Fireside Chat with FTC Commissioner Melissa Holyoak

Nathan Kaczmarek: Good afternoon. At the outset, I'd like to congratulate all of you for beating the odds and braving the heat and the NATO summit traffic to be here with us today at the Mayflower. Welcome as well to our virtual audience tuning in via the live stream. I'm Nathan Kaczmarek, Vice President and Director of Practice Groups for the Federal Society. Today's luncheon is sponsored by the Thorough Society's Corporations Securities and Antitrust Practice Group Executive committee. I want to thank Commissioner Holyoak for her valuable time and her graciousness in joining us today. Both she and her staff have been so understanding and kind to us in rescheduling this event and we are most grateful. The society remains committed to the best debate and discussion of the foremost legal and policy issues of our time. This Fireside Chat continues a years long practice group commitment to hosting thought-provoking officials, and proudly featuring a wide range of views.

Before I hand things off, one upcoming programming note. Later this month on July 25th, we will be back here to host our annual Supreme Court Roundup Luncheon with former Solicitor General of the United States, Paul Clement. Be sure to register on our website fed so.org before it sells out today. We are excited for this great conversation between FTC Commissioner, Melissa Holyoak and Svetlana Gans. Both of their bios are provided in full on our website. Let me quickly introduce Svetlana. Svetlana is a Partner in the Washington DC office of Gibson Dunn. Her work is focused on complex consumer protection, privacy, and competition related regulatory proceedings at all levels of government. Prior to joining Gibson Dunn, she was Vice President and Associate General Counsel at NCTA. Prior to that, she served in several roles at the FTC, including as Chief of Staff to acting FTC Chairman Maureen Ohlhausen. Her law degree is from the University of Denver College and her undergraduate is from Boston University.

But beyond her many titles, accolades and accomplishments, truly her greatest achievement must be winning the first ever Federalist Society Practice Group Volunteer of the Year award in 2023. As the co-chair of our Corporation Securities and Antitrust Practice Group Executive Committee, the Society is very fortunate to have her leading much of our antitrust programming. We are thankful to her for her tireless efforts on our behalf. One note for our audience that in lieu of Q&A at the end of our session, the commissioner has graciously indicated that she would like to stay and meet with our audience afterward and answer any questions you might have personally after the program. With that, please join me in welcoming our speakers today.

Svetlana Gans: Thank you so much, Nate, for that warm introduction. Really appreciate it. Thank you to your staff, including Edie for all her help with today's event and thank you to Commissioner Holyoak and her staff for all of their time and energy with this session. We really appreciate it. So we have a lot of questions for the commissioner, but let me start with my own disclaimer. The views I state here today may not be my own views or any views of Gibson Dunn or any of its clients. So I'm here in my personal capacity as a patriot and Federalist Society chair.

Hon. Melissa Holyoak: I should add that disclaimer for myself, that my views are of my own and not of the commission nor any other commissioner.

Svetlana Gans: All right, so with those out of the way, we have gathered here for this fireside chat on the most hottest day of the year in DC just to keep with the fireside theme. And we also rescheduled this program because we knew that Commissioner Holyoak would have a lot more dissents for us to discuss today than we would've discussed a few months ago. So we are very excited about diving into all of those areas on today's panel. So first let me provide the brief introduction of Commissioner Holyoak. As Nate said, her full bio is on the website. Melissa Holyoke was sworn in on March 25th, 2024 as a commissioner of the Federal Trade Commission. She brings extensive experience to the FTC. Most recently she served as Utah Solicitor General where she oversaw appeals constitutional defense and special litigation as well as antitrust and data privacy divisions, including leading several multi-state matters. Previously, she served as president and general counsel of Hamilton Lincoln Law Institute among other public interest firms. Commissioner Holyoak has argued in the fifth, seventh, eighth, ninth, 10th, and DC circuits -  amazing - and she's a former prosecutor and attorney in private practice. So I know all that litigation comes in handy at the FTC. So let's dive in and thank you again for being here. I really appreciate your time.

Hon. Melissa Holyoak: Thank you. Thank you. I'm so excited to be here with you and it's so fun to be with Svetlana. She's wonderful. And I do want to say before we start, thank you to Nate and to Dean and others at the Federalist Society and Alida. So we're excited to be here and as two women from the West, this humidity, I mean it's killing us.

Svetlana Gans: Exactly. So I wanted to start off the bat with a topic I know is very near and dear to your heart, which is the FTCs non-compete rule. As folks know on April 23rd, 2024, the FTC voted three to two along party lines to ban non-compete clauses in employment contracts under the FTCs non-compete rule. Existing non-compete for the vast majority of workers will no longer be enforceable after the rule's effective date and would impact some 30 million workers. What I found most interesting about your statement is that it started off with the constitution stating that article one of the Constitution vests all legislative powers in Congress. And by doing so, the constitution sought to ensure not only that all power would be derived from the people, but also that those entrusted with it should be kept independence on the people. You spoke a lot about accountability, about checks and balances and turning to the substance of the inquiry, you stated that the FTC does not have UMC rulemaking authority. Just recently, the Northern District of Texas agreed that the non-compete rule likely exceeds the scope of FTCs authority. Indeed, the court relied on some of the same points you made in your dissent, including the fact that the provision lacks a penalty provision in the act. The court also went on further to hold that the rule is likely arbitrary and capricious for imposing such a sweeping prohibition instead of targeting specific harmful. So let me just ask you, what's your reaction to the court's decision and where do you think the court will go on the merits.

Hon. Melissa Holyoak: Great question. My reaction is when a court follows your dissent, you're always a little happy (laughs). No, but my dissent, I should start first by saying I don't think that every non-compete clause is pro-competitive in every provision. And I think we should be. That's one of the reasons problems with this broad rule is it just sweeps so broadly and makes those decisions. I think one of the bigger problems is we spent so many resources, scarce resources dedicated to a broad rule which will likely be invalidated when those same resources could have been used to go after the anti-competitive non-compete clauses and investigate and enforce those. And when we use those resources for something that's going to be so fruitless, it really poorly serves the American people. So getting back to my descent, so my descent, like you said, we need to be thinking, we need to really have some circumspection on what we're doing when we're putting out rules. And first and foremost, the question is where does that authority come from? So look to the statutes and see where that comes from.

So the FTC Act, we have section five and section six. And so the non-compete rule argues that those work together to give us authority. So what are those sections? Section five talks about our authority relating to unfair methods of competition, but it really is setting forth this comprehensive adjudication framework like how are you going to adjudicate these case by case decisions? Section six by contrast lists our investigatory authorities and right in the middle of that is just a very small phrase that says, and we can classify corporations and or make rules to further the purposes and provisions of the FTC act. And so that's where the non-compete takes its hook right there. And it says, look for purposes and provisions of the FTC Act. That's the whole act. You can make rules for everything, but I think that's the wrong question. I mean the right question is, well, okay, but what kind of rules are you talking about legislative rulemaking?

Are you talking about procedural rules, housekeeping rules? What kinds of rules are you talking about? And what the Supreme Court said is that if you are going to argue that this is legislative rulemaking, you need to have a pretty good indication that Congress meant legislative rulemaking. And what do you look to? You look to the text, you look to see, is there any sort of indication that they meant legislative rulemaking? Did they provide for notice and comment? Did they provide for a sanction? This was an interesting portion that the district court picked up on. So Professor Thomas Merrill. he talked about this. He looked at historically what Congress has done and if there's a sanction that is provided with a rulemaking power that is a good indication that it's substantive and legislative rulemaking, the section six provides none of that. There's nothing there that suggests any of that.

And more importantly, if you go back to section five, there is nothing that talks about rules and nor if you can adjudicate the violation of a rule. So if you would assume that there's going to be rules that you'd assume that you'd have some sort of adjudication process for a violation of those, it's absent from both of those provisions. And so looking at how the Supreme Court looked, they have told us time and again, you have to look at the text, you have to look at the structure and taking those together. There really is just a lack of legislative rulemaking power for unfair methods of competition.

Svetlana Gans: So can you discuss the implications of this finding on potential future UMC rulemaking outside of the non-compete context?

Hon. Melissa Holyoak: Yes, absolutely. And I should mention that. So this was in the district court's opinion was in the context of a preliminary injunction. And so preliminary injunction, the threshold is likelihood of success in the merits. So she held that it was likely that they would succeed based on this lack of authority. So that's where, I mean from what I understand, she has also told the parties that she will rule on the merits by the end of August, which will be prior to the effective date. So I think we'll see where that goes in terms of where the court goes there. But so where does the agency go from here? 

I think we need to think really strong and hard about whether we want to continue down that path. Understanding what that court does might be prudent to see what the appellate courts do with that as well.

Before we, again take on a large broad rulemaking authority. I do want to mention also you mentioned the arbitrary and capriciousness. So the district court here also found that the rule was arbitrary and capricious because it looked to some of economic studies based on what happens with non-competes. But they were very narrow. It was a very narrow context. So what the district court said, and as I pointed out my dissent as well as Commissioner Ferguson who did a good job in pointing out this problem is that the non-compete rule looks at a couple of different empirical studies, but in a very specific context like in Hawaii where there was a ban on technology workers or something like that. And then they try to extrapolate that to a total ban and that just is not going to work. And the district court picked up on that and also found it arbitrary and capricious for that basis.

Svetlana Gans: The other thing you noted in your dissent is that the non-compete rule was following a binge of rulemaking by the FTC in 1970s. Congress took a number of actions to rebuff the FTCs attempt at overreach. Do you think that history is repeating itself at this point? How should the FTC approach rulemakings where it does have authority, for example in the UD space?

Hon. Melissa Holyoak: That's a great question and I just recently gave a speech where I talked about Howard Beals, the former director of the Bureau of Consumer Protection. He does a good job on mapping out this history and talking about this really this binge on rulemaking in the sixties and seventies. And what happened was there was quite a backlash from both the market and from Congress. I mean it got so bad that even the Washington Post called the FTC, the National Nanny, and from that we lost, or I should say the commission lost some of its authority. There were statutes restricting its ability to make rules and also there was quite a bit of restrictions on its budget as well. So do we want history to repeat itself? Absolutely not. I don't don't want to lose the trust of Congress and it's a big concern. So right now Congress is considering many things with respect to the FTC, including comprehensive privacy legislation and whether we would have authority over that. They're considering restoring our ability to get economic redress for consumers after the AMG decision. So we want to make sure that we maintain or rebuild our trust with Congress so they know that we will, whatever authority they give us, we'll make sure that we follow the statute strictly and enforce what they intend us to enforce.

Svetlana Gans: And I know that Congress is also working on the FTC budget and so that's another hook that they have in terms of accountability. I wanted to keep going with antitrust for a bit before turning to consumer protection. I'm interested in your antitrust priorities generally, but wanted it start with the Exxon descent. It's another example of an FTC action where you have argued it exceeds FTC authority by the order which Exxon, the consent order prevented Exxon founder and former Pioneer CEO Scott Sheffield from gaining a seat on Exxon's board of directors. And you said in your dissent that the commission should not leverage its merger enforcement authority or any other authority the way that it does today. Can you elaborate on what you meant?

Hon. Melissa Holyoak: There? Yes, certainly. So this came to the commission as under a merger that was proposed between Exxon and Pioneer. And so we were looking at whether the merger itself would substantially lessen competition. And what we found was no, it did not. It would not. And so instead the consent order, it argued that elevating Mr. Sheffield to the board would present a problem. The problem is the complaint really failed to explain why elevating Mr. Sheffield to the board was a section seven problem, why it didn't affect the transaction. And we knew the transaction would not substantially lessen competition. And it was really troubling because they used that merger enforcement as leverage to get Exxon to agree to this, to not allow Mr. Sheffield to be elevated to the board. This is really just a perversion of our enforcement authority. This cannot happen. Agencies cannot be doing this, cannot be using separate authorities to extract something else out that they could never have gotten in court.

Svetlana Gans: So kind of stepping back on antitrust generally, there's been a lot of debate on the future of antitrust, the future of consumer welfare. Many including Chair Khan and the president have stated that the last 40 years of antitrust have been a failure. There's a lot of swirl on this topic right now. So where do you lie on the spectrum in terms of where things stand there?

Hon. Melissa Holyoak: And that was, I think even in President Biden's executive order that the last 40 years have been an absolute failure. I completely disagree with that characterization. I think it's obliged by the facts and I think we need to look at the facts and what's actually happening. Tim Muris and Howard have written on this, on what the agency actually did for the last 40 years, and that's a great, I think, explanation of what was actually happening at the agency. And I think there are folks in here that were at the agency that would also probably disagree with the fact that nothing was being done at the agency for the last 40 years.

But I also think it's important to understand, as you said, we're talking about antitrust enforcement and looking at it, there's always ways to improve and nothing's perfect. So look at it and let's make some improvements and I think we can, it's good to remember to focus on what we've been learning from the Supreme Court. What are the goals of antitrust? It's to promote the interests of consumers, to promote the competition process, to protect that. I think there's been a lot of discussion of relying solely on these really old cases 50, 60 years ago. And the response I always hear is, well, they're not overturned. And I guess my response back is, well, neither are the cases from the last 50 years. So I mean, as a litigator, if I am in court, I'm not usually pulling out the oldest cases. I'm pulling out the most recent ones that are the most applicable that apply to what's happening in our current economy and our modern economy. Learning from the drawing from the principles of older cases, but have been applied and that are going to be most applicable and going to be the most effective in court.

Svetlana Gans: Sticking with that line of thought, do you think there's been a departure away from consumer welfare and focus on consumer harm? Do you see that shift from your perch or what do you think on that issue?

Hon. Melissa Holyoak: Yes, antitrust is not a panacea. It's not going to be the solution for all of the world's problems and all of the issues. I think it needs to be what it is, which is protecting consumers. And it doesn't mean that that just means price. I think that is a lot of response that we get is okay, you only care about price. That's not correct at all. I think there's a lot of things that we care about when we're looking about consumers, innovation, quality, so many other things. And we can look at those things as well when we're trying to assess consumer harm.

Svetlana Gans: One other recent dissent that you issued this week actually is in response to FTC staff issuance of a report on PBM practices, you dissented on multiple grounds stating that the study lacked empirical rigor and was not objective. You also stated that the study was not comprehensive because it did not analyze all market player dynamics, including the role of payers and the impacts on consumer pricing. Your dissent then differentiated the staff interim report that was issued this week with the FTC's 2005 PBM study that focused on mail order pharmacies and noted that the 2024 report did not present any empirical evidence to rebut the 2005 report findings. Can you elaborate on your thoughts on that report?

Hon. Melissa Holyoak: Yes, absolutely. I think that the 2005 report's a great example of how to do a 6-B study to look at the data for it to be objective, empirical, economically sound. And this report just isn't. It gives a very high level overview of the pharmaceutical industry, but really focusing on PBMs and concentration.

Concentration can give us a glimpse of what's happening, but it's just not the full story. And we need to really analyze the data and understand what is happening here. I think one of the other interesting things that has been relied on significantly are these two drug studies. And you have to remember that we have data for six and a half billion drugs dispensed. So we have lots of data, we just have no idea. 

This is just a very small fraction. We have no clue on what it represents and what it shows us about what is actually happening in the market and whether it's representative or not. I mean, the other thing that's interesting about these two drug studies is it's highly focused on reimbursements to PBM affiliated pharmacies, but it does not talk at all about what's happening to consumers and what that translates to consumers. And we just probably won't be able to know unless we actually look into the data. And so I've testified in front of Congress yesterday, I'm fully committed and think the FTC should remain on the course of looking at this and providing a fulsome comprehensive PBM study that looks at all of this.

Svetlana Gans: So before we depart from antitrust, I just had a very quick question just between you and me, we don't have to tell anyone. The question is when will the new HSR rule come out?

Just kidding. That was a joke. Just saying. Okay, had to liven it up in the middle. Okay, so let's turn to privacy and consumer protection. You had an outstanding dissent, in my opinion, personal opinion on the health breach notification rule where you stated the rule exceeded the commission's statutory authority, put companies at risk of perpetual non-compliance and open the commission to legal challenge that could undermine its institutional integrity. You also noted that given the breadth of the rule, a large swath of apps and app developers would be swept in because virtually every app has a technical capability to draw information from multiple sources. First, I wanted to ask you about that dissent and also ask you about administ ability of rules if that's an important consideration as the FTC engages in these economy wide rulemakings.

Hon. Melissa Holyoak: Great question. And just to give a little bit of background, for those who don't live in the health ification world, so this rule was designed to provide additional requirements for personal health record vendors. So you're a vendor, you have been given personal health records and what does that mean some health provider has been giving you or creating and providing you a personally identifiable health information of some sort. And so what the rule tried to do was define what is a healthcare provider who's providing these records, who's creating them and providing them. The statute refers back to the Social Security administration statute statute, which defines healthcare provider to include three categories, both with statutory definitions, the first of which applies to hospitals, the second to physicians, other services providers. And the third is sort of a catchall. What the agency did was take a rule and try to provide a definition to that third category that was extremely broad.

And I think one example that I gave in my descent is what it would mean is that an app provider, for example, for a convenience store, so you are a convenience store owner and you have an app that tracks loyalty purchases for your customers and you also happen to sell band-aids and Tylenol. You are now a personal health record vendor under the rule. It is that broad and that creates a lot of problems because there's compliance requirements that come with this rule and they will cost something. Compliance does cost money in terms of thinking about unintended consequences. We need to be thinking about what we crafting these rules before we craft them before they're going out into existence and going to apply to real businesses. What are the consequences of this? Are there unintended consequences? Are we going to have convenience stores now superstore, all kinds of stores that sell band-aids and Tylenol now having to comply with this rule and they could be very costly and what we need to be thinking about, those costs actually a lot of the time are going to be translated to cost to the consumer and be thinking that the unintended consequences will actually harm consumers in the end.

Svetlana Gans: And I would imagine it had a lot of impacts on small businesses too that have to comply with these, right?

Hon. Melissa Holyoak: Absolutely.

Svetlana Gans: So I wanted to talk a little bit about privacy. I know we have just 15 minutes left and we have so much material. I mean we could literally spend hours, but we won't, talk a little bit about privacy. You spoke about the identity of FTC, noting that we are not prudential regulators and I love that. What do you view the role of FTC in regulating privacy and do you have some priorities in that area?

Hon. Melissa Holyoak: Great question. I do. I think personal information, privacy, it's important to many Americans. I do have a lot of priority in protecting kids and teens online. We do have a rule called COPPA that is used to protect kids and teens online or kids I should say. And just recently, just a couple of days yesterday, gosh, the days are kind of rolling together. Just yesterday we announced a settlement with one app and we used this copper rule in our complaint. This app would send anonymous text messages to teens that would say things like, I'm stalking you on Instagram, I know what you did. And these were fake messages, but they were trying to get these teens, they were harassing these kids to try and get them onto this app. So these are the kind of things that are out there. I know I talked about yesterday at the hearing, I have four kids online and it's hard to track what they're doing.

I mean, it really does feel like a full-time job, like a second full-time job just trying to figure out what they're doing. It's tough. So these are important issues to me and I think we have some good tools that we can use to address these issues. But I think I know that Congress is considering more and I would fully support comprehensive privacy legislation in this area. I think there's a lot of thorny issues in privacy. We have questions about a private right of action, whether we should have complete preemption and some of these, and not to mention also data minimization. How do we want that to apply and if we have it so restrictive, will that stifle innovation? So there's a lot of really difficult policy questions that I think are best left to Congress to weigh those trade-offs and decide how Americans will best be served by that.

Svetlana Gans: Well, I know the FTC is also thinking about its own privacy rulemaking, so we'll kind of see what happens there.

Hon. Melissa Holyoak: Yes. And I won't comment on that.

Svetlana Gans: All right, sticking with consumer protection. Another recent announcement from the FTC was a proposed settlement with Arise, and maybe some folks aren't familiar as familiar with it, but it'ss an important case to resolve the claims that the company was misleading consumers about the money they could make on a Rises platform and marketing its business opportunity without complying with FTCs business opportunity rule. Your concurrence was interesting because it noted kind of the FTCs coordination efforts with the Department of Labor and you qualify that as puzzling, right? The level of coordination. Do you see the level of coordination between, for example, the FTC and labor, an example of the FTC trying to exceed its authority going into, that's why had the non-compete role. We had a lot of RFIs on labor issues, there was a focus on workers. Where do you see the shift and is it a problem?

Hon. Melissa Holyoak: Yeah, that's a great question and I guess I'll just give a little bit of more background on this matter. On this Arise matter, they were marketing a business opportunity to these women to be able to make, you can open your own business and you can become a call center rep and for many different companies and use our platform to do it. And they would invest in this and become these representatives. We thought they were being deceptively marketed because it didn't really explain how much they would actually make. So I voted for the complaint, I thought the complaint was strong. It explained why these business opportunities were being deceptively marketed.

There's also a Department of Labor case going to trial next week I believe that is arguing that these same consumers are actually employees of this company and because they're being tightly controlled. So what I found, what's interesting about that is the Department of Labor in trying to determine whether these are independent contractors or employees. The whole question is are they in business for themselves? Are they independent contractors? Are they in business for themselves? Whereas our complaint is focused on we sold you a business opportunity, you were going into business with yourself and it is a business opportunity. There's quite a bit of tension between that. In Chair Khan's statement, she explained that this was a great example of collaboration because this was a marketing opportunity that was deceptively marketed to these folks where the company retained tight control. 

And how I responded in my dissent was, well, if they were employees, then they were deceptively marketed. An employment relationship, not deceptively marketed a business opportunity. I voted for the complaint though because I thought the complaint set forth strong allegations of why this was a business opportunity and that's why it was deceptively marketed. But what I also noted was that we protect consumers. We don't have a mandate to protect workers. We are not the Department of Labor. Sometimes our consumers are workers, but we need to be focused on our mandate and not be expanding our mandate to other areas.

Svetlana Gans: That's interesting. I wanted to talk a little bit about the role of economics at the commission. I know you have an amazing economic advisor in your office.

Hon. Melissa Holyoak: I do, everyone give Joel a round of applause.

Svetlana Gans: So what is the current role of economics at the FTC and do you think it's getting sufficient focus at the commission right now? I know there's a lot of talk that it is, but in terms of what's coming out of the agency, one could question whether that's true or not. The other thing I noticed that in the FTC's budget requests, they only asked for three FTEs in the Bureau of Economics, comparing that with other significant requests for other parts of the agency, including for rulemaking and other things. So what is the current role of economics at the FTC? What is your take on it in your office in terms of your analytical framework? Kind of walk us through that.

Hon. Melissa Holyoak: Well, economics is important for every agency, but for the Federal Trade Commission, it is critical. And I think what the agency has had historically, and it's been excellent, is an independent bureau of economics. I rely heavily on them. I have a great relationship with the Bureau of Economics, especially with the director. He's wonderful. And we meet all the time and they provide excellent insight and independent insight into these things. And I think it needs to remain independent. Of course, we meet with different divisions and attorneys that are going to be talking to us about the legal framework and the legal theories. But what I'd like and what I think is so valuable is to have these different perspectives on the harms and understanding that from an economic perspective, and those are truly invaluable. We need them, I mean, for antitrust effects, it's just absolutely critical to the case. So having that independent voice is extremely critical and I think we need to maintain that.

Svetlana Gans: All right, so I also wanted to commend your May 31st speech at ci. If folks haven't read it, please do it. It's really great. There were many key takeaways for me on that speech, but specifically I want to ask about. You talked about your concern with the FTCs movement away from the protection of competition and consumers to the protection of competitors. The other big theme you discussed is kind of the problems with government overstepping into regulating inherently subjective areas, which kind of resonated with me in light of, for example, the FTC-UMC policy statement, which seems pretty subjective in my personal view. So can you elaborate on those two concerns in particular? And then I want to maybe if we have time, walk through the four pillars that you talked about in terms of priorities.

Hon. Melissa Holyoak: Sorry, tell me the two areas you want me to talk about?

Svetlana Gans: The movement away from the protection of competition and consumers to protection of competitors and overstepping into regulating inherently subjective issues.

Hon. Melissa Holyoak: Okay. Great questions. No, that should always be our focus is what's happening. We're protecting, promoting competition when we move away from that and we move to just protecting competitors. I think what's interesting, and I think I talk a little bit about this in my CEI speech about Adam Smith and rent seekers is if you're protecting a specific party, a competitor, you're just ensuring that the rent sinking is going to, if not continue, increase significantly because you're going to have those folks come in who will want to be protected. Yes, I want to be protected. I am a competitor and I am, you know what? My competitor across the street is beating me in business, but I want my protection, so come in regulator and help protect me. And the rent sinking will just continuing on and on in terms of pursuing into subjective areas. I think that's a great point. We need to keep our focus on our mandate on what we're supposed to be doing, promoting competition, unfair and deceptive trade practices. And I think another point about this is thinking more about the Loper decision is a great reminder of what we need to be doing hewing closely to the statutes, both in enforcement and in rulemaking, thinking about where does our authority lie? And that will keep us, I think, on the right path if we can keep to the statutes and what we're supposed to be doing.

Svetlana Gans: Yeah, and I was going to ask about that before we end in terms of the impacts of those recent Supreme Court decisions on the work of the FTC especially, for example, unfairness. What is that? What does that mean? Right? Do you see that having an impact in terms of the FTC's path forward in terms of a broad UMC case or rule or whatever on that issue?

Hon. Melissa Holyoak: That's a great question. In terms of rule makings, I think I really liked Justice Gorsuch's concurrence. I think I mentioned this yesterday. He talks about how judges are law finders, not lawmakers. And to do that, you need to look at the statutory text, linguistic context, the canons of statutory interpretation. And I think that will be our job as well, right? We now have to show the court when we are defending our, whatever action it is that we we're doing is the right interpretation, not some permissible, reasonable interpretation. And so reminding us to stay on that path, it is important. And it's important also for just the reasons that we started this chat about the constitution, about separation of powers and how we need to implement those and effectuate that.

Svetlana Gans: Well, I think given this is a Federalist Society program, starting and ending with the Constitution is probably a good place for us to stop. So please join me in thanking Commissioner Holyoak for her time.

Nathan Kaczmarek: Excellent conversation as expected. Thank you, Svetlana. Thank you, commissioner. We look forward to having you both back again soon. Thank you as well to our audience and we are adjourned.