A Conversation With FTC Chairman Andrew Ferguson: Enforcement Priorities and Practical Advice for...

Sure, very happy to be on. It's good to talk with you again, Graham. I took antitrust in law school with Tom Nachbar who at the time was the only guy at UVA who was teaching antitrust and really liked it and after my first clerkship I went off to big law. I started my career at Covington a long time ago and from everything that I had seen and learned in law school, antitrust seemed like it was probably the least boring big law practice for a young associate. And I would say that the things in law school, the classes I had most enjoyed were antitrust, Fed courts, and con law and Fed courts being, you know, a species of constitutional law more or less. One of the things that had most interested me about antitrust is that like constitutional law, it rewards creativity because most of the principles in antitrust are pretty generally stated and then your ability to win cases depends often on the cleverness of your argument, which can be true in constitutional law as opposed to a lot of the sort of areas of law that are governed by law codes. So, it interested me for that reason and then one of the cool things about antitrust and this is true in my private sector practice is you have to learn a lot about one industry very quickly, whether you're doing a deal or a conduct case. You have to figure out how some market or industry works. You have to figure it out very quickly and you have to figure it out pretty in depth. And then you work on that case for as long as it lasts. In the case of a merger, that can be, you know, 6 months to 8 months and in the case of a conduct case, that can be years. And then you move on to like a completely different market and industry and the variety was very interesting. So, my introduction to the practice of law was in antitrust. And then after my clerkships, when I went back to big law, it was all antitrust, both deal work and litigation. So, that was my introductory experience to antitrust.

It's affected it a number of ways. Number one, I learned from being Solicitor General about the importance of consumer protection law. Most big law practices have, if they have a consumer protection practice, it's a part of their like competition practice. And when I was coming up, it was like a red-headed stepchild of antitrust. It was often limited to some FTC work, some false claims work, although a lot of false claims work is handled by the like Medicare or Medicaid practice of the law firm. And then some state AG work, but it was considered sort of the like less rigorous version of antitrust. It was the less rigorous form of consumer protection law or of like consumer law. And then product liability was sort of its own thing, super litigation focused as opposed to litigation and regulatory like consumer protection. And then as a state SG, I realized pretty quickly two things. One, consumer protection work is intensely popular. It puts money back in people's pockets and I don't think people feel a stronger sense of vindication or justice from how their government executes the laws apart from criminal law enforcement. When a bad guy goes to jail, than they do from consumer protection where a bad guy has to pay back what he took. So, that was the first, is it's intensely popular. And second, given that the laws are pretty broad, there's a fair amount of good work that can be done if you focus on consumer protection and if you're clever and careful with your arguments. And when I became a minority commissioner and then chairman, the first Trump administration and the Biden administration had brought a series of big monopoly cases on the antitrust side against big tech firms. President Trump launched one against Google, launched one against Meta, President Biden launched one against Google and one against Apple. And then another against Amazon. And I thought several of those cases were righteous. I litigated one of the Google cases alongside of the Biden administration. And then I inherited President Trump's Meta case from his first term, which was careening toward trial when I became chairman. But the upshot of most of these cases, at least the three that were litigated to judgment in the district courts, is even if the government demonstrates that a monopoly exists, it's very difficult for the government to get a sort of weighty remedy. They can get important remedies, but courts are just not doing structural remedies in monopoly cases. And haven't for many decades. And I watched this happen and sort of thought, well, if the government spends these incredible resources on these righteous cases, but the litigation can take half a decade or more, such that the market that you're litigating over has changed pretty dramatically by the time a judge is returning judgment. And then at the end is a remedy that isn't necessarily what the government was trying to get, I begin to wonder if there are ways that we can protect consumers from big business abuses that don't entail 5 to 7 years of litigation, a somewhat dissatisfying remedy at the end, and dramatic market changes in the middle that can lead one to wonder whether had you known the market was going to change dramatically between when the complaint was filed and when judgment was issued you would issue the case. But consumer protection law can get results far more quickly. It can drive right at the abusive practice rather than having to convince a judge or a jury about grand market structural questions. All you have to do is explain to a judge or jury they lied or what they did was indefensibly unfair. And those sort of cut at moral principles that everyone intuitively understands in a way that big structural antitrust cases don't necessarily. So I made a decision early on that we weren't going to lose focus on antitrust. We brought four major new cases last year to litigation in addition to bringing and then subsequently settling more than half a dozen other multi-billion dollar cases including I think one of the most important antitrust cases in the last 25 years against the ad companies for having engaged in a concerted refusal to deal against certain types of advertising platforms. But I made a decision very early on that we were going to supercharge our consumer protection work with the goal of trying to recover as much wrongfully taken money as we possibly could for consumers, put it back in their pockets, restore justice to the market, restore citizens' faith in their government's ability to right wrongs. And we have. We recovered more than $2 billion in our first year of the second Trump administration which is far more than the Biden administration obtained in four. Just last week we recovered $325 million in two major cases in a single day for consumers. $325 million worth of consumer redress in a single day. We are well on pace to clear a billion dollars again this year and 3 weeks ago we brought a case against Amazon along with 22 state attorneys general of both parties accusing Amazon of having rigged the auction system for its lucrative advertising market for many years to the tune of probably more than 20 billion dollars. That cost American businesses including hundreds of thousands of small and medium-sized American firms that are trying to advertise their goods on Amazon billions of dollars. So we hadn't lost our focus on antitrust, but I had very intentionally tried to supercharge the consumer protection work at the FTC and I'm very very pleased with the success of the agency over these last 20 months and its ability to really do core consumer protection work at scale and at high volume very very competently and effectively.