Earlier this week, the Federal Trade Commission’s Acting Chair, Maureen K. Ohlhausen, announced new and potentially meaningful processes to be implemented by the agency for reviewing and ending some investigations.
Responding to President Trump’s directives aimed at eliminating wasteful and unnecessary regulations, Ohlhausen stated that the FTC would be “focusing our resources where they will do the most good for the public, and eliminating wasteful, legacy regulations and processes that have outlived their usefulness.” As part of this effort, Ohlhausen announced that the FTC’s Bureau of Competition would be implementing initiatives that include:
- Establishing a group within the bureau to work on streamlining demands for information in investigations to eliminate unnecessary costs to companies and individuals who receive them.
- Reviewing the bureau’s dockets and closing older investigations, where appropriate.
- Integrating economic expertise early in the bureau’s investigations to better inform agency decisions about the consumer welfare effects of enforcement actions.
Two of the expected effects of these initiatives were explained in a subsequent interview of Tad Lipsky, acting director of the Bureau of Competition, reported by Global Competition Review. He said that the FTC’s “new initiative to reform its processes will keep investigations closely tied to economic theories of harm,” and that “economics will be the touchstone” for the bureau’s work. He also said that the FTC likely will adopt an “iterative” review of ongoing investigations and, rather than “letting investigations continue for weeks or months based on an initial understanding, the agency should come back frequently to address whether the issues are the same, information requests can be trimmed or information is needed in additional areas.”
The FTC’s announced initiatives, once implemented, may provide parties under investigation new reasons for seeking to limit or end investigations. The FTC’s initiative to eliminate unnecessary costs could bolster arguments that subpoenas and civil investigative demands – and investigations in general – should be pared back in scope in order to avoid imposing undue burdens. This initiative also could strengthen arguments for quashing broad subpoenas and demands pursuant to 16 C.F.R. § 2.10. And, the FTC’s initiative to review older files could open the door for parties to offer these new reasons for closing dormant investigations.
The FTC’s initiative to integrate economic expertise earlier in investigations, however, could be the most meaningful of the initiatives. By committing to make economics the “touchstone” for the Bureau of Competition’s work, parties could be better positioned to convince the FTC that investigations should be limited or ended when there is no economically sound theory for consumer harm. Likewise, by committing to keep investigations closely tied to economic theory, parties may be better armed relatively early to end investigations that lack merit or economic support for consumer harm.
In announcing its new initiatives, the FTC has begun to implement Trump’s much-publicized pro-business agenda. While the full scope and effect of these initiatives may not yet be known, they should be considered by parties under investigation because they could provide several new reasons for seeking to limit or end investigations by the Bureau of Competition.