January 29, 2025

Podcast - What to Expect from the New FTC Leadership

Clearly Conspicuous Podcast Series

In this episode of his "Clearly Conspicuous" podcast series, "What to Expect from the New FTC Leadership," consumer protection attorney Anthony DiResta discusses a Jan. 22, 2025, press release from the Federal Trade Commission (FTC) outlining new agency priorities under the Trump Administration. The press release emphasizes the elimination of programs related to diversity, equity and inclusion (DEI) within the federal government, marking a shift in the philosophical direction of the FTC. This episode focuses on other potential changes in FTC operations under Chairman Andrew Ferguson and explores how these shifts will affect compliance and advocacy strategies for companies dealing with the FTC, including alternative approaches aligned with the administration's agenda.

Listen to more episodes of Clearly Conspicuous here.

Good day and welcome to another podcast of Clearly Conspicuous. As we've noted in previous sessions, our goal in these podcasts is to make you succeed in this current environment, make you aware of what's going on with the federal and state consumer protection agencies, and give you practical tips for success. As always, it's a privilege to be with you today. 

New FTC Chairman Issues Press Releasing Pointing Toward New Agency Priorities

Today we discussed a January 22, 2025, press release that clearly has implications for the direction of the Federal Trade Commission in both one, the philosophical direction of the Commission, and two, the ways in which advocacy before the FTC can fundamentally change. Let me read you verbatim the contents of the FTC press release.

Today, Federal Trade Commission Chairman Andrew N. Ferguson announced that the agency is delivering on the promise that President Trump made to the American people and issued the following statement: "DEI is a scourge on our institutions. It denies to all Americans the constitutional promise of equality before the law. It divides people into castes on the basis of immutable characteristics and treats them as caste members rather than as individuals. It stokes tensions by elevating race and other immutable characteristics above merit and excellence. It promotes invidious discrimination, and it violates federal and natural law."

Continuing verbatim from the press release, "The Biden-Harris Administration reveled in this pernicious ideology. They encouraged it and then festered within the federal government for four years. No more. President Trump was elected on a promise to confront this dangerous ideology and free the federal government from this illegal and discriminatory practice. Within hours of his inauguration, he delivered on this promise to the American people. He issued three executive orders entitled, 'Ending Radical and Wasteful Government DEI Programs and Preferencing,' 'Initial Rescissions of Harmful Executive Orders and Actions,' and 'Ending Illegal Discrimination and Restoring Merit-Based Opportunity.' Those three orders collectively terminate DEI-related activities and programs within the federal government. In doing so, President Trump is enforcing federal civil rights laws, protecting equality before the law and adhering to the Constitution."

The press release continues to inform that Chairman Ferguson has taken the following actions to protect the FTC's employees and the American people from DEI: "We've closed the FTC's DEI office, the Office of Workplace, Inclusivity and Opportunity, and have placed all employees within that office on administrative leave; terminated the Diversity Council; removed materials promoting DEI on the Commission's website; ordered a review of all FTC contracts, which concluded that no FTC contracts currently in force contain DEI ideology; ordered the heads of the Commission's bureaus and offices to conduct an internal audit by tomorrow to ensure total compliance with President Trump's orders and terminate any non-compliant programs immediately; ordered an immediate review of all Commission orders to ensure that the Biden Administration's DEI dictates did not make their way into formal commission decision; and finally forbid the Commission from promoting DEI in any internal or external operations rules, law enforcement decisions or hiring decision.

The press release concludes: "Some DEI-related directives, documents or programs, including the current strategic plan, may not necessarily be brought into compliance under the Chairman existing authority. Accordingly, Chairman Ferguson will make a motion requesting that the Commission delegate to hand the authority he needs to be able to comply fully with President Trump's orders."

That's the end of the press release, and the chairman has obtained that authority.

Analysis of and Takeaways from the Press Release

So, ladies and gentlemen, here's my take. At the outset, let me state that I am not providing any input on DEI policies — no legal analysis, no discussion on the merits of DEI, no opinions about DEI whatsoever. Rather, I am providing my thoughts on the ways in which the FTC may change under a Trump Administration and under the chairmanship of Andrew Ferguson.

I was a director at the FTC many moons ago when Robert Pitofsky was chairman. Bob was a former dean of the Georgetown Law School, and he operated the commission in an apolitical fashion on both competition and consumer protection fronts, focusing exclusively on the laws and regulations governing the congressional jurisdictional grant of deception and unfairness, with a great respect for precedent like a district court judge would while examining closely market trends and realities as the internet was in its infancy. Over the past 25 years, under both Republican and Democratic presidential administrations, as defense counsel I've witnessed the FTC operate in accordance with an established, apolitical protocol and a respect for precedent and a respect for facts. Even under former Chairman Lina Khan, while the philosophical approach move dramatically in a more pro-regulatory and a more pro-consumer, less business-friendly way, the advocacy was not so much politically driven. Rather, it was purely policy driven, and there was a respect for protocol, precedent and facts in approaching investigations and initiatives. As companies conduct compliance management and counsel defend companies in FTC matters, there will obviously be a need to focus on precedent and facts, as always, as well as the need to follow internal protocol.

Yet now with Chairman Ferguson, and given the tone and content of his remarks about DEI as well as his recent dissents, the approach of the FTC may indeed fundamentally change. We'll clearly see a big change in the types of actions, investigations, rulemaking and initiatives that the Commission promotes, but we may also see a change in the way companies must now comply with FTC pronouncements, as well as the ways in which council must approach the FTC in matters before the Commission. What resonates with "the jury" may require some new arguments that are politically or in sync with President Trump's agenda. Practically speaking, this may provide more opportunities for new forms of advocacy, different types of arguments and novel and creative approaches.

Again, these comments are not intended to provide any input on the merits or detriments of DEI policies, and I did not provide legal analysis and did not provide any discussion on substantive issues related to DEI. Rather, ladies and gentlemen, I think you will definitely see a fundamental change in the way the FTC will operate in many respects.

I look forward to identifying and addressing the key issues and developments and provide strategies for success. As always, I wish you continued success and a meaningful day. Thank you.

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