As the partial federal government shutdown continues, visitors to the FTC’s web site will see a banner at the top of the main page reading, “The FTC Is Closed Due to the Lapse in Government Funding,” and directing the reader to a page with details about the closure. That page reveals that not all FTC activities are completely shut down. The activities most essential for facilitating U.S. commerce continue in operation, though at a reduced level.
In particular, the one area in which the FTC appears to be maintaining a human staffing presence relates to premerger notification. Companies need to continue with mergers and acquisitions whether the U.S. government is operating or not, and filings with the FTC and DOJ Premerger Notification Offices are an integral part of these business combinations. The FTC’s site indicates that filings will continue to be accepted and processed with limited staff. However, for the duration of the shutdown, the FTC will not respond to communications regarding Hart-Scott-Rodino Act rules or filing procedures, nor will it grant early termination of waiting periods.
The other areas in which the FTC continues to function are essentially those that are handled by automated systems rather than people. These include e-filing of documents and public comments, submission of Freedom of Information Act requests, and the Registered Identification Number database for textile producers. The FTC is accepting electronic transactions in each of these areas, but warns that FTC action in response to any submissions will await the reopening of the government.
Other services, even mostly automated ones, that are on hold for the shutdown include the Do Not Call Registry, the ID theft reporting service at identitytheft.gov, the consumer complaint submission system, and the reporting of international e-commerce complaints at econsumer.gov.
Going beyond the FTC’s site, here is what to expect if you have an active matter before the Commission. The staff attorneys who make investigations and negotiations run at the Commission are out of the office, which means that if you are working with the FTC staff on an investigation or hammering out a consent decree, that process is on hold. If you are litigating against the FTC, either in an administrating proceeding or in court, what is happening well depend on your specific court and case. As reported by the Wall Street Journal today, some federal District Courts, such as the Northern District of Illinois, have suspended civil cases in which the federal government is a party. Others have not, and there may be cases in which judges have not granted the FTC extensions to account for the shutdown, and in which filings may still be due. The FTC will cope with these deadlines as best it can.
Although we sometimes litigate vigorously against the Federal Trade Commission, we regret the hardship being experienced by our friends and colleagues there, and look forward to the resumption of the FTC’s normal operations on behalf of competition and consumers.