Big Law

As Chairwoman of the Federal Trade Commission, Edith Ramirez is one of the most important people in Washington, and something of a political figure. But if you ask her, she’s still first and foremost a litigator.

After being tapped by President Obama as a commissioner in 2010, Ramirez was elevated to chair in 2013. Today, she oversees one of the most powerful — and, at times, controversial — agencies in Washington, D.C.

Established in 1914 under President Woodrow Wilson, the FTC is tasked with protecting consumers from unfair business practices and ensuring markets stay competitive. The agency is made up of five commissioners, each of whom is nominated by the President and serves a seven-year term.

The FTC is often a flashpoint in a larger political debate about the role of government: for Democrats, the agency is seen as a defender of the vulnerable, a bulwark against corporate monopoly; for Republicans, its actions are often cited as examples of paternalistic bureaucracy and government overreach.

By rule, no more than three commissioners at a time can be members of the same political party. Democrats, including Ramirez, presently hold three out of four commissioner seats — there is one vacancy, after Republican Joshua Wright stepped down in August .

Among the commissioners, there are disagreements about how aggressively to prosecute cases — the FTC enforces the law in primarily three ways: by obtaining voluntary consent decrees from offenders, by filing a complaint with an administrative law judge, or by filing suit in federal court — but regardless of politics, the Commission has to make choices about which cases are likely to succeed.

Here, Ramirez says her training as a litigator is priceless: Prior to coming to the Commission, Ramirez was a partner in the Los Angeles office of Quinn Emanuel Urquhart & Sullivan, and before that, an associate at Gibson, Dunn & Crutcher.

“The FTC is, first and foremost, a law enforcement agency, so the bulk of our work is making determinations about whether or not to bring particular enforcement actions,” she said. “My experience as a litigator has been extraordinarily helpful in that respect.”

Ramirez said she’s staying on as Chairwoman through 2016, and depending on how the coming presidential election turns out, may stay on longer. During Ramirez’s tenure as Chairwoman, the FTC has filed over 200 enforcement actions, obtaining more than one billion dollars in redress for consumers.

A native of San Clemente, California, Ramirez graduated from Harvard Law School, where she was an editor on the Harvard Law Review, and clerked for Judge Alfred Goodwin on the 9th Circuit U.S. Court of Appeals.

In a recent interview with Big Law Business, Ramirez talked about large law firm practice, the FTC’s increasing influence over cybersecurity, growing up in the home of Mexican immigrants, and what we can expect from the FTC in 2016.

Below is an edited transcript of the interview.

Big Law Business: What are the biggest lessons you carried forward from your time at Quinn Emanuel and Gibson Dunn?

Ramirez: The FTC is, first and foremost, a law enforcement agency, so the bulk of our work is making determinations about whether or not to bring particular enforcement actions. My experience as a litigator has been extraordinarily helpful in that respect.

It’s also been useful to understand the perspective of companies, given how the actions we take, and the guidance we give, have an impact on businesses. I do think it’s beneficial for people who are at the agency to have that perspective.

[caption id="attachment_6366" align="alignleft” width="700"][Image “Photo by Cade Martin (Courtesy of the FTC)” (src=https://bol.bna.com/wp-content/uploads/2015/12/Chairwoman-Ramirez-portrait-2.jpg)]Edith Ramirez | Courtesy of the FTC[/caption]

Big Law Business: What’s your take on law firm diversity? What do you think is holding firms back?

Ramirez: There are a number of different factors that play into this. It’s not an issue that’s confined to law firms, although I think certainly, during the time I was at a law firm myself, there needed to be, and there still needs to be, greater diversity at the senior level.

It’s just not easy to stay in a big law firm environment, and you can lose a lot of terrific talent along the way. That includes women and minorities.

Law firms can be a challenging environment to work in, and I saw certainly a high attrition rate among associates, generally speaking. If you’re starting with an already small pool of minority associates, and you lose the majority of those associates, then by the time you start trying to elevate people to partner, it becomes that much more challenging.

The law firm environment has become more competitive. It’s just not easy to stay in a big law firm environment, and you can lose a lot of terrific talent along the way. That includes, but is not limited to, women and minorities.

Big Law Business: The FTC has frequently been in the headlines for cybersecurity during your tenure. Will we ever get cybersecurity legislation from Congress? Or is the FTC going to be our cybersecurity agency from here forward?

Ramirez: I am hopeful that federal cybersecurity legislation will be enacted at some point in the near future. I know there is significant interest, and we’ve seen certain legislative proposals in this regard.

In the meantime, we’re certainly going to continue the extensive work that we’ve done in this area. Our work here dates back to the early 2000’s, so we have a lengthy history of pushing companies to put reasonable security measures in place to protect consumer information.

We still need to do more outreach to make sure the Latino community knows that they can come to us to lodge complaints.

Big Law Business: The FTC won a big victory at the Third Circuit in the Wyndham case this year. What’s your response to Wyndham’s and others’ objection that the FTC has overreached?

Ramirez: I absolutely disagree, of course, with that view. Congress gave us the authority to take action when companies engage in unfair, deceptive practices. Our cases in the data security arena often include claims that implicate both prongs of our authority under the FTC Act — our unfairness and deceptiveness authority.

The bottom line is we have broad jurisdiction. We have used that unfairness authority, I think, in a very careful, judicious way. The data security cases, in my mind, fall squarely within the authority that Congress gave us.

Big Law Business: Your parents were Mexican immigrants, and your family spoke Spanish at home. How has that particular part of your background informed your career?

Ramirez: It’s played an important role. It’s part of who I am. I think that, even as a young child, I felt I had a broader perspective. I think it makes me more sensitive to the fact that we, as an agency, need to be more sophisticated in the way we try to address problems facing consumers.

We deal with so many different communities, so many different types of consumers — the elderly, military families, low-income families, ethnic minorities — and each of them has a different set of challenges that make them more susceptible to certain kinds of fraud.

We have broad jurisdiction. The cybersecurity cases fall squarely within the authority that Congress gave us.

For us to be effective as an agency, we need to be conscious of that and need to be smarter in the way we go about addressing fraud. For instance, we still need to do more outreach to make sure the Latino community knows that we, as an agency, are here — that we are the consumer protection agency, and they can come to us to lodge complaints.

We also have various campaigns designed to educate consumers, so they can avoid fraudulent schemes and other pitfalls they might encounter. That will mean sometimes you take a different approach in the way you try and tackle, let’s say, a defect issue is relative to the elderly community, as opposed to what you might do with respect to the Latino community or the Asian community.

Big Law Business: What can we expect from the FTC in 2016?

Ramirez: I can’t talk about specific matters, but I think you can expect us to stay on the path we’ve been on. Technology, I think, is playing an increasingly important role in consumers’ lives, so we’ve made an effort to attract more technologists to the agency.

We’ve created a new office called the Office of Technology, Research and Investigation, just to, again, enhance the internal talent of the agency. We’re going to continue with that effort and continue to place a focus on how technology impacts consumers.

We’re incredibly busy on the competition side with merger reviews. As the economy has recovered, we’ve seen the number of potential mergers go up.

We’re incredibly busy on the competition side with merger reviews. As the economy has recovered, we’ve seen the number of potential mergers go up, so we’re busy reviewing those to ensure the consolidation that’s taking place isn’t to the detriment of consumers.

There are still a lot of exciting things that I can’t go into detail about, but at the end of the day, we’re trying to ensure that companies are being honest as they operate in the marketplace, that consumers have the information they need in order to make informed choices.

We also want to make sure that there’s a level playing field for businesses, that the products and services that consumers see are high quality, lower cost, and that markets stay competitive.