Op-Ed: Sen. Scott Brown: Three Biden-era cases Trump’s FTC should reevaluate

The Trump administration is making meaningful strides toward reversing the malaise of the Biden years. Every government agency is facing scrutiny, and the Federal Trade Commission (FTC) should be no exception, especially after its weaponization by the Biden administration against America’s tech innovators.

Despite the turmoil at the FTC, conservatives have a majority, and the timing is ripe for Chair Andrew Ferguson to dig out of the hole left behind by Lina Khan. For four years, Khan issued a blizzard of half-baked lawsuits, which created headlines and burned taxpayer resources.

Now Khan’s unfinished business falls to Ferguson. He must determine the next steps of Khan’s clunkers, while also getting the FTC back to its mission of ensuring free and fair competition.

Here are three FTC cases worthy of reconsideration.

Pepsi Co

On January 17, three days before Biden’s exit, Khan’s FTC launched a poorly conceived fishing expedition against Pepsi, accusing the company of price discrimination. Khan grounded her complaint on the Robinson-Patman Act, a nearly century old Anti-Price Discrimination Act aimed at leveling the playing field between large and small retailers.

As the dissenting commissioners highlighted, not only was the timing of the case dubious, a "cynical attempt to tie the hands" of the incoming administration, in Ferguson’s words, but so were the facts. Simply put, Khan didn’t have the goods to support her claim, but with the clock ticking, she proceeded. Countless litigators and millions of dollars have already been spent on a barely viable case.

Amazon

Amazon has long been Khan’s white whale, as she made her name writing a paper attacking the company for pricing too low, which became a politically untenable argument during Bidenflation.

Nonetheless, Khan plowed ahead with an ill-advised investigation that culminated with a lawsuit in September 2023.

Oddly, the lawsuit barely resembled Khan’s complaints about low prices. Khan argued that Amazon’s practice of only featuring competitive prices somehow led to higher prices — without offering evidence. She maligned the company for its logistics operation and its popular two-day shipping, claiming that the company should include competitors in the process. How Amazon would ensure other companies meet the standards customers have come to expect was left unsaid.

March saw two important tests for the FTC’s case. According to Bloomberg, during its Economics Day hearing, FTC attorney Kenneth Merber was unclear who Amazon’s competitors were, stating “We don’t have a definitive answer but we are working on it.” Talk about a “dog ate my homework” excuse after 500-plus days since filing the suit. And recently a federal judge granted Amazon’s motion to dismiss New Jersey and Pennsylvania’s consumer protection law claims from the suit.

Microsoft Activision

In July 2023, the FTC lost its controversial challenge to the merger between Microsoft and Activision. A federal judge ruled that merger would not hurt competition and the case was not strong enough on its merits to proceed. Rather than drop the litigation in the face of the stinging defeat, the FTC appealed.

In the meantime, most other parties have moved on. The deal was consummated over a year ago. Business units and operations have been integrated. European regulators also signed off on the deal. Yet the FTC appeal of the merger remains pending, and in November 2024 the Commission launched a sweeping antitrust investigation of the company.

This type of government intrusion hamstrings companies. Time, resources, staff spent on compliance: it’s hard to see how any of this - not to mention the off chance that the FTC wins its appeal — helps consumers or fosters a competitive environment.

To be sure, having a levelheaded cop to guard against anticompetitive behavior is a good thing. Having a progressive activist hellbent on meddling with free enterprise in pursuit of an activist agenda is not. Not only is consumer welfare harmed, the likely outcome is higher prices and a business community wary of policies designed to lower prices for fear of government punishment.

A wise reform for the new FTC would be ensuring any desired outcome from future litigation is defined at the outset. Aside from good governance, it would be a valuable input into deciding whether a particular litigation is worth pursuing.

With a limited budget, there is little room for Ferguson to bring new enforcement action, or even manage the day-to-day incoming helming the FTC, until he frees up resources. Doing so will not only move the country toward the president’s promised golden age, but also make America competitive again on the world stage.

A former United States Senator and Ambassador, Scott Brown is chairman of the Competitiveness Coalition