ADventures in Law

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On Jan. 14, Lina Khan chaired what was likely the final open commission meeting of her time as chair of the Federal Trade Commission (FTC) and perhaps the final open commission meeting for the foreseeable future. Khan began the practice of hosting these meetings as part of her push for agency transparency in 2021. The principle behind these meetings is a simple one – &nbsp;to provide an opportunity for the public to not only take a peek behind the proverbial curtain of the FTC but also to allow the public to participate even more in the FTC’s decision-making. A novel idea at the time, and one that has met its fair share of criticism, these meetings continued as a regular part of the Khan administration, as she said, “to ensure that [the FTC’s] work to promote a fair and thriving economy is representative of all Americans.”

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In stark contrast to the first open commission meeting in 2021, this meeting was relatively tame – lacking many political fireworks. This was likely due to two factors. First, and most notably, only three commissioners were present at the meeting – future chair Andrew Ferguson and Commissioner Melissa Holyoak were not in attendance. Second, two of the three items on the agenda had already been approved via unanimous votes.

The meeting began with Khan offering messages of gratitude to the public, the FTC and her fellow commissioners. She also shared a message of hope that these meetings would continue under the next administration. The microphone was then turned over to Rebecca Slaughter and Alvaro Bedoya, her fellow commissioners present at the meeting. Following words of admiration and praise from both for Khan, a moderated public discussion began. Most of the discussion was based on the three topics on the agenda for the meeting – public comments on housing 6(b) orders, a labor exemption policy statement and a second interim report on the practices of pharmacy benefit managers (PBMs). After the public comment portion, the meeting was then steered to the three agenda items.

The first item discussed – a request for public comment on 6(b) orders related to the housing market – was approved via a unanimous vote. In discussions over the housing 6(b) orders, Khan noted the commission’s concern in preventing shortages in affordable housing. The orders focus on a potential study of single-family rental investor holdings and mega-investor strategies to uncover why housing prices have risen significantly for both homeowners and renters since 2008. A short presentation highlighting the potential design/scope of a study on this issue occurred during this portion, with a call for public comment at the end.

The second item discussed was the only item to not receive a unanimous vote – a policy statement clarifying the FTC’s view that the application of the Clayton Act’s labor exemption does not rely on a worker’s formal classification. The statement makes clear the FTC’s current stance that workers’ organizing and collective bargaining activity may be protected from antitrust liability when the subject of the activity is labor or working conditions. The vote on issuing this policy statement was decided by a 3-2 majority, with the commissioners voting along party lines. The FTC’s policy statement can be found <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/p251201laborexemptionpolicystatement.pdf" target="_blank" rel="noreferrer noopener">here</a> and the dissenting statement of Ferguson and Holyoak can be found <a href="https://www.ftc.gov/system/files/ftc_gov/pdf/labor-exemption-policy-statement-ferguson-dissent.pdf" target="_blank" rel="noreferrer noopener">here</a>.

The final item discussed was the second interim report highlighting staff findings from the commission’s 6(b) study on the contracting practices of PBMs. Similar to the request for public comment on the housing 6(b) orders, the report was approved prior to this meeting via a unanimous decision. The second interim report focuses more specifically on specialty drugs and can be found <a href="https://www.ftc.gov/news-events/news/press-releases/2025/01/ftc-releases-second-interim-staff-report-prescription-drug-middlemen" target="_blank" rel="noreferrer noopener">here</a>.

After the final item, Khan, after offering some final notes of gratitude, adjourned the meeting. Throughout her tenure there have been steady critiques from the Republican commissioners on the efficacy and necessity of these meetings. Thus, although we can’t say for sure, the Jan. 14 open commission meeting was likely, at least for the foreseeable future, the final open-to-the-public commission meeting. The meeting is available for viewing <a href="https://www.ftc.gov/news-events/events/2025/01/open-commission-meeting-january-14-2025" target="_blank" rel="noreferrer noopener">here</a>.

Jan. 14 – Likely the FTC’s Final Open Commission Meeting