News, Developments and Practical Advice from Antitrust Leaders

Antitrust Advocate

Home | Antitrust Advocate

<img class="alignright size-medium wp-image-1629" src="https://antitrustadvocate.bakerhostetlerblogs.com/wp-content/uploads/sites/14/2015/08/FTC-iStock_000065443239_Large-300x200.jpg" alt="" width="300" height="200" />Back in April, we <a href="https://www.antitrustadvocate.com/2017/04/20/case-closed-ftc-announces-new-processes-for-potentially-ending-investigations/">reviewed</a> several new initiatives within the Federal Trade Commission (FTC) focused on eliminating “wasteful, legacy regulations and processes that have outlived their usefulness,” including “process reforms” for civil investigatory demands (CIDs) for reviewing and closing some investigations. Now, six months later, we thought it useful to consider whether these new initiatives have been meaningfully applied to investigations.

Since announcing its process reforms, the FTC has <a href="https://www.ftc.gov/news-events/press-releases/2017/08/federal-trade-commission-closes-investigation-honeywell">attributed</a> the closing of only one investigation to the reforms. This previously nonpublic investigation <a href="http://ftcwatch.com/issue-preview/?_s2member_seeking%5Btype%5D=post&amp;_s2member_seeking%5Bpost%5D=24273&amp;_s2member_seeking%5B_uri%5D=L2Z0Yy1jbG9zZXMtYXV0b21vYmlsZS1yZWZyaWdlcmFudC1wcm9iZS8%3D&amp;_s2member_req%5Btype%5D=sp&amp;_s2member_req%5Bsp%5D=24273&amp;_s2member_res%5Btype%5D=sp&amp;s2member_seeking=post-24273&amp;s2member_sp_req=24273">reportedly</a> began six years ago. In a <a href="https://www.ftc.gov/news-events/press-releases/2017/08/federal-trade-commission-closes-investigation-honeywell">press release</a> on the closing, Acting Chairman Maureen K. Ohlhausen explained: “Matters that ultimately do not merit enforcement action can and should be closed promptly.”

One may deduce that the FTC closed the investigation when, after years of scrutiny, it determined there was insufficient basis to conclude a violation may have occurred. This would suggest that the FTC’s process reforms might be inconsequential in application, since the FTC’s Operating Manual already calls for closing investigations that “reveal[] no violations of the laws or regulations enforced by the Commission.” Alternatively, it is also possible that the reforms did meaningfully inform the FTC decision to close the investigation, as a parallel investigation <a href="http://globalcompetitionreview.com/article/1145615/us-ftc-shuts-down-refrigerant-investigation-still-pursued-in-eu">reportedly</a> continues in the European Union and the FTC’s reforms could explain this divergence by investigators.

With only one closing attributed to the FTC’s process reforms, it may be too early to ascertain the reforms’ impact on investigations going forward. But Ohlhausen’s references to the reforms indicate the FTC is considering them. And the FTC closing an investigation while the European Union continues to investigate suggests the reforms actually have been meaningfully applied by the FTC, and they could provide parties under investigation additional reasons for seeking to limit or end investigations.

Recent Investigation Closing Suggests FTC’s Process Reforms Might Be Meaningful