Published on Apr 08, 2024
New FTC Commissioner Melissa Holyoak hires attorney-advisers. Melissa Holyoak has chosen Douglas Geho, Elisa Jillson and Chris Mufarrige to fill out her team at the FTC.
Mufarrige will serve as her chief of staff, he announced in a LinkedIn post. Geho, chief antitrust counsel on the House Judiciary Committee, chaired by Representative Jim Jordan (R-Ohio), will serve as attorney-adviser on consumer protection issues, according to Politico. Jillson will serve as an attorney-adviser and was most recently counsel to the director of the FTC’s Bureau of Consumer Protection and lectures on consumer privacy at George Mason University’s Antonin Scalia Law School.
Mufarrige has been the subject of some political controversy in the past. A 2020 American Prospect piece explored his work as a “buy here, pay here” auto financier. A New York Times article the same year portrayed him as an internally divisive figure during his 2018-2019 tenure at the Consumer Financial Protection Bureau. The story said he was a key player in the Trump administration’s efforts to scrap predatory loan rules.
Mufarrige, in a comment to The Capitol Forum, described the American Prospect story as misleading and said, “I am extremely excited – and privileged – to have the opportunity to work for Commissioner Holyoak. She is a remarkable leader who is passionate about protecting consumers from anticompetitive practices. I feel very fortunate to be in her office.”
In two separate stints at the Commodity Futures Trading Commission, Mufarrige also worked closely with former Inspector General A. Roy Lavik. A 2023 CFTC oversight report found Lavik had wrongfully disclosed whistleblower identities, breached security protocol and misappropriated funds. Lavik retired shortly after the report was published.
Jonathan Jacobson is an antitrust lawyer at Wilson Sonsini who has previously represented Google and who co-authored an Antirust Source article with Mufarrige on nascent competitors. Jacobson described Mufarrige’s ideology to The Capitol Forum as a “conversative approach not unlike [former FTC Chair] Josh Wright, [but] if there is harm in the form of reduced innovation or output, he’d be an aggressive enforcer. I would speculate that he is also hostile to ex ante regulation.”
The 2020 article itself argued that antitrust enforcement against Big Tech was “largely misguided” and that “‘Nascent competitor’ acquisitions tend to add useful new features to products consumers already love, eliminate little or no current competition, supply the acquired firm’s users with far greater support and innovation, and provide a valuable exit ramp for investors, encouraging future investments in innovation.” The authors noted that they “benefited from helpful comments from Scott Sher, Bruce Hoffman, Eleanor Fox, Steve Salop, Scott Hemphill, Daniel Bitton, and Fiona Scott Morton.”
Via email, Scott Morton said: “I have not seen the written paper before. Perhaps I commented on a presentation at some past event. I disagree with the general point of the paper — as can be inferred from my role as the FTC’s expert in Illumina Grail. My paper with David Dinielli on the Facebook case also explains the harm from loss of potential or nascent competition. The authors may have found my comments helpful but they do not appear to have altered their arguments in response.”
A 2019 memo written by a disgruntled CFPB staffer, the focus of the Times article, accused Mufarrige of pressuring economists to alter their methodology to prove that deregulation of payday loans was good for consumers.
Liz Zelnick, director of Economic Security & Corporate Power at Accountable.US, a nonprofit watchdog group, told The Capitol Forum that “someone who ran a predatory auto financing business repeatedly sued for shady business practices has no business overseeing FTC enforcement of consumer protection laws – especially as the agency is actively rule-making against unfair and deceptive practices by motor vehicle dealers.”
Suffolk Law Professor Kathleen Engel accused Mufarrige of asking her questions in bad faith when she interviewed in 2019 for the CFPB Task Force, a powerful policy making committee created during the Trump administration that she later sued successfully for violating the administrative procedure act.
“He berated me with cross-examination questions on whether I was adequately conservative enough for his committee,” Engel told The Capitol Forum. “If somebody is forcing employees of federal agencies to disregard their own research to pursue another goal, to try to craft research that is more in support of the position of the power broker, that’s problematic…. The proper way to interview people is to collect information and decide if they’re a good fit. It shouldn’t be a way to get people to deny their affiliation with the political agenda or to get them to agree to it.
Mufarrige is also a close collaborator of Scalia School of Law Professor Todd Zywicki, with whom he co-teaches a class on consumer financial protection. They have also jointly written about the need for deregulation.
In a Federalist Society talk with FTC Chair Lina Khan last November, Zywicki agreed with her intention to challenge Big Tech. Zywicki, a libertarian, said he changed his views on the need for government action after he personally was affected by Big Tech’s power to censor speech.
Zywicki told The Capitol Forum that the CFPB staffer who was the source for the Times article about Mufarrige said, “The payday loan rule that the CFPB put out was embarrassing. It was just total crap. The economics is crap, the economist who did the economics is crap…that rule was total garbage.”
Regarding the relationship between Mufarrige’s prior work in auto finance and his future role at the FTC, Zywicki asked, “Does that mean if you worked at McDonald’s you can’t work on fast-food stuff? That just strikes me as not a serious argument.”
Discussing how new Republican FTC Commissioners Holyoak and Andrew Ferguson might approach their positions, Zywicki asked, “What should the role of antitrust be [in relation] to goals of free speech as opposed to just economics? Not to put words in these people’s mouths, but these are more consumer protection questions than antitrust questions. Potentially the FTC could pursue [action against Big Tech] down that lane. It’s an open question in Federalist Society circles.”
Regarding Mufarrige’s economic philosophy, Zywicki said that his “wide and diverse” background is more nuanced and subtle than “just traditional Chicago School.” For example, Zywicki said, in their joint article about deregulation “we drew very heavily on Austrian economics and public choice and things like that.”
Elisa Jillson has worked within the FTC Bureau of Consumer Protection for the past 13 years, including as counsel for Director Sam Levine. Kevin Moriarty is an attorney adviser to Chair Khan who said that Jillison is “well-respected by folks within the agency.”
Last year, Jillson was a lead staff attorney on a case accusing Amazon of violating the Children’s Online Privacy Protection Act by collecting the voice data of children under 13 years old while falsely claiming they would delete all voice recordings. Amazon settled the case.
As for Geho, he reportedly helped write a House Judiciary Committee report that described Khan’s management style as “toxic.” His colleagues described him as having a sharp legal mind.
Geho and Jillson declined The Capitol Forum’s requests for comment.
Closer look at six-figure anti-Robinson-Patman Act ad buy. Recent “Give America a Break” ads have appeared in the Washington, D.C. area. They push back on new efforts to enforce the Robinson-Patman Act, claiming that enforcement of the price-discrimination law would bring consumers high prices.
At the bottom of the ads’ website, a nonprofit called Foundation for America’s Families is listed as the sponsor. The foundation’s treasurer, according to ProPublica, is Kathy Dolbow. The chair and only other publicly available person connected to the foundation, Ruth Ann Haycock, has no online paper trail.
Dolbow was the founder, chairperson and treasurer of Citizens First, a PAC active in Florida from 2010 to 2016. It dissolved after an audit by the Florida Electioneering Committee related to an unregistered check from Dolbow to a Republican PAC called Conservative Solutions.
Interestingly, Julie Fancelli, a Publix supermarket heiress and former owner of a key Publix supplier, has donated to Conservative Solutions.
Citizens First was heavily funded at its inception by Bill Galvano, the former Florida Senate president, a GOP mainstay with ties to the New College of Florida, where he serves as its chief counsel. Under Governor Ron DeSantis, there has been a move to establish the Sarasota-based New College as a public institution espousing conservative values.
Other Florida GOP politicians are active with efforts to establish and promote New College, including Bridget Ziegler, co-founder of the nonprofit Moms for America, a prominent local voice and wife of former Florida GOP Chairman Christian Ziegler. Bridget and Christian Ziegler have been at the center of a sex scandal that cost Christian Ziegler his party chair position.
Moms for America was almost entirely funded—one donation was for $1.3 million—by Fancelli.
Fancelli is perhaps most famous for her role in funding the January 6 “Stop the Steal” rally. In a Washington Post article exploring her role, family members described her as isolated and easily persuaded to write checks.
Three of Fancelli’s close relatives serve on the Publix board, which distanced itself from her after the January 6 riot. Publix representatives didn’t respond to requests for comment. Dolbow, Fancelli, Galvano and Bridget Ziegler didn’t respond to emails and calls for comment.
Major Meat Processors Accused of Price-Fixing. On April 3, food provider Sodexo USA (SDXAY) filed a complaint (Sodexo v. Agri Stats Inc.) in U.S. District Court for the District of Maryland alleging that several food packing and processing corporations, including Agri Stats, Tyson Foods (TSN) and Clemens Food Group, conspired to illegally fix the prices of pork products sold throughout the U.S. Sodexo claims that the corporations, which comprise more than three-quarters of the U.S. pork market, violated Section 1 of the Sherman Act and Section 7 of the Packers & Stockyards Act.
The complaint alleges that these corporations oversaw a “coordinated reduction of the supply of pork” that included pressuring independent farmers to reduce hog production and threatening to withhold funding from pork suppliers outside the U.S. if they did not “get on board with the supply reduction conspiracy.” As a result, “plaintiffs paid artificially inflated prices for pork…[exceeding] the amount Plaintiffs would have paid if the price for pork had been determined by a competitive market.”
This isn’t the only complaint leveled against Agri Stats. Last September, the DOJ filed a civil suit in Minnesota accusing it of “collecting, integrating, and distributing competitively sensitive information related to price, cost, and output among competing meat processors.” Since then, attorneys general in California, North Carolina and Tennessee have joined the suit.
“The Justice Department is committed to addressing anticompetitive information exchanges that result in consumers paying more for chicken, pork and turkey,” Assistant Attorney General Jonathan Kanter said at the time.
Agri Stats has attempted to both move the DOJ’s case against it to another court, and to have it thrown out of court entirely. The DOJ declined to comment on these attempts.
Sodexo, Tyson, Clemens Food Groups and Agri Stats didn’t respond immediately to requests for comment.
In Their Own Words
In a recent interview with The Capitol Forum, former DOJ AAG Bill Baer discussed Biden’s Executive Order on Competition.
“I cannot from my perspective overstate the significance of that. It’s not just the fact that somebody wrote some words down on paper and an executive order was issued. It is the follow-up that occurred out of the White House ensuring that agencies followed through. The fact that the President commits, I think it’s twice a year, maybe three times a year, to have the committee that enforces that Executive Order come to the White House and sit down with him and talk about what they’re doing. That’s an unprecedented level of White House involvement, presidential involvement, in promoting a pro-competition agenda.”
“We sometimes forget – I do – that so much of our economy is subject to regulation and either antitrust enforcement has a limited role or no role whatsoever. So, to get the Department of Transportation, Surface Transportation Board, to get the Department of Agriculture, Defense Department, Labor, Treasury, really thinking about the competitive impact of their regulations, to get the bank agencies rethinking how they are approaching M&A activity in the financial sector, is hugely important. And that’s an area I think that antitrust enforcement has limited ability to affect. But having the White House say this is a priority makes a huge difference.”
Upcoming Events
April 8, 9:00 a.m. – 12:00 p.m. EDT. FTC Enforcers Summit 2024 for international and state competition enforcement generals in Washington, D.C. to discuss enforcement priorities and strategies for effective coordination. FTC Chair Lina Khan and Deputy Attorney General Jonathan Kanter will preside. Event will include livestreamed discussions and private, in-person breakout discussions. Space limited. Agenda here.
April 9, 9:00 a.m. – 12:30 p.m. EDT. Concurrences Review will host “The 2023 U.S. Merger Guidelines: A Review,” to be held at the Courtyard Marriott, Washington, D.C. Speakers will include Michael Jo of the office of the New York attorney general; vice president and director of competition policy Diana Moss of the Progressive Policy Institute; and associate director for litigation, Bureau of Competition, FTC NY Shaoul Sussman. Registration here.
April 9, 9:00 a.m. EDT. Global Competition Review will host a seminar examining antitrust regulation in the growing digital economy. Enforcers, private practitioners, in house counsel, economists, and academics will discuss these issues, with keynote address from Olivier Guersent, director general for competition, European Commission. Event will be held at Jones Day in Washington, D.C. Schedule here. Register here.
April 9, 12:00 p.m. EDT. Federalist Society Webinar on “NetChoice and Murthy: Speech and Coercion in the Digital Age.” It will feature: Alan Gura, vice president for litigation, Institute for Free Speech; UVA Law Professor Julia D. Mahoney; Matt Stoller, director of research, American Economic Liberties Project. Professor Todd J. Zywicki of Antonin Scalia Law School, George Mason University will moderate. Link here.
April 9, 6:30 p.m. EDT. Concurrences will host its 20th annual Antitrust Writing Awards at the National Press Club. Speakers include Judge Diane Wood, U.S. 7th Circuit Court of Appeals; Olivier Guersent; and Juliane Kokott, advocate general of the Court of Justice of the EU. Space limited to 200 guests.
April 10-12, 8:00 a.m. each day EDT. American Bar Association Antitrust Spring Meeting in Washington, D.C. Agenda includes events with senior antitrust enforcers, including an enforcers roundtable on April 12 at 10:00 a.m. featuring Lina Khan, Jonathan Kanter and EC Commissioner Martha Vestager.
April 10, 9:00 a.m. EDT. House Appropriations Budget Hearing – FY2025 request for the Government Accountability Office (GAO), Government Publishing Office (GPO), and Congressional Budget Office (CBO). Witnesses: GAO Comptroller General Gene Dodaro; GPO Director Hugh Halpern; and CBO Director Dr. Philip Swagel. Livestream here.
April 11, 10:00 a.m. EDT. FY2025 Appropriations Member Day – Subcommittee on Agriculture, Rural Development, Food and Drug Administration, and Related Agencies. Livestream here.
April 11, 1:00 p.m. EDT. House Oversight Committee hearing on oversight of the U.S. Food and Drug Administration. Livestream here.
April 11, 1:00 p.m. EDT. The House Energy and Commerce Subcommittee on Communications & Technology hearing titled “Where Are We Now: Section 230 of the Communications Decency Act of 1996.” Livestream here.
Mark Your Calendar
April 17, 12:00 p.m. – 6:00 p.m. PDT. The Berkeley Forum’s 10th annual M&A and the boardroom conference in downtown San Francisco. Speakers include Olivier Guersent, director-general of the European Commission; Henry Liu, director of the Bureau of Competition, FTC; and former DOJ antitrust division members David Altschuler and Julie Elmer. Event starts at 12:00 p.m. PDT (3:00 p.m. EDT) and will be livestreamed. Register here.
April 18-19, 8:30 a.m., CDT. University of Chicago’s 2024 Antirust and Competition Conference, titled “Antitrust, Regulation, and the Diffusion of Innovation,” to take place at the Gleacher Center in Chicago. Speakers will include Jonathan Kanter, Lina Khan, Matt Stoller, Columbia Law School Professor Tim Wu, and journalist Cory Doctorow. Register to attend in-person here (space limited.) Register to watch the livestream here.
April 18-19, 9:00 a.m. EDT. Semafor’s second annual World Economy Summit in Washington, D.C. co-chaired by former U.S. Commerce Secretary Penny Pritzker and Carlyle Group Co-Founder and Co-Chairman David Rubinstein. Topics will include global finance and growth, AI, and rising debt. Speakers include Senator Michael Bennet (D-Colo.), Representative Steny Hoyer (D-Md.), and acting Labor Secretary Julie Su. Register here.
April 18, 11:00 a.m. – 12:00 p.m. EDT. Morgan Lewis partner Andy Lipman will deliver a talk assessing the state of the Biden Administration’s actions in the telecommunications, media and technology (TMT) sector, and its players and investors. Register here.
April 24, 10:00 a.m. EDT. The FTC will hold an informal hearing on its proposed Rule on Unfair or Deceptive Fees (a.k.a. Junk Fees.) The hearing will be conducted virtually, the Honorable Judge Jay L. Himes presiding. further information here.
April 24-25, 12:00-1:00 p.m. CDT. Professor Maciej Bernatt, University of Warsaw, to host two lunch seminars at the University of Chicago titled “Can Antitrust Save Democracy? Insights from Europe,” investigating the relationship between antitrust law and democracy, with a focus on media markets in EU countries that have experienced democratic backsliding. Event will be livestreamed.
April 25, 8:30 a.m-6:00 p.m. CEST. Concurrences’ Digital Antitrust: How to Regulate? seminar at White & Case in Paris. Topics include data governance in shaping competition law, competition in the cloud sector and merger control in digital markets. Speakers will include representatives from The Hague, UK Competition and Markets Authority, Google, and Spotify.
May 21, 9:15 a.m.-5:30 p.m. EDT. 2nd Annual AELP Anti-Monopoly Summit at the Westin Washington D.C. Downtown Hotel. Speakers will include Lina Khan, Jonathan Kanter and DOJ Principal Deputy Assistant Attorney General Doha Mekki, with others to be announced later. Early-bird tickets on sale through April 21 for $125.
FTC Calendars
The Capitol Forum received February calendars for:
Office of International Affairs Director Maria Coppola
Bureau of Consumer Protection Director Samuel Levine
Office of Congressional Relations Director Jeanne Bumpus
Bureau of Competition Chief of Staff Aylin Skroejer
Bureau of Competition Acting Deputy Director Susan Musser
Bureau of Competition Deputy Director Tara Isa Koslov
Bureau of Competition Director Henry Liu
Bureau of Competition Associate Director Nate Soderstrom
Bureau of Competition Deputy Director Rahul Rao
Office of Policy Planning Director Hannah Garden-Monheit
Highlights
Personnel News
Proskauer Rose hires DOJ alum. Proskauer Rose has announced the hire of Mark Rosman as a partner in its Washington, D.C. antitrust practice. Rosman was at the DOJ Antitrust Division for over 20 years.
Items of Note
Antitrust/M&A Developments
The Hollywood Reporter: Newhouse Family Members Resign from Warner Bros. Discovery Board Amid Antitrust Investigation LINK
New Lines Magazine: Antitrust Action Against Google May Transform the Internet LINK
The New York Times: Deal Talks Between Paramount and Skydance Heat Up LINK
Semafor: Capital One and Discover Start Their Uphill Battle in Washington LINK
Antitrust/M&A Views and Perspectives
Jennifer Vinuya, The Nevada Independent: Store Mergers are Becoming a Necessity to Survive LINK
Avik Roy and Gregg Girvan, The Washington Post: No, Big Pharma’s High Prices Don’t Drive Innovation LINK
Carl Shapiro, ProMarket: Using Economics to Diagnose a Lessening of Competition LINK
AI
Bloomberg: AI Energy Crisis Boosts Interest in Chips That Do It All LINK
CNN: Katy Perry, Billie Eilish, J Balvin and More Lash Out Against ‘Enormous’ AI Threats That ‘Sabotage Creativity’ LINK
Rolling Stone: George Carlin Estate Reaches Settlement Over AI Comedy Special LINK
Wall Street Journal: China Is Targeting U.S. Voters and Taiwan with AI-Powered Disinformation LINK
Social Media/Tech
Axios: The Looming Threat of Opening Apple’s App Ecosystem LINK
Reuters: Trump-and-Dump: Speculators Bet on Truth Social ‘Meme’ Stock LINK
Pharma/Healthcare
Axios: Sen. Markey Offers Bill to Block Private Equity Deals in Health Care LINK
Pharmaceutical Technology: Merz Makes a $185 Million Bid for Bankrupt Acorda LINK
Yahoo! Finance: ARCA Biopharma and Oruka Therapeutics Announce Merger Agreement LINK
Labor
Reuters: US Job Openings Rise Sightly; Labor Market Steadily Easing LINK
U.S. Department of Labor: U.S. Department of Labor Announces $49.2 Million in Available Funding to Support Career Training… LINK
Other
Willamette Week: Live Nation Looking to Build a Venue in Portland, Faces Fresh Federal Antitrust Scrutiny LINK
