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Evidence Substantiation Burden May Soon Shift to FTC

Margaret E. Krawiec et al., Law360, January 17, 2017

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The Federal Trade Commission is headed by five commissioners, who are nominated by the president and confirmed by the Senate, with the president choosing one commissioner to serve as chairperson. Of the five commissioners, only three can be of the same political party. Commissioners serve a seven-year term. Currently, only three of the commissioner spots are filled, by Chairwoman Edith Ramirez (D), Maureen K. Ohlhausen (R) and Terrell McSweeny (D). Ramirez’s term expired on Sept. 25, 2015, and she has continued to serve under an expired term. Chairman Ramirez announced on Jan. 13, 2017, that she intends to step down in the near future, but no later than Feb, 10, 2017. Accordingly, when President-elect Donald Trump assumes office, he will be positioned to immediately nominate three new commissioners — two to fill the two open seats and one to fill the expired seat currently being held by Ramirez. In this regard, he also has the power to designate either a new or existing commissioner as chairperson. Current speculation is that Trump will select Ohlhausen as the next chairwoman, at least in an interim capacity. Additionally, McSweeney’s term expires Sept. 25, 2017, positioning Trump to nominate a fourth person as a commissioner as early as the second half of this year.

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