Antitrust Law Daily Wrap Up, AGENCY NEWS: Down two commissioners, FTC’s enforcement mission continues: McSweeny, (Apr 7, 2016)

By Jeffrey May, J.D.

FTC Commissioner Terrell McSweeny does not believe that the recent departure of two of her fellow commissioners has impacted the agency’s enforcement mission. Although she told attendees of the American Bar Association Section of Antitrust Law Spring Meeting’s panel discussion on hot topics today that she misses her colleagues, she said that the Commission continues to function well, albeit facing some practical problems from the departures.

McSweeny joked about feeling lonely with the exit of Julie Brill at the end of last month and Joshua Wright in August 2015. But that situation will probably not change any time soon. President Obama has not named a replacement for either Wright, a Republican, or Brill, a Democrat. The vacancies on the Commission will likely be filled by the next administration.

Although the agency’s enforcement mission continues, having three members instead of a full panel of five members does make it more difficult for the commissioners to consult with each other, according to McSweeny. The Sunshine Act limits an FTC commissioner’s ability to have a bilateral meeting with a fellow commissioner in a three-member Commission, since two members would constitute a majority. “It’s hard to reach a consensus if you can’t talk to people,” McSweeny noted.

The commissioner also suggested that the loss of two FTC members has had a negative impact on the public conversation. There are not five commissioners offering their different points of view. “The public dialogue isn’t as rich,” McSweeny said.

In any event, McSweeny noted that she and her fellow commissioners would “keep persevering.”

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