Federal Trade Commissioner Christine Wilson made a splash this week in announcing in a Wall Street Journal opinion piece she was leaving the agency out of frustration with its chair, Lina Khan, who she accused of breaking precedent and running roughshod over the rule of law.
“My fundamental concern with her leadership of the commission pertains to her willful disregard of congressionally imposed limits on agency jurisdiction, her defiance of legal precedent, and her abuse of power to achieve desired outcomes,” Wilson said.
Wilson, appointed in 2018, was a frequent critic of FTC decisions in the last two years and often the lone dissenter, most recently blasting the agency’s sweeping proposal to ban non-compete agreements.
In her dissent, she said the proposal breaks with precedent, doesn’t have sufficient data to support the view that the agreements are bad for competition and is vulnerable to legal challenge because it tries to stretch the reach of Section 5 of the FTC Act, which covers unfair competition.
“I am dubious that three unelected technocrats have somehow hit upon the right way to think about non-competes, and that all the preceding legal minds to examine this issue have gotten it wrong,” she said.
Wilson said Khan has consolidated power within the office of the chair to push through an agenda that tries to find anti-competitive behavior where it wasn’t seen before. She cited a policy statement the FTC released last November, to which she dissented, that says the agency will look at company actions that appear to be problematic even if they don’t technically violate antitrust law.
That statement, she said, “resembles the work of an academic or a think tank fellow who dreams of banning unpopular conduct and remaking the economy.”
Wilson also accused Khan of conflicts of interest, most recently by her refusal to recuse herself when the agency was looking at Meta’s proposed merger with fitness-app maker Within. That deal later went to court, which ruled against the FTC and approved it.
Khan should have recused herself because as a congressional staffer prior to her appointment to the FTC, she had said Meta shouldn't be allowed to make any more acquisitions.
“The law is clear,” said Wilson in her WSJ opinion piece. She cited three appellate court cases on FTC recusals and, quoting from one, said “an FTC chairman couldn’t adjudicate a case after making statements suggesting he prejudged its outcome.”
Critics have taken issue with at least one vote Wilson made on conflict grounds, when she approved Bristol-Myers Squibb’s $74 billion acquisition of Celgene in 2020.
The FTC looked at the deal against the backdrop of escalating drug prices while acknowledging it was limited in what it could do within the context of antitrust law to combat prices.
“There is ample evidence that prices of branded pharmaceuticals have increased much faster … than prices in the rest of the economy,” Wilson said in her statement on the merger. “Unfortunately, many of the causes of higher drug prices … fall outside the jurisdiction and legal authority of the Federal Trade Commission.”
In allowing the deal to go through, the FTC added the condition that Celgene divest its psoriasis medicine, Otezla, to a competitor, because Bristol-Myers Squibb at the time was developing its own medicine for that.
“This $13 billion divestiture is the largest in the history of U.S. merger enforcement,” Wilson said in her statement.
Wilson, who represented Bristol-Myers Squibb on antitrust matters when she was a partner at Kirkland & Ellis prior to joining the FTC, voted in favor of the deal.
In talking about the FTC’s “big revolving door” among its commissioners and the companies they work with or otherwise have an interest in when they’re in the private sector, Public Citizen in its 2019 report cited Wilson’s relationship with Bristol-Myers Squibb among other pharmaceutical companies. ProPublica also listed her work for Bristol-Myers Squibb.
“Clients from her time in private practice include pharmaceutical companies Boehringer Ingelheim, Bristol-Myers Squibb and Teva,” the report said.
In a statement on her resignation, Khan and the other commissioners thanked her for her work.
"While we often disagreed with Commissioner Wilson, we respect her devotion to her beliefs and are grateful for her public service,” they said.
Neither Wilson nor the agency responded to a request for comment as of publication time.