On July 1, the Federal Trade Commission (FTC) voted to approve seven omnibus resolutions allowing staff attorneys to use a mandatory process to investigate key enforcement targets. The vote went by party, with Democratic Commissioners Lina Khan, Rohit Chopra and Kelly Slaughter voting in favor of the resolutions, while Republican Commissioners Christine Wilson and Noah Phillips voting against. The vote – along with several other facts in the same public hearing – signals once again that new President Lina Khan intends to transform the FTC into a much more aggressive and potentially much more partisan consumer protection agency.
As explained in the FTC Press release, omnibus resolutions authorize a mandatory process for the main enforcement priorities:
Priority targets include repeat offenders; technology companies and digital platforms; and healthcare companies such as pharmaceutical companies, pharmacy benefit managers, and hospitals. The agency is also prioritizing investigations into harm to workers and small businesses, as well as harm related to the COVID-19 pandemic. Finally, at a time when merger filings are increasing, the agency is stepping up the crackdown on illegal mergers, both proposed and consummated.
FTC staff attorneys should always seek Commission approval before issuing mandatory process requests, which are typically issued in the form of civil investigation requests or summons. But with these resolutions, any FTC commissioner can authorize a mandatory process, without seeking the advice of another commissioner or a vote of the entire Commission.
“The reforms are designed to ensure that our staff can thoroughly investigate illegal business practices throughout the economy,” President Khan said. “They will help alleviate unnecessary staff burdens and reduce delays and bureaucracy” when it comes to advancing our Commission’s law enforcement priorities. “
Our catch. New FTC President Lina Khan has an aggressive agenda. And the other two Democratic commissioners, Rohit Chopra and Kelly Slaughter, have signaled that Khan has their full support, even when his proposed actions violate long-standing FTC policy or practice. Going forward, we expect the FTC to be much more aggressive in its enforcement and rule-making efforts, and much more partisan in its deliberations and voting patterns.