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...“There is no competition,” he said.

Concerns About Competition

RealPage’s software has gained traction at a time when the Biden administration, concerned about rising prices and corporate concentration, is looking to bolster enforcement of rules meant to ensure competition is flourishing.

To win cases, antitrust prosecutors have traditionally needed to show that competitors agreed among themselves to tamper with pricing. “If competitors agreed among themselves to use the same algorithm and to share information among themselves with the purpose of stabilizing pricing, that would be per se illegal,” said Stucke, the former antitrust prosecutor.

If they simply shared information without agreeing to manipulate pricing, the question of whether antitrust law was violated would be more complex, he said. Stucke said he knew of no cases where companies had been prosecuted for what’s known as tacit collusion while using the same algorithm to set prices.

But Maureen K. Ohlhausen, who was then the acting chair of the Federal Trade Commission, said in a 2017 talk that it could be problematic if a group of competitors all used the same outside firm’s algorithm to maximize prices across a market.

She suggested substituting “a guy named Bob” everywhere the word algorithm appears.

“Is it OK for a guy named Bob to collect confidential price strategy information from all the participants in a market and then tell everybody how they should price?” she said. “If it isn’t OK for a guy named Bob to do it, then it probably isn’t OK for an algorithm to do it either.”

Through a representative, Ohlhausen declined to comment on RealPage.

RealPage’s software raises multiple concerns, experts said.

Courts have frowned on sharing nonpublic data among competitors. Lease transaction data is not always public.

As far as RealPage’s claim on its website that it uses “disciplined analytics that balance supply and demand to maximize revenue growth,” Stucke said that businesses can’t usually control supply and demand on their own. “Normally that’s left to market forces,” he said.

The RealPage User Group — the forum for apartment managers who use the company’s products — encourages rivals to work together, something that has been challenged as anti-competitive in antitrust prosecutions, too. The company’s website says the group aims to “promote communications between users,” among other things.

Starting out with 10 members in 2003, the group has grown to more than 1,000 participants, according to the website. A dozen subcommittees, including two focused on revenue management, meet in invitation-only sessions at the company’s annual conference, RealWorld, and participate in a conference call each quarter.

Those sorts of collaborations, Stucke said, “could raise an antitrust red flag.”

If clients are tampering with market forces, their assertions in RealPage marketing videos that its software keeps prices and occupancy “more stable” could also become relevant in court, Stucke said. Similar comments have been used as evidence in previous antitrust cases.

And the exhortations by RealPage and real estate executives for companies to use YieldStar and let some units sit vacant to raise prices are reminiscent of a legal case in the early 1900s, he said, where lumber companies shared information and a directive to reduce supply in order to push up prices.

In an email to ProPublica, RealPage dismissed the notion that the company was using market data improperly.

The company said that using actual rents helps the company “capture a truer picture of price elasticity and affordability,” which reduces the odds a unit is overpriced. And the lease transaction data RealPage is using isn’t always private; sometimes such data is disclosed, the company said, such as when publicly traded real estate firms make reports.

The FTC, which has broad authority to bring enforcement cases against businesses for anti-competitive practices, said in 2021 that it was seeking a more active role in such cases.

A spokesperson for the FTC declined to comment on RealPage’s pricing software.

The agency has tangled with RealPage before: In 2018, the company agreed to pay $3 million to settle an FTC complaint that the company had failed to do enough to make sure personal information used in its tenant screening product was accurate. RealPage did not admit wrongdoing in the settlement.

Higher Rents Are Burdening More Tenants

Drama over rising rent costs — now a key driver of inflation — has been increasingly public. The year before the pandemic, roughly 46% of renters in the U.S. spent more than 30% of their income on rent and therefore met the definition of cost-burdened, Harvard University’s Joint Center for Housing Studies found.

In mid-September in Washington, D.C., angry protesters disrupted the normally sedate yearly conference held by the National Multifamily Housing Council. Before security ejected them, they seized the stage and recounted how their families had been harmed by an inability to find safe, affordable housing.

At the center of the acrimonious debate has been RealPage’s Jay Parsons....

Roper told ProPublica that when he was developing the YieldStar software more than a decade ago, he was concerned about avoiding both issues. He also said he didn’t want to misuse private data in pricing.

“I was highly sensitized to: You just don’t do it,” Roper said.

Despite differences in the software’s design, RealPage acquired LRO in 2017 after months of scrutiny by the antitrust division of the justice department. Federal regulators review mergers above a certain size — right now, it is transactions valued at $101 million — and typically allow them to proceed after only a preliminary review. But some are flagged for a more extensive look. The government can challenge a merger in court if it believes it could substantially harm competition.

RealPage’s purchase of LRO received such a second look, but the DOJ allowed it to proceed in late 2017. The department did not respond to requests for comment.

The approval allowed RealPage to acquire its only significant competitor, Roper said, adding, “I was surprised the DOJ let that go through.”

RealPage was pricing 1.5 million units, and the acquisition of LRO would double that, Steve Winn, RealPage’s then-CEO, said at a mid-2017 investor conference. “I don’t think there’s any concentration, enough concentration, of buying or pricing power here” to warrant DOJ concerns, he said. A third company had a substantial footprint in the market, Winn said, but property managers’ own manual pricing processes or proprietary systems were RealPage’s largest competitor.

“We expect our combined platform to drive accelerated, sustained revenue growth,” Winn said in a media release announcing the deal.

RealPage’s influence was burgeoning. That year, the firm’s target market — multifamily buildings with five or more units — made up about 19 million of the nation’s 45 million rental units. A growing share of those buildings were owned by firms backed by Wall Street investors, who were among the most eager adopters of pricing software.

RealPage renamed its combined pricing software AI Revenue Management. By the end of 2020, the firm was reporting in a Securities and Exchange Commission filing that its clients used its services and products to manage 19.7 million rental units of all types, including single-family homes. The private equity firm Thoma Bravo bought the public company a few months later for $10.2 billion.

Winn, whose net worth Forbes estimates at $1.7 billion, stepped aside. He did not respond to requests for comment.

A spokesperson for Thoma Bravo declined to comment.

Who Uses the Software and How It Works

Somewhere around 2016, according to one trade group, the industry’s use of the pricing software began to achieve “critical mass.”

The more property managers who sign on to RealPage services, the more data flows into the company’s repository. That in turn aids its pricing service, which the company says “leverages multifamily’s largest lease transaction database.”

RealPage’s clients include some of the largest property managers in the country. Many favor cities where rent has been rising rapidly, according to a ProPublica analysis of five of the country’s top 10 property managers as of 2020. All five use RealPage pricing software in at least some buildings, and together they control thousands of apartments in metro areas such as Denver, Nashville, Atlanta and Seattle, where rents for a typical two-bedroom apartment rose 30% or more between 2014 and 2019.

---

4 24

Maureen Kraemer Ohlhausen (born April 5, 1962) is an American lawyer who is a former Commissioner of the Federal Trade Commission, a position she held from April 4, 2012, to September 25, 2018.^[1]

On January 26, 2017, President Donald Trump designated Ohlhausen to serve as Acting Chairwoman of the FTC.^[2] In January 2018, she was nominated by President Trump to a seat on the United States Court of Federal Claims. Ohlhausen withdrew her nomination for the federal judiciary in December 2018, opting instead to join Baker Botts as partner and co-chair of the firm's antitrust practice.

Early legal career and education

Ohlhausen earned her Bachelor of Arts, with honors, from the University of Virginia in 1984, and received a Juris Doctor with distinction from George Mason University in 1991.^[1] She clerked for Judge Robert J. Yock of the United States Court of Federal Claims from 1991 to 1992 and later spent five years at the United States Court of Appeals for the District of Columbia Circuit, serving as a law clerk for Judge David B. Sentelle and as a staff attorney.^[1]

Ohlhausen previously served at the FTC for eleven years, most recently as Director of the Office of Policy Planning from 2004 to 2008, where she led the FTC's Internet Access Task Force. She was also Deputy Director of that office. From 1998 to 2001, Ohlhausen was an attorney advisor for former FTC Commissioner Orson Swindle, advising him on competition and consumer protection matters. She started at the FTC General Counsel's Office in 1997.^[1]

INSEERT Swindle served as executive director of United We Stand America and spokesman for Ross Perot's 1992 presidential campaign.^[4]

From late 2005 until August 2009, Swindle served as a Senior Policy Advisor at the law firm of Hunton & Williams LLP in Washington, D.C.^[5] His specific charge was within the firm's Center for Information Policy Leadership, which was founded to "develop innovative, pragmatic approaches to privacy and information security issues from a business-process perspective while respecting the privacy interests of individuals." The center has approximately 40 corporate members including American Express, Eli Lilly, GE, Microsoft, IBM, Procter & Gamble, and Wal-Mart.

Swindle previously served on the board of Citizens Against Government Waste^[6] (CAGW), an independent political advocacy group that seeks to eliminate waste, mismanagement, and inefficiency in the federal government.

On September 2, 2008, he gave the opening speech on the second day of the Republican National Convention in Saint Paul, Minnesota, during which he introduced veterans and fellow prisoners of war in the crowd. He also introduced President George H. W. Bush, who ran against Swindle's candidate Perot in the 1992 presidential election.^[7] ENDIT

Ohlhausen was on the adjunct faculty at George Mason University School of Law, where she taught privacy law and unfair trade practices. She served as a senior editor of the Antitrust Law Journal and as a member of the American Bar Association's Task Force on Competition and Public Policy. She has authored a variety of articles on competition law, privacy, and technology matters.^[1]

From 2009 to 2012, Ohlhausen was a partner at Wilkinson Barker Knauer, LLP, where she focused on FTC issues, including privacy, data protection, and cybersecurity.^[1]

In 2012, President Barack Obama nominated Ohlhausen to the Federal Trade Commission, where she served until her term expired in September 2018.

In 2024, Ohlhausen joined the law firm of Wilson Sonsini as a partner.^[3]

Nomination to Court of Federal Claims

On January 23, 2018, President Trump announced his intent to nominate Ohlhausen to an undetermined seat on the United States Court of Federal Claims.^[4] On January 24, 2018, her nomination was sent to the United States Senate. She was nominated to the seat vacated by Judge Lawrence J. Block, who retired on January 8, 2016.^[5] On May 9, 2018, a hearing on her nomination was held before the Senate Judiciary Committee.^[6] On June 7, 2018, her nomination was reported out of committee by an 11–10 vote.^[7]

In December 2018, Ohlhausen announced that she had withdrawn her nomination for the federal judiciary, opting instead to join Baker Botts as partner and co-chair of the firm's antitrust practice. She said "The nomination was a great honor, but when it became clear that I was unlikely to get confirmed before my [FTC] term ended, I began to look and went out into the market."^[8]

Memberships

She has been a member of the Federalist Society since 1992.^[9]

Personal life

Ohlhausen lives in Virginia with her husband, Peter Ohlhausen, and their four children.^[1]

See also

• Donald Trump judicial appointment controversies

References

1. ^ Jump up to:^a ^b ^c ^d ^e ^f ^g "Statement of Acting FTC Chairman Ohlhausen on Appointment by President Trump" (Press release). Washington, DC: Federal Trade Commission. January 25, 2017. Retrieved March 9, 2017.
2. Fung, Bryan (January 25, 2017). "Trump names Maureen Ohlhausen as acting FTC chairwoman". The Switch. Washington Post. Retrieved March 9, 2017.
3. Remaly, Ben. "Wilson Sonsini hires Ohlhausen". Global Competition Review. Retrieved January 5, 2024.
4. "President Donald J. Trump Announces Tenth Wave of Judicial Nominees" White House, January 23, 2018 This article incorporates text from this source, which is in the public domain.
5. "Eight Nominations Sent to the Senate Today" White House, January 24, 2018
6. United States Senate Committee on the Judiciary: Nominations for May 9, 2018
7. "Results of Executive Business Meeting" (PDF). www.judiciary.senate.gov. June 7, 2018. Retrieved December 4, 2020.
8. Lovelace, Ryan (December 6, 2018). "FTC's Ohlhausen to Join Baker Botts, Bypassing Judicial Nomination". National Law Journal. Retrieved December 21, 2018.
9. United States Senate Committee on the Judiciary: Questionnaire for Judicial Nominees: Maureen Ohlhausen

External links[]

• Appearances on C-SPAN

c hairs of the Federal Trade Commission

Categories:

• 1962 births
• Living people
• 20th-century American lawyers
• 21st-century American lawyers
• Antonin Scalia Law School alumni
• Federal Trade Commission personnel
• Antonin Scalia Law School faculty
• Obama administration personnel
• Lawyers from the Bronx
• Trump administration personnel
• University of Virginia alumni
• American women legal scholars
• American legal scholars
• 20th-century American women lawyers
• 21st-century American women lawyers
• People associated with Baker Botts

maureen-ohlhausen-88877a14

2024 BLOOMBERG

• Ex-FTC commissioner joins Silicon Valley firm Wilson Sonsini
• Joins after FTC, DOJ release overhaul of merger guidelines

A former leader at the Federal Trade Commission is joining Silicon Valley-based law firm Wilson Sonsini as the tech industry comes under increased scrutiny from the Biden administration’s antitrust regime.

Maureen Ohlhausen, who was an FTC commissioner from 2012 to 2018 and served as acting chairman for the last year and a half of her tenure, left Baker Botts Jan. 5 to join Wilson Sonsini. The firm’s big clients have included Alphabet Inc. and TikTok Inc.

Ohlhausen joins at a time of aggressive competition regulation. The FTC and Justice Department brought a combined 50 merger enforcement actions in fiscal year 2022, representing the most challenges the US has brought since it began requiring pre-merger antitrust review in 1976, Bloomberg News reported.

Software company Adobe in December abandoned plans to buy cloud-based designer platform Figma for $20 billion as it faced scrutiny from antitrust regulators. New merger guidelines released Dec. 18 also include a section on deals involving “multi-sided platforms.”

“They have been aggressive, but mergers are still getting done,” said Ohlhausen. She noted her job continues to be explaining how antitrust regulators are going to “view the deal” businesses are considering.

Ohlhausen joined Wilson Sonsini along with her Baker Botts colleague Taylor Owings, a former chief of staff in the DOJ’s antitrust division during the Trump administration.

Ohlhausen and Owings’ government experience will “greatly benefit the firm’s clients, particularly in the current climate of heightened enforcement and oversight,” Wilson Sonsini managing partner Doug Clark said in a statement.

Labor Impact

Ohlhausen said much of her work will focus on helping Big Tech firms and startups navigate antitrust developments, including an overhaul to the merger guidelines that lowered the bar that agencies use to determine whether a merger will create a monopoly. She also said she’s paying close attention to FTC rulemaking and a proposal banning employers from imposing non-compete agreements.

Enforcement will continue to be “aggressive” in 2024, she said, with reviews generally taking longer because of the more comprehensive set of questions regulators are asking about deals. But questions also remain about how courts will act in response to lawsuits.

Maureen Ohlhausen joined Wilson Sonsini in January.

Companies trying to complete a deal are “going to get more questions about labor impact. There’s a big focus on nascent competition,” Ohlhausen said. “Issues like that may impact the length or the scope of the investigation, but the legal standards haven’t really changed. We haven’t seen any big sea change in the courts.”

Wilson Sonsini’s hire of Ohlhausen and Owings comes after antitrust practice leader Scott Sher, who advised on Qualcomm’s $1.4 billion acquisition of NUVIA in 2021, left in August to join Paul Weiss. That same month, McDermott Will & Emery in August hired away Cahill Gordon’s antitrust leader Elai Katz. Paul Hastings in July hired Hunton Andrews Kurth antitrust practice leaders Ryan Phair and Craig Lee.

High Demand, More Money

The current environment has driven an uptick in demand from law firms for antitrust attorneys with litigation expertise, said Justine Donahue, a managing director at legal search firm Macrae.

“Many law firms are really asking us for antitrust litigation talent, which is something we hadn’t seen much of prior to the last year or two,” Donahue said in an interview in December.

In her role at Wilson Sonsini, Ohlhausen said she will continue to seek clearance from the FTC to work on matters that come across her desk that she may have had oversight on during her time at the agency.

“I’ve gotten clearance on lots of things because I’m careful about just making sure I’m not getting close to any line,” Ohlhausen said. “I probably overcheck for that.”

The restrictions are in place to ensure that there won’t be a conflict on the outside, especially given the high turnover in government agencies, said William Kovacic, former FTC chair who worked with Ohlhausen at the agency and called her an outstanding colleague who understands the ethics regimen well.

“You have so many people in senior leadership positions leaving government agencies,” said Kovacic, a law professor at George Washington University. “It’s because of more money, it’s because of change in lifestyle, it’s because of retirements.”

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vetting room

The Acting Chairwoman of the Federal Trade Commission (FTC),[1] Maureen Ohlhausen has worked in private FTC litigation, held a variety of posts at the FTC, and worked as a staff attorney and clerk in D.C.’s federal appeals court and the U.S. Court of Federal Claims. She now is a nominee to that very court.

Background

Ohlhausen graduated from the University of Virginia in 1984 with a B.A. in English, with distinction, and earned her J.D., with distinction, from the George Mason University School of Law in 1991.[2] Upon graduating from law school, she clerked for the U.S. Court of Federal Claims, after which she clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit from 1994-1997.

Following her clerkships, she began a 12-year stint at the FTC, where she started as an attorney in the Office of the General Counsel and ultimately became Director of the Office of Policy Planning.[3] In 2009, she was policy counsel at the Business Software Alliance, a private firm specializing in the software industry private firms centering on software and technology, and from late 2009-2012, she practiced law at FTC practice group, Wilkinson Barker Knauer, LLP, where she was a partner.[4] Ohlhausen has served as an FTC commissioner since 2012, and President Trump designated her as the FTC’s acting chairwoman in 2017.[5]

History of the seat

President Trump has nominated Ohlhausen to sit as a judge on the U.S. Court of Federal Claims, a court of special jurisdiction that hears monetary claims against the U.S. government.[6] Judges on the court serve for 15-year terms and are eligible for reappointment.[7] The seat Ohlhausen was nominated for opened up on January 8, 2016, with Judge Lawrence Block’s move to senior status. While five Obama nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8] No nominee was ever put forward for the Block seat.[9]

Legal Career & Views

Ohlhausen is a Republican and an outspoken critic of government regulation.[10] A believer in free markets, Ohlhausen has frequently used the term “‘regulatory humility’ to describe her philosophy on federal policymaking.”[11] She has also advocated deregulation of and limited governmental intervention in the marketplace, a philosophy she put into practice in nominating fellow prominent deregulation advocate Thomas Pahl to the FTC’s Bureau of Consumer Protection last year.[12]

For example, she opposes broad occupational licensure requirements (i.e., the governmental requirement of a license to pursue a particular profession or vocation).[13] Indeed, as her “first major initiative as Acting Chairman, [Ohlhausen] formed the Economic Liberty Task Force to help” prevent or roll back “unnecessary or overbroad occupational licensing and to partner with state leaders and other stakeholders.”[14] See also infra, “Speeches and Writings” for an expanded discussion of Ohlhausen’s views on this issue.

More controversially, Ohlhausen is an outspoken opponent of net neutrality laws, and instead believes that its ends can be achieved via antitrust enforcement.[15] Under the Federal Communications Commission’s (FCC) 2015 net neutrality regulations, Internet service providers’ (ISPs) were prohibited from blocking or throttling internet traffic, and from charging websites and online services for faster, more reliable services.[16] In late 2017, shortly before the FCC’s repeal of net neutrality and during Ohlhausen’s tenure as FTC chairwoman, the FCC and FTC entered into a memorandum of understanding whereby ISPs may promise consumers that they will follow net neutrality guidelines. If they break this promise, the FTC has jurisdiction to punish them for deceiving consumers. The FTC’s jurisdiction thus depends on ISPs voluntarily making, and then breaking, net neutrality promises to consumers.[17] Opining on the memorandum, Ohlhausen reiterated the FTC’s “committ[ment] to ensuring that Internet service providers live up to the promises they make to consumers.”[18]

Speeches and Writings

By virtue of her position as acting chairwoman, Ohlhausen has publicly taken a number of positions regarding market entry, market deregulation, and the effects of regulation in terms of fairness to consumers. The following samples some of her more recent speeches and writings.

Ohlhausen authored a 2016 journal article, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp?[19] The article is the most comprehensive empirical study of the FTC’s “Part 3 process,” an administrative process that empowers the FTC to challenge alleged unfair or deceptive trade practices through administrative litigation. If the FTC invokes this process and the respondent challenges the charges against it, the case is tried before an Administrative Law Judge, and then the FTC reviews the judge’s decision de novo. In the past ten years, the FTC has never rejected an action that it previously authorized. By analyzing the disposition of cases that go through the Part 3 process and the factors at play in the FTC’s charging decisions and subsequent affirmance, the article challenges Part 3 critics’ contention that the FTC’s review of its own charging decision is essentially a rubber stamp, concluding that the Part 3 process plays a crucial role in developing the law.

In May of 2017, Ohlhausen delivered a speech at a seminar covering the first 100 days of the Trump administration. She explained three of the Trump administration’s priorities pertaining to the FTC: unleash job creation, correct federal government overreach in a number of areas, and reform federal regulatory processes and reduce burdensome regulation.[20] She praised these efforts as aligning with the FTC’s efforts “to expand and strengthen our competition advocacy work,” “ prevent meaningful consumer harm, not [] redesign the economy as we see fit,” and “eliminate unnecessary and burdensome regulatory requirements that hurt our economy.”[21]

In July of 2017, Ohlhausen was the keynote speaker at an event hosted by The Heritage Foundation, a conservative think tank, where the topic was the promotion of regulatory reform for occupational licensing requirements. During the speech, Ohlhausen argued that unnecessary occupational licensure requirements are “barriers to entry” that “harm[] workers, consumers, and the economy as a whole.”[22] Unnecessary licensing requirements, she explained, are those where there are not information asymmetries between professionals and consumers, in non-technical fields, and those where consumers can “easily observe service quality.”[23] For example, “in certain health care occupations, consumers could face serious risks if treated by unqualified individuals, yet find it difficult (or impossible) to assess quality of care at the time of delivery. In such circumstances, a license requirement might help improve public health and safety.”[24] In contrast, licensing requirements in fields where “consumer risks are low or entirely speculative” are inappropriate. She used the example of cosmetology: “A bad haircut or makeup application is markedly obvious to a consumer and to all of her friends. Bad haircuts or makeup applications quickly have consequences for the cosmetologist. The consumer risk is low and fleeting, but the excessive licensure requirement is not – it creates a large burden on those seeking to enter the workforce and limits competition.”[25] More broadly, she explained that “licensure disproportionally affects those seeking to move up the lower and middle rungs of the economic ladder,” as it requires people to expend time and money on meeting often state-specific licensing requirements.[26]

In a December 2017 speech at Georgetown University, Ohlhausen explained her view that large, growing companies, such as Amazon or Google, do not unduly threaten competition and are not on track to becoming monopolies prohibited by antitrust law. Companies’ occupying a big portion of the market at one time, she explained, does not erode free and open markets, and instead the touchstone of antitrust enforcement is the actual likely harm to consumers in an open market system.[27] Monopolies, she explained, are acceptable as long as they gain consumers by merit, rather than anticompetitive practices short-circuiting their competition. Even practices such as a company’s artificially lowering its prices to eliminate competition, then raising prices once it did so, are permissible because so long as the possibility of marketplace “entry remains, possible predation [of competitors] makes no economic sense.”[28] In her concluding remarks, she described herself as neither “a champion of today’s leading Internet firms nor their foe,” and her and the FTC’s policy positions as ones “that [leading internet firms] sometimes love and sometimes hate.”[29]

Of her January 2018 nomination to the U.S. Court of Federal Claims, Ohlhausen stated: “I am honored that the President has expressed his intent to nominate me to be a judge on the U.S. Court of Federal Claims, one of the oldest federal courts in our nation. In the meantime, I will continue to serve at the Federal Trade Commission until a time when I may be so fortunate as to be confirmed to the Court of Federal Claims by the United States Senate.”[30]

FTC Administrative Decisions

Commissioner Ohlhausen has participated in over 1,000 administrative FTC decisions, including merits determinations of alleged FTC violations and policy guidance issued by the commission.[31] The following highlights positions that Ohlhausen has taken within this administrative process evincing her focus on and prioritization of free markets via deregulation:

In 2012, Ohlhausen dissented from the FTC’s decision to withdraw a 2003 policy statement that it would not pursue disgorgement (pursuit of monetary equitable relief) except in the clearest of cases of FTC violations.[32] She criticized the commission’s proffered basis for rescinding the policy statement, that it “has chilled the pursuit of monetary remedies in the

years since [its] issuance,” as not based in empirical evidence to this effect. She further criticized the commission’s stated view that, instead of the policy statement, the FTC “will rely instead upon existing law, which provides sufficient guidance on the use of monetary equitable remedies,” as a toothless statement that “ could be used to justify a decision to refrain from issuing any guidance whatsoever about how this agency will interpret and exercise its statutory authority on any issue.”[33]

Since that dissent, Ohlhausen has been vocal about her opposition to the decision to withdraw this policy statement in subsequent decisions, including those in which she concurred in the decision to pursue disgorgement. In a 2015 decision, FTC v. Cephalon, Inc., the FTC found that Cephalon had engaged in anti-competitive conduct by paying four firms to refrain from selling generic versions of Cephalon’s patented drug for an extended period of time, thereby inhibiting competition and denying patients access to lower-cost versions of the drug.[34] Ohlhausen agreed that disgorgement was appropriate, but because Cephalon’s conduct met the test laid out in the since-rescinded policy statement. She noted in her concurrence, “the incentive to pursue monetary remedies more frequently, particularly in other cases without a clear violation, may cause the Commission to neglect its special mission to develop the antitrust laws through Part III litigation and other unique tools. That concern is only heightened now that we are counting disgorgement in the billions of dollars.” She reiterated these concerns in her 2017 concurrence to In the Matter of Mallinckrodt ARD Inc., where the FTC found that a pharmaceutical company engaged in anticompetitive conduct by attempting to create a monopoly with respect to a particular drug.[35] Ohlhausen expressed “concerns about [the] aspect of the remedy” for this conduct that required the company to pay over $100 million in disgorgement. The case, Ohlhausen contended, should have been handled through the FTC’s administrative process rather than filed in federal court (a predicate for pursuing and obtaining the remedy of disgorgement).[36]

In 2013, the FTC filed a complaint against and conducted an investigation of Google, In the Matter of Google Inc., for its alleged anticompetitive practices relating to, inter alia, seeking to enjoin putative licensees of Google’s “standard essential patents” (patents required to comply with a technical standard, thereby encouraging adoption of a common platform among rival producers, which in turn fosters competition).

This, the FTC charged, violated Google’s duty to offer such patents on “fair, reasonable, and non-discriminatory terms.”[37] The FTC and Google ultimately reached an agreement whereby Google agreed to not seek such injunctions, as well as remove restrictions on the use of its online search advertising platform that may have made it more difficult for advertisers to coordinate online advertising campaigns across multiple platforms.[38]

Ohlhausen criticized the portion of the decision related to these restrictions as not premised on a showing of actual harm to competitors in the form of increased costs or Google’s monopolization of the market, thus potentially discouraging innovation by needlessly punishing Google.[39] “If our cases – particularly our standalone [unfair and anticompetitive practices] cases – are not anchored to competitive and ultimately consumer harm, then they are completely adrift. I am hopeful that the Commission will maintain its focus on competitive and consumer harm as it moves beyond this matter.”

Overall Assessment

Ohlhausen has a long, distinguished career in FTC-related private practice and the FTC itself. While her economic knowledge and experience are unimpeachable, it is not clear that her expertise relates to the subject matter of lawsuits within the U.S. Court of Federal Claims’ jurisdiction — claims for money damages arising from the United States Constitution, federal statutes, executive regulations, or an express or implied in fact contract with the United States Government.[40]

However, the economy is not an esoteric subject and her knowledge base is not inapposite to the claims the court hears, she has served in an adjuratory capacity as an FTC commissioner, and she has substantial federal clerking experience, including on the Court of Federal Claims. As such, Ohlhausen will likely be confirmed by the Senate.

---

ggl 4 24

Statement of Acting FTC Chairman Ohlhausen on ...

Federal Trade Commission (.gov)

https://www.ftc.gov › news › press-releases › 2017/01](https://www.ftc.gov/news-events/news/press-releases/2017/01/statement-acting-ftc-chairman-ohlhausen-appointment-president-trump)

Jan 25, 2017 — President Donald J. Trump has designated Maureen K. Ohlhausen as Acting Chairman of the Federal Trade Commission by a White House order.

[### Maureen K. Ohlhausen

Federal Trade Commission (.gov)

https://www.ftc.gov › about-ftc › commissioners-staff](https://www.ftc.gov/about-ftc/commissioners-staff/maureen-k-ohlhausen)

From 1998 to 2001, Ohlhausen was an attorney advisor for former FTC Commissioner Orson Swindle, advising him on competition and consumer protection matters. She ...

Missing: trump ‎| Show results with: trump

[### The Obama-era holdover still hanging onto her office

Politico

https://www.politico.com › story › 2018/05/03 › trump...](https://www.politico.com/story/2018/05/03/trump-federal-trade-commission-ohlhausen-511570)

May 3, 2018 — The last Obama-era holdover on the Federal Trade Commission is declining to step down — even after the Senate confirmed President Donald ...

[### Maureen Ohlhausen

Wikipedia

https://en.wikipedia.org › wiki › Maureen_Ohlhausen](https://en.wikipedia.org/wiki/Maureen_Ohlhausen)

Maureen Kraemer Ohlhausen (born April 5, 1962) is an American lawyer who is a former Commissioner of the Federal Trade Commission, a position she held from ...

[### Commissioners | Federal Trade Commission

Federal Trade Commission (.gov)

https://www.ftc.gov › commissioners](https://www.ftc.gov/commissioners?page=7)

President Donald J. Trump has designated Maureen K. Ohlhausen as Acting Chairman of the Federal Trade Commission by a White House order.

[### Ohlhausen has right stuff to be FTC chairman, but with ...

FTCWatch

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As speculation intensifies among antitrust and consumer protection specialists over who might lead the Federal Trade Commission in the Donald Trump ...

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