On Thursday, March 7, 2024, the U.S. Senate confirmed two nominees for the open seats on the Federal Trade Commission:  Andrew N. Ferguson, former solicitor general of the Commonwealth of Virginia; and Melissa Holyoak, former solicitor general with the Utah Attorney General’s Office.  With this confirmation of two new Republican Commissioners, the FTC is one step closer to a full slate of five bipartisan Commissioners.  The Senate also re-confirmed Commissioner Rebecca Kelly Slaughter for a second term.  President Biden had nominated Ferguson and Holyoak on July 11, 2023, and renominated Slaughter on February 13, 2023. 

Upon swearing in, which is expected to take place this week, the FTC will have its full complement of five Commissioners.  By statute, no more than three FTC Commissioners may be of the same political party at a time.  For nearly a year, the Commission had been comprised of three Democrats—Chair Lina Khan and Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya.  Ferguson and Holyoak will be the first Republican Commissioners in nearly one year, following Christine S. Wilson’s resignation on March 31, 2023.  These two new Republican Commissioners will not impact the existing Democratic majority on the Commission, but will vote on all enforcement and policy recommendations that require Commission approval.  

In a press release announced last Friday, FTC Chair Lina M. Khan congratulated the new and returning Commissioners:

Congratulations to Andrew Ferguson and Melissa Holyoak on their confirmations, and to Commissioner Slaughter on her re-confirmation . . . I look forward to welcoming Andrew and Melissa to the FTC as we work to vigorously protect Americans from unfair methods of competition and unfair and deceptive business practices.

Prior to serving as solicitor general in Virginia, Ferguson served as chief counsel to U.S. Senate Republican leader Mitch McConnell (R-KY), and as Republican counsel on the U.S. Senate Judiciary Committee.  Ferguson also worked in private practice at several law firms in Washington, D.C.  Following his undergraduate and legal education at the University of Virginia, Ferguson clerked on the U.S. Court of Appeals for the D.C. Circuit for Judge Karen L. Henderson, and on the U.S. Supreme Court for Justice Clarence Thomas.  His term will expire on September 25, 2030.

Before her role as Utah’s solicitor general, Holyoak was president and general counsel of a D.C.-based public interest law firm, Hamilton Lincoln Law Institute.  She also held public interest attorney positions with the Competitive Enterprise Institute and the Center for Class Action Fairness, and worked in private practice.  Holyoak received both her undergraduate and law degrees from the University of Utah.  Her term will expire on September 25, 2025.

Slaughter joined the Commission in May 2018, and served as Acting Chair from January 2021 to June 2021.  Prior to serving as Commissioner, Slaughter was chief counsel to U.S. Senate Democratic leader Charles Schumer (D-NY), and worked in private practice.  Slaughter earned both her undergraduate and law degrees from Yale University.  Her second term will expire on September 25, 2029. If you have any questions about how this development might impact FTC activity going forward, please feel free to reach out to any members of Covington’s Advertising & Consumer Protection, Antitrust, and Privacy and Cybersecurity practice groups

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Photo of Laura Kim Laura Kim

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim…

Laura Kim draws upon her experience in senior positions at the Federal Trade Commission to advise clients across industries on complex advertising, privacy, and data security matters. She provides practical compliance advice and represents clients in FTC and State AG investigations. Ms. Kim advises on a wide range of consumer protection issues, including green claims, influencers, native advertising, claim substantiation, Made in USA claims, children’s privacy, subscription auto-renewal marketing, and other digital advertising matters. In addition, Ms. Kim actively practices before the NAD, including recent successful resolution of matters for both challengers and advertisers. She co-chairs Covington’s Advertising and Consumer Protection Practice Group and participates in the firm’s Internet of Things Initiative.

Ms. Kim re-joined Covington after a twelve-year tenure at the FTC, where she served as Assistant Director in two divisions of the Bureau of Consumer Protection, as well as Chief of Staff in the Bureau of Consumer Protection and Attorney Advisor to former Chairman William E. Kovacic. She worked on key FTC Rules and Guides such as the Green Guides, Jewelry Guides, and the Telemarketing Sales Rule. She supervised these and other rule making proceedings and oversaw dozens of the Commission’s investigations and enforcement actions involving compliance with these rules. Ms. Kim also supervised compliance monitoring for companies under federal court or Commission order.

Ms. Kim also served as Deputy Chief Enforcement Officer at the U.S. Department of Education, where she helped establish a new Enforcement Office within Federal Student Aid. In this role, she managed investigations of higher education institutions and oversaw issuance of fines and adverse actions for institutions in violation of federal student aid regulations. Ms. Kim also supervised the borrower defense to repayment division and the Clery campus safety and security division.

Photo of Terrell McSweeny Terrell McSweeny

Terrell McSweeny, former Commissioner of the Federal Trade Commission (FTC), has held senior appointments in the White House, Department of Justice (DOJ), and the U.S. Senate. At the FTC and DOJ Antitrust Division, she played key roles on significant antitrust and consumer protection…

Terrell McSweeny, former Commissioner of the Federal Trade Commission (FTC), has held senior appointments in the White House, Department of Justice (DOJ), and the U.S. Senate. At the FTC and DOJ Antitrust Division, she played key roles on significant antitrust and consumer protection enforcement matters. She brings to bear deep experience with regulations governing mergers and non-criminal, anti-competitive conduct, as well as issues relating to cybersecurity and privacy facing high-tech, financial, health care, pharmaceutical, automotive, media, and other industries. Terrell is internationally recognized for her work at the intersection of law and policy with cutting edge technologies including Artificial intelligence (“AI”), Digital Health, Fintech, and the Internet of Things (“IoT”). Clients benefit considerably from her extensive relationships with other enforcement agencies around the world.

Prior to joining the Commission, Terrell served as Chief Counsel for Competition Policy and Intergovernmental Relations for the U.S. Department of Justice, Antitrust Division. She joined the Antitrust Division after serving as Deputy Assistant to the President and Domestic Policy Advisor to the Vice President from January 2009 until February 2012, advising President Obama and Vice President Biden on policy in a variety of areas.

Terrell’s government service also includes her work as Senator Joe Biden’s Deputy Chief of Staff and Policy Director in the U.S. Senate, where she managed domestic and economic policy development and legislative initiatives, and as Counsel on the Senate Judiciary Committee, where she worked on issues such as criminal justice, innovation, women’s rights, domestic violence, judicial nominations, immigration, and civil rights.

Photo of Andrew Smith Andrew Smith

Andrew Smith advises clients on retail financial services, data protection, advertising and consumer protection, technology, credit reporting, and e-commerce issues. He assists banks, non-bank lenders, technology companies, and their vendors with regulatory compliance, litigation, and transactional matters.

Prior to re-joining the firm, Andrew…

Andrew Smith advises clients on retail financial services, data protection, advertising and consumer protection, technology, credit reporting, and e-commerce issues. He assists banks, non-bank lenders, technology companies, and their vendors with regulatory compliance, litigation, and transactional matters.

Prior to re-joining the firm, Andrew served as Director of the Bureau of Consumer Protection at the Federal Trade Commission (FTC), where he was focused on investigations and enforcement of privacy, data security, financial services, and marketing laws and regulations across a broad range of areas, including fair lending, technology platforms, digital advertising, payments, telemarketing, lead generation, affiliate marketing, consumer reporting, and small business financing. He also oversaw the Bureau’s extensive rulemaking and workshop proceedings, including on endorsement guides, security of financial data, subscription marketing, contact lenses, and children’s privacy. Additionally, he led the FTC’s COVID-19 pandemic-related enforcement and consumer education efforts. In a previous role as Assistant to the Director of the Bureau of Consumer Protection at the FTC, Andrew led a team of professionals to develop and draft ten rules and six studies under the Fair Credit Reporting Act.

Andrew represents clients before federal and state agencies—particularly the FTC and Consumer Financial Protection Bureau (CFPB)—in law enforcement and rulemaking proceedings. He regularly advises companies on the requirements of the GLBA, FCRA, DPPA, ECOA, FDCPA, TCPA and TSR, FTC Act, Dodd-Frank Act, and analogous state laws, including state insurance privacy laws and security breach notification requirements.

Photo of Emmie Habtemariam Emmie Habtemariam

Emmie Habtemariam is an associate in the firm’s Washington, DC office. She is a member of the Advertising and Consumer Protection Group, the Anti-Corruption/FCPA Group, and the White Collar Defense and Investigations Group.