FTC to get leadership change, new commissioner under Trump administration

© Andriy Blokhin - stock.adobe.com

Big Tech could be a target but noncompetes are probably a nonstarter when leadership changes and a new commissioner joins the Federal Trade Commission (FTC).

Greater regulation of pharmacy benefit managers (PBMs) also could be on the agenda under the next administration of President Donald Trump, if the new commissioner has a say.

The president-elect’s transition team announced he is appointing FTC Commissioner Andrew N. Ferguson to be the next FTC chair. He would succeed Chair Lina M. Khan, who has received public attention for directing the Commission’s anti-consolidation and pro-consumer actions. The president-elect’s transition team also announced attorney Mark R. Meador will be a commissioner.

Andrew N. Ferguson
_{© Federal Trade Commission}

Mark R. Meador
_{© Kressin Meador Powers}

Gail Slater
_{© C-SPAN3 via Politico}

Also relating to business and market competitiveness, the president-elect announced attorney Gail Slater will serve as assistant attorney general for the antitrust division of the U.S. Justice Department. She has served at the FTC and as an economic adviser to Trump and Vice President-elect J.D. Vance, and for Fox Corp. and Roku.

Effects on health care?

In April the FTC voted 3-2 for the final rule declaring that noncompete clauses used in health care and across a range of businesses were unfair methods of competition that violated federal rules. Commission Chair Lina M. Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya, all Democrats, cited effects in health care among the market conditions that supported a ban. Ferguson and Commissioner Melissa Holyoak, both Republicans, voted against that rule.

In June, Ferguson published a 45-page dissent. Noncompete agreements have been used for centuries and are regulated by the 50 states, he said. But the FTC did not have jurisdiction to invalidate 30 million existing work contracts, to redistribute wealth or to override the laws of 46 states, he said.

There is no tradition of federal regulation of noncompetes and no federal rules address them directly, Ferguson said. If there is to be federal regulation, that should come through legislative action in Congress, he said.

PBMs and the market

In recent years, lawmakers on both sides of the aisle have argued against the business practices of pharmacy benefit managers (PBMs) that negotiate drug prices and availability. The legislative opponents of PBMs might find an ally in Meador. Among his publications and speaking engagements, his firm’s website includes “Squeezing the Middleman: Ending Underhanded Dealing in the Pharmacy Benefit Management Industry through Regulation,” a 37-page examination of that segment of health care.

“The challenges instigated by the behavior in the PBM industry are not anomalies that may be remedied by occasional litigation,” Meador wrote. “Rather, constant investigation and litigation would be necessary to policy PBMs and prevent or cure unfair and deceptive practices. When abuse is systemic, it is the place of regulation, not litigation, to solve the problem.”

That review was published in 2011 by Annals of Health Law.

Already on board

Ferguson is the newest appointee of the five-member commission. He took the post in April, joining Khan, Slaughter, Bedoya and Holyoak.

“Andrew has a proven record of standing up to Big Tech censorship, and protecting freedom of speech in our great country,” the president-elect said on X, formerly Twitter. “Sworn in as a commissioner on April 2, 2024, he will be able to fight on behalf of the American people on day one of my administration.”

The president-elect’s posted said Ferguson previously served as solicitor of Virginia and he worked as an antitrust litigator at several firms in Washington, D.C. He served as chief counsel to Sen. Mitch McConnell of Kentucky, and as Republican counsel to the Senate Judiciary Committee, according to his official biography. An alumnus of the University of Virginia for his undergraduate and law degrees, Ferguson clerked for Judge Karen L. Henderson on the U.S. Court of Appeals for the D.C. Circuit and for U.S. Supreme Court Justice Clarence Thomas.

Ferguson responded on X: “Thank you President Trump. Under your leadership, American businesses will become stronger and more competitive, and will better serve workers and consumers, than ever before. I’m honored that you’ve chosen me to be FTC Chairman in your mission to make our country great again.

“At the FTC, we will end Big Tech’s vendetta against competition and free speech. We will make sure that America is the world’s technological leader and the best place for innovators to bring new ideas to life,” Ferguson said.

Since the November election, news reports have speculated on the future of Khan and the Commission.

Reuters reported Khan’s seven-year term expired in September, but she can stay on as a commissioner until a replacement is confirmed.

Meeting Meador

The president-elect also used X to announce his nomination of Meador, a partner in the boutique antitrust law firm Kressin Meador Powers LLC, to be the apparent successor to Khan as commissioner.

“Thank you, Mr. President. It will be the honor of a lifetime to serve,” Meador said on X.

Meador earned his undergraduate degree from the University of Chicago and his law degree from the University of Houston Law Center.

Meador has served as deputy chief counsel for antitrust and competition policy to Sen. Mike Lee, the senior Republican on the Senate Judiciary Antitrust Subcommittee. He worked as an antitrust enforce for the FTC and U.S. Department of Justice’s Antitrust Division, and in private practice, according to the biography posted by the Trump transition team.

On X, Meador said he was excited to work with Ferguson, the rest of the Commission, and staff to help American consumers.

“President Trump knocked it out of the park gain by picking (Meador) to be the third Republican FTC Commissioner,” Ferguson said on X. “He’s a brilliant lawyer who will be a vital part of the Trump Administration’s FTC. I look forward to him joining the Commission ASAP.”

No more than three commissioners may be of the same political party. The commissioners serve seven-year terms and based on the calendar, it appeared Slaughter’s term will end in May 2025.

Antitrust efforts at DOJ

Heading for the U.S. Justice Department, Slater has served at the FTC and as an economic adviser to Trump and Vice President-elect J.D. Vance, and for Fox Corp. and Roku.

“Big Tech has run wild for years, stifling competition in our most innovative sector and, as we all know, using its market power to crack down on the rights of so many Americans, as well as those of Little Tech!” Trump said on X. “I was proud to fight these abuses in my first term, and our Department of Justice's antitrust team will continue that work under Gail's leadership.

“In her new role, Gail will help ensure that our competition laws are enforced, both vigorously and FAIRLY, with clear rules that facilitate, rather than stifle, the ingenuity of our greatest companies,” the president-elect’s announcement said.

Slater will succeed Assistant Attorney General Jonathan Kanter, who recently spoke about health care and the government antitrust actions needed to ensure access for Americans.