On Jan. 25, President Trump named Maureen Ohlhausen as the Federal Trade Commission’s acting chairwoman. A recent speech by Ohlhausen, who has served as a commissioner for the FTC since 2012, shed some light on the role the FTC may have under her leadership during the new administration.
Ohlhausen briefly summarized a “few areas in which the Commission succeeded” under the Obama administration, including “clamping down on pay-for-delay agreements” and challenging potentially anticompetitive hospital mergers. See FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327 (3d Cir. 2016); FTC v. Advocate Health Care Network, 841 F.3d 460 (7th Cir. 2016).
Ohlhausen then identified what she views as opportunities for the FTC under the Trump administration. First, Ohlhausen signaled a future of “regulatory humility” when she explained her “worry” about “pervasive regulation” that “imposes unnecessary and disproportionate costs on business.” She offered two solutions to regulation’s “tentacles” that “invade almost every aspect of business life”: (1) narrowing the scope of discovery to reduce the cost of compulsory process and second requests in merger review and consumer protection investigations, and (2) suggesting the FTC should “approach its intervention decisions” using her “bedrock principle” of regulatory humility. Ohlhausen’s recent publication (promoted by this tweet) states the belief likely to shape FTC policy under her watch: “When free of restraints & unnecessary regulations, the power of markets provides the best outcomes for consumers.”
Second, Ohlhausen criticized the “disregard” of intellectual property rights under the previous administration. She stated that although America “produces more technological innovation than any other country on earth,” other countries “take … American proprietary technologies without due payment.” Ohlhausen emphasized that under the Obama administration the FTC disregarded a patent owner’s right to exclude, which she believes has “sent a most unfortunate message overseas.”
Third, Ohlhausen discussed the FTC’s efforts to challenge abuses of government process and to promote economic liberty. She expressed her belief that the “FTC should increase its advocacy efforts before legislatures that weigh potentially anticompetitive legislation through its Office of Policy Planning.”
Suffice it to say that the writers of this blog see potential for significant changes at the FTC in the near future, specifically with respect to the regulatory framework surrounding antitrust issues and IP rights. Stay tuned as we cover these changes.