Q: You led the country’s largest consumer protection agency at the Federal Trade Commission (“FTC”). How do you prepare yourself for such an important role?
So, I read lots of books, talked with lots of people, and came to the job with what I would call an “affirmative agenda.” I thought it was very important to have something new and positive that the staff could get behind. And we did have some big ideas—like small business finance, liability of third parties, or digital advertising—that came to fruition.
But I also learned that life is what happens when you’re making other plans. So, we had some very active individual Commissioners, which is an unusual situation, and they had their own ideas about what the Bureau of Consumer Protection should be doing (which is of course their prerogative—after all, they do run the agency, and I answered to them). In addition, we had other unpredictable events, like an unprecedented month-long government shutdown and a global pandemic. With respect to the pandemic, we very quickly retooled and became “all COVID, all the time,” which made sense. We took action against COVID scams, online PPP sellers who never delivered, robocallers, MLMs, video conferencing providers, and others taking advantage of the pandemic.
Q: What was most rewarding about your experience as Director? Most challenging?
The most rewarding aspect of being Bureau Director was leading an agency of 425 people in eight divisions and eight regional offices across the country. The Bureau Director has a great big corner office in the FTC headquarters building, and there’s a big conference table in that office, and, before the pandemic, that conference table was full all day, every day with meetings. FTC staff—senior and otherwise—discussing important investigations, cases, rules, policymaking initiatives, and legislation. And the thing that I remember most fondly was the amount of laughter around that table. We had so much fun. It was a really wonderful group of people to have had the opportunity to lead for even a brief period of time.
Q: What role does the FTC play in a constantly-changing economy?
That’s a good question. I used to know the answer, or at least I thought I knew the answer. I always focused, whether in private practice or in the government, on the consumer. The lodestar was always, “what’s the best result for consumers?” People took a broad view of that question, including ensuring that consumers had high-quality, economically priced goods and services that met their needs, interests and wants. New leadership of the FTC, however, seems to be hunting bigger game. They are talking about “dominant intermediaries” and “extractive business models” and has said that the job of the FTC is to “shape the distribution of power and opportunity across our economy.” These of course are extremely important questions, and the answers that the new FTC comes up with may have a big impact at the end of the day. But, it is a departure from the past, and it takes some getting used to.
Q: Do you have any thoughts about the direction the FTC has taken since your departure?
There is the rhetoric, which I mentioned above, and then there is the reality. The rhetoric is that the last 40 years of consumer protection and antitrust enforcement at the FTC—and the focus on consumer welfare—have been a mistake. The reality, however, is that any changes—at least on the consumer protection side—are fairly incremental. The enforcement actions look pretty much like the enforcement actions when I was there. One thing that is new is that there is a decent amount of rulemaking. Some people would tell you that these rules are going after “low hanging fruit” such as false earnings claims and false Made in USA claims. I don’t know about that. Rules can sometimes be stretched to cover circumstances that were not initially contemplated. For example, the Telemarketing Sales Rule has become something of a catch-all weapon against deception and fraud, because it has a powerful civil penalty remedy. The applicable standards of these rules—such as, “don’t lie about how much you can earn”—seem basic, but misconduct is frequently in the eye the beholder. When the FTC can collect $40,000+ in civil penalties per day, per violation, I think that we will find that the devil can be in the details.
Q: How does leadership in government compare to leadership in private practice?
So, I have had a bit of leadership experience in different contexts—in law firms, in the government, and also as the Chair of CFSC—and I think in all three instances one of my primary jobs was to create opportunities for others. I would also say that leadership—if you’re doing it right—is fairly thankless. You need to allow others to take credit for successes, but you need to accept responsibility for failures yourself. And, through it all, you have to be upbeat and supportive, so that people will continue to contribute to the team. I will say that in all three instances, leadership was made a lot easier by terrific colleagues, almost all of whom were enthusiastic contributors to the greater good. That made it fun.
Q: Do you have any advice for young attorneys starting out in consumer financial services?
Try not to say “no” to new opportunities. I realize that that may be unrealistic for many of us, particularly with pressing family and personal obligations. I just think that when someone wants to entrust you with a new challenge, you should try to make the most of it. That has happened a couple of times for me—early in my career when I was asked to take up leadership of the FCRA Program at the FTC, in the middle of my career when Nikki Munro asked me to succeed her as Chair of CFSC, and most recently when I was asked to return to the FTC as Director of the Bureau of Consumer Protection. None of these things made sense on paper. They all involved a ton of work and a decent amount of pain, for little or no remuneration or glory, but these experiences have defined my career. And, I am hopeful that there may be some additional surprises for me around the corner.
Q: What job would you have done if you hadn’t become a consumer financial services attorney?
Some other kind of lawyer. I think being a lawyer is best job in the world. People come to you with their most important and challenging problems, and ask you to help solve them. Private practice is an honor and privilege.
Q: What is the best piece of advice you’ve ever received?
My dad said, “don’t confuse brains with a bull market.” Basically, don’t be too impressed with yourself. I think that all of us in the consumer financial services business are fairly busy right now—it seems like a bull market—and I am constantly reminded of my father’s admonition that maybe we’re not so smart after all.
