Advertising Law Blog

President Donald Trump has a lot of leeway to shape the future of the Federal Trade Commission. Last month, FTC chairwoman Edith Ramirez, a Democrat, resigned her post. The FTC was already short two directors, meaning there are currently three vacancies on the five-person commission.

The two holdovers are Terrell McSweeny, a Democrat, and Maureen Ohlhausen, a Republican. Not surprisingly, President Trump designated Ohlhausen, his fellow Republican, to assume the role of chairperson. Ohlhausen first became an FTC commissioner in April 2012.

Should Trump choose to fill the vacant spots with traditional Republicans, one area that could be greatly affected is the FTC’s practice of bringing privacy suits against companies accused of suffering data breaches.  Ohlhausen recently published a dissent to an FTC settlement of data breach charges with Nomi Technologies. According to the 2015 dissenting statement from now-chairwoman Ohlhausen, the FTC should not bring data breach cases unless consumers suffer actual harm, and it should not seek to establish strict liability standards in such cases.. As chairwoman, Ohlhausen is now in a better position to implement her vision. Olshan has previously reported on Ohlhausen’s views here.

Under the leadership of Ramirez, the FTC brought nearly 400 law enforcement actions covering a range of consumer protection issues and approximately 100 enforcement actions challenging anticompetitive mergers and business behavior in major sectors of the economy, including against healthcare providers and in the pharmaceutical, retail, and energy markets.

In her farewell statement, Ramirez said, “It has been the honor of a lifetime to lead the Federal Trade Commission and to have played a role in advancing American consumers’ ability to navigate fast-paced digital markets and promoting business competition across the economy. I thank my fellow Commissioners and all of the talented FTC staff for their support and dedicated public service during my tenure.”