A Conversation with FTC Chair Joseph Simons (L’83)
October 30, 2018
Joseph Simons (L’83) continued Georgetown Law’s proud history with the Federal Trade Commission when he was sworn in as FTC chair on May 1, 2018.
Simons follows in the tradition of his mentor, the late Georgetown Law Dean Robert Pitofsky, who served as chair from 1995 to 2001 and who died on October 6, 2018.
As Georgetown Law hosts a second set of FTC hearings on November 1, we asked Simons his thoughts on the future direction of the agency, Georgetown Law memories, career advice and more. The interview follows.
Congratulations on your new role as Federal Trade Commission chairman. What are your thoughts on the future direction of the agency? What are some of the challenges?
This is my third time serving at the FTC, and I’m thrilled to be back. The FTC is a small but mighty enforcement agency with an important dual mission. On the one hand, we ensure that competition determines the range of products and services available in the marketplace. On the other hand, we ensure that consumers have access to truthful information to inform their purchasing choices.
Under my leadership, we will continue to pursue vigorous enforcement on behalf of American consumers. We’re committed to understanding how technological developments and globalization can, and should, impact our work. We will carefully consider whether we are using the right analytical frameworks to evaluate various business practices in today’s economy — including with respect to consumer privacy and data security, which are key issues within our jurisdiction and expertise. And we are looking closely at our approach to remedies, particularly in consumer protection cases. We want to make sure we’re using our remedial authorities as effectively as possible to not only deter unlawful conduct, but also provide relief to victims.
We are always up against resource constraints, and I don’t expect that challenge to subside. In addition, fraudsters constantly find new and creative ways to deceive consumers and separate them from their money, which means our approach to case development must continually evolve. I’m particularly frustrated that the FTC’s lack of jurisdiction over common carriers hampers our ability to fight the scourge of illegal robocalls, although I am hopeful we might get that authority during my term as chairman.
Georgetown Law has had significant connections to the FTC — former Dean Robert Pitofsky was chairman, and Christine A. Varney (L’86) and Terrell McSweeny (L’04) have served as commissioners. Current professors Howard Shelanski, David Vladeck and Steven Salop have also served in significant roles. What does it mean to continue the tradition?
I’m proud to join a long list of FTC’ers with Georgetown Law connections. In many ways, I’m a product of my upbringing. I was initially trained by four world-class antitrusters on the Georgetown Law faculty: Bob Pitosfky, Steve Salop, Tom Krattenmaker and Warren Schwartz. It was an incredible pool of antitrust talent, all in one place. I often mention that I was able to take an impressive 15 credits of antitrust courses during law school, something that may not be possible anywhere else. In addition, these four mentors represented a wide range of the political spectrum, which meant my education covered a variety of antitrust viewpoints.
Importantly, all four had worked at the FTC at one time or another and spoke highly of their government experience. In hindsight, it seems inevitable that I, too, would end up at the FTC. But when I was a law student, I never would have dreamed I would someday have the opportunity to serve as FTC chairman.
Before I finish the topic of my mentors, I want to add that the recent passing of Robert Pitofsky represents an enormous loss for the antitrust community. He was one of the true giants of his field. Bob was a brilliant scholar, a highly respected dean of Georgetown University Law Center, one of the very best chairmen the FTC has ever seen, and a model of humanity, integrity and character.
You earned an A.B. in Economics and History at Cornell University. Why did you decide to go to law school and why did you choose Georgetown Law?
I first became interested in antitrust as an undergraduate. As an economics major, I took an industrial organization class taught by a former economist at the Department of Justice Antitrust Division, with a guest appearance by a former chief economist of the Division. I chose Georgetown for law school because of the school’s reputation, its proximity to the FTC and Department of Justice, and the quality of its faculty (especially its antitrust expertise).
What was your path through law school — clinics, externships, summer jobs, journals? What inspired you to pursue a career in government service and/or antitrust?
As I mentioned, I was fortunate that the Law Center had four highly regarded antitrust professors while I was there, and offered such a large number of antitrust-related courses. I had at least one course with Professors, Pitofsky, Krattenmaker, Salop and Schwartz. I also did independent research with Professor Salop that resulted in us co-authoring a “how to” guide for merger analysis under the then-brand-new 1982 DOJ Merger Guidelines. This was the perfect complement to a brilliant course on the Guidelines — taught by Professors Pitofsky and Krattenmaker — which was my first real exposure to merger analysis.
Professor Krattenmaker brought me along as a part-time law clerk when he agreed to co-author a book on antitrust and mergers, working with some attorneys from a highly regarded law firm. That decision turned out to be pivotal for both of us. One day during my clerkship, someone at the firm gave a presentation about a new matter and asked for suggestions on how to handle it. I recognized the applicability of a novel legal theory that Professor Salop was then developing, and I encouraged the firm to hire Professors Salop and Krattenmaker as consultants, which it did. Ultimately, their collaboration on that matter led them to publish a seminal and highly influential Yale Law Review article on the now-famous Raising Rivals’ Costs approach to analysis of vertical restraints and monopolization. And ever since, the RRC framework they articulated has continued to shape my thinking about certain kinds of anticompetitive conduct.
As most antitrust practitioners will tell you, government service is an invaluable way to deepen your understanding of the relevant law and economics, and also to hone your skills as a counselor and advocate. Given that my mentors had spent time at the FTC and spoke so highly of it, I jumped at the chance to serve at the FTC early in my career when I worked as an assistant to the director of the Bureau of Competition. Years later, I returned as director of the Bureau of Competition.
This time around, I’m still marveling at how lucky I am to have been given the opportunity to serve as chairman. The FTC is a fantastic agency with top-notch staff, a culture of collegiality and a spirit of bipartisanship and consensus-building. Not surprisingly, we’re also known for having great morale. Every day, I see how hard our talented FTC staff work to protect consumers and promote competition. They are a great example of government at its best.
In addition to two previous roles at the FTC, you were a partner and co-chair of the Antitrust Group at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison. Any advice to law students who might be weighing careers in a law firm versus government service?
Each has its own pros and cons. For me, following Professor Pitofsky’s example, going back and forth between the two, allows one to get some of the best of both worlds — and enables one to be more effective in both realms.
To current law students, any thoughts on the future of antitrust or FTC work specifically? How does a student build a career in this area?
This is an amazing time to be an antitrust or consumer protection lawyer. I can speak primarily to the antitrust side of things, since that’s been the focus of my career. Many antitrust lawyers have an economics background (as do I), but it is by no means required. Intellectual curiosity and rigor are probably more important traits to develop. When you practice antitrust, you are constantly learning about new industries and new business models.
Most of the best antitrust lawyers have spent at least some time working for the government, either the FTC or the DOJ Antitrust Division. Government service clearly has a strong public interest focus, which is motivating in and of itself. But doing antitrust at the FTC or DOJ also guarantees the best possible training: exposure to a steady stream of challenging cases, tons of hands-on experience, and terrific mentoring. Although I’ve never worked in state government, experience tells me that some state attorneys general offices can also be a good place to get some antitrust training.
The FTC has launched a series of Hearings on Competition and Consumer Protection in the 21st Century in a number of locations, including two days at Georgetown Law (September 13 and November 1). Talk about the hearings.
This series of hearings will be one of my signature initiatives as chairman. Our goal is to consider whether broad-based changes in the economy, evolving business practices, new technologies and international developments warrant adjustments to competition and consumer protection law, enforcement priorities, and policy. We’re approaching this effort with an open mind, and I expect to use what we learn to more effectively carry out our competition and consumer protection missions.
This initiative is modeled on a similar effort in 1995 by then-FTC Chairman Pitofsky. His hearings led to a well-received two-volume staff report, Anticipating the 21st Century, which presented a comprehensive set of analyses and recommendations on competition and consumer protection policy. I’ve always viewed the Pitofsky hearings and subsequent report as the first step in establishing the FTC as a global thought leader in competition research and development, and I think many of my colleagues and contemporaries feel the same way. Similarly, our new hearings initiative will devote significant resources to refresh — and, if warranted, renew — our thinking on a wide range of cutting-edge competition and consumer protection issues. I want to make sure we’re getting things right, to ensure we are using our resources as effectively as possible on behalf of American consumers.
The full list of topics and panels is available on our workshop website, which is constantly being updated as we finalize the agenda for each day of hearings. I was so pleased with our opening day on September 13 at Georgetown, where I was delighted not only to present formal opening remarks, but also to share a few informal words at a small luncheon in honor of Professor Pitofsky, attended by his family and closest colleagues. I’m grateful to everyone at Georgetown who worked seamlessly with FTC staff to make the day a success (with a special shout-out to Georgetown Law alumna Monique Fortenberry (L’95), the FTC’s Deputy Executive Director, who was deeply involved in logistics planning).
Any concluding thoughts?
Just to reiterate that my experience at Georgetown was invaluable in preparing for a wonderful career. I am very fortunate to have started there.