Author: hbarber

Federal Trade Commission Chairman Andrew N. Ferguson has appointed David Shaw as Principal Deputy Director and Kelse Moen as Deputy Director of the agency’s Bureau of Competition and Douglas C. Geho as Deputy Director of the Bureau of Consumer Protection.

Shaw is an experienced antitrust lawyer with expertise in high-stakes litigation and contentious merger review. During the first Trump Administration, Shaw served in the Department of Justice’s Antitrust Division in a variety of roles, from the front lines as a trial attorney to the front office as acting chief of staff. As a trial attorney, he served on multiple trial teams, including the first litigated vertical merger challenge in forty years. While serving in DOJ’s front office, he held a leadership role in the Big Tech investigations and successfully coordinated a bipartisan coalition of state attorneys general joining the DOJ complaint in the Google search monopolization case.

In addition to his government service, Shaw was a partner in the antitrust practice of a large international law firm. He received his J.D. from the Georgetown University Law Center and his B.A. from Patrick Henry College.

Moen is an experienced antitrust attorney, with a career in both government service and private practice. Most recently, he served as senior counsel to the U.S. Senate Judiciary Committee for Senator Lindsey Graham, where he focused on antitrust, technology, and intellectual property issues, a position that he held until his appointment to the FTC.

Before joining the Judiciary Committee staff, Moen spent nearly a decade practicing antitrust law at major international law firms, representing businesses and individuals in high-stakes and high-profile government investigations, class actions, civil and criminal litigation, and merger reviews. He clerked for Judge Robert Mariani of the U.S. District Court for the Middle District of Pennsylvania. He is a graduate of Emory University and Cornell Law School.

Geho is a highly talented lawyer with extensive enforcement, regulatory, and litigation experience. During the first Trump Administration, Geho served at the Department of Labor as Counsel and Policy Advisor, and then Counselor to the Assistant Secretary for Policy, where he advanced efforts relating to regulatory and enforcement reform, worker safety and training, and additional Administration priorities. He then served as a lead attorney for the House Judiciary Committee and two of its subcommittees. He also managed investigations for the Senate Committee on Homeland Security and Governmental Affairs.

Most recently, Geho served as an Attorney Advisor to Commissioner Melissa Holyoak handling consumer protection matters for her office. He clerked for Judge Alice M. Batchelder on the U.S. Court of Appeals for the Sixth Circuit. Prior to his government service, Geho was a litigator in private practice. Geho is a graduate of Georgetown University’s Law School and Grove City College. 

The Federal Trade Commission today announced a final “click-to-cancel” rule that will require sellers to make it as easy for consumers to cancel their enrollment as it was to sign up. Most of the final rule’s provisions will go into effect 180 days after it is published in the Federal Register.

“Too often, businesses make people jump through endless hoops just to cancel a subscription,” said Commission Chair Lina M. Khan. “The FTC’s rule will end these tricks and traps, saving Americans time and money. Nobody should be stuck paying for a service they no longer want.”

Image

The Commission’s updated rule will apply to almost all negative option programs in any media. The rule also will prohibit sellers from misrepresenting any material facts while using negative option marketing; require sellers to provide important information before obtaining consumers’ billing information and charging them; and require sellers to get consumers’ informed consent to the negative option features before charging them.

The final rule announced today is part of the FTC’s ongoing review of its 1973 Negative Option Rule, which the agency is modernizing to combat unfair or deceptive practices related to subscriptions, memberships, and other recurring-payment programs in an increasingly digital economy where it’s easier than ever for businesses to sign up consumers for their products and services.

Commission approval and publication follows the March 2023 announcement of a notice of proposed rulemaking which resulted in more than 16,000 comments from consumers and federal and state government agencies, consumer groups, and trade associations.

While negative option marketing programs can be convenient for sellers and consumers, the FTC receives thousands of complaints about negative option and recurring subscription practices each year. The number of complaints has been steadily increasing over the past five years and in 2024 the Commission received nearly 70 consumer complaints per day on average, up from 42 per day in 2021.

The final rule will provide a consistent legal framework by prohibiting sellers from:

• misrepresenting any material fact made while marketing goods or services with a negative option feature;
• failing to clearly and conspicuously disclose material terms prior to obtaining a consumer’s billing information in connection with a negative option feature;
• failing to obtain a consumer’s express informed consent to the negative option feature before charging the consumer; and
• failing to provide a simple mechanism to cancel the negative option feature and immediately halt charges.

Following an evaluation of public comments, the Commission has voted to adopt a final rule with certain changes, most notably dropping a requirement that sellers provide annual reminders to consumers of the negative option feature of their subscription, and dropping a prohibition on sellers telling consumers seeking to cancel their subscription about plan modifications or reasons to keep to their existing agreement without first asking if they want to hear about them.

The Commission vote approving publication of the final rule in the Federal Register was 3-2, with Commissioners Melissa Holyoak and Andrew N. Ferguson voting no. Commissioner Rebecca Kelly Slaughter issued a separate statement and Commissioner Holyoak issued a separate dissenting statement.

FTC staff has developed a fact sheet summarizing the changes to the rule. The primary staffer on this matter is Katherine Johnson in the FTC’s Bureau of Consumer Protection.