United States: Antitrust Alert: FTC Releases Draft Strategic Plan For 2014-2018

The Federal Trade Commission ("FTC") has released a draft Strategic Plan for Fiscal Years 2014-2018 (the "2014 Plan"). Despite the ambitious title, the 2014 Plan actually focuses on a small number of procedural issues. It provides no indication of the FTC's likely substantive agenda or enforcement priorities, nor does it commit the agency to implementing any particular reforms. Some may view the 2014 Plan as a missed opportunity to set forth the agency's priorities in more detail.

The 2014 Plan was prepared and issued pursuant to the Government Performance and Results Modernization Act of 2010, which requires the FTC to prepare a five-year strategic plan. The agency's last strategic plan was prepared in Fiscal Year 2009 (the "2009 Plan"). While the 2009 and 2014 plans are similar, the 2014 Plan is less ambitious due, to what the agency describes as "an austere environment."

In the 2014 Plan, the FTC sets forth three strategic goals: to maintain competition, to protect consumers, and to advance organization performance.  The first two goals correspond to the FTC's two main missions: antitrust enforcement and consumer protection.

Maintaining Competition.  The FTC's first priority will be to "identify and take actions to address anticompetitive mergers and practices that harm consumers."  The agency notes that rising litigation costs, caused by increasingly complex cases involving sophisticated economic theories and large amounts of data, could affect the number of enforcement actions it is able to bring. Nevertheless, the FTC aims to increase the efficiency and timeliness of its investigatory practices and to develop superior litigation skills to win more cases and to obtain more consent orders.

The 2014 Plan also aims to "increase the transparency of the [FTC] decision-making process, including assessing whether revisions to the enforcement guidelines are warranted." Specifically, the FTC promises to explain with sufficient detail the evidence and the theory of the case in the agency's pleadings and public statements. Historically, antitrust lawyers (mostly from private firms) have decried what they perceive to be a lack of transparency in agency investigations and decision-making. The FTC and DOJ have, in recent years, taken some steps to alleviate this concern, including publishing substantially revised Horizontal Merger Guidelines in 2010. The 2014 plan promises to continue the general effort, though it lacks specifics.

The FTC also promises to conduct effective research and stakeholder outreach to promote competition. The 2014 Plan calls for better collaboration with domestic and international partners to promote consistent outcomes on antitrust matters under concurrent review. According to the agency, collaboration with domestic and international partners should also promote policy convergence towards effective antitrust enforcement internationally.

The 2009 Plan provided benchmarks against which to measure the agency's success in maintaining competition by setting specific goals of savings of at least $500 million through enforcement actions in merger matters and $80 million through enforcement actions in non-merger actions. The 2014 Plan lacks such specificity.  It will measure success in maintaining competition as simply consumer savings through merger and non-merger actions to maintain competition.

Protecting of Consumers.  In its 2009 Plan, the FTC said it aimed to protect consumers in part by filing "large, difficult, or precedent-setting cases where appropriate."  The 2014 Plan is less bold. It aims to achieve consumer protection through "aggressive law enforcement" focused on preventing fraud, protecting consumer privacy, and policing advertising and new technologies. However, the agency cautions that the rising costs of litigation, including the costs associated with processing and storing electronic data, may affect the number of enforcement actions brought. The 2014 Plan also calls for  research and education initiatives to prevent harm to consumers and for increased collaboration with domestic and international partners.

Advancing Organizational Performance. The agency's third strategic goal is to advance organizational performance through improvements to human capital, infrastructure and security, information technology, finance and acquisition, and equality in employment. The 2014 Plan provides little detail regarding how it plans to accomplish this goal.

The FTC will accept comments on the draft plan until August 16, 2013. The draft Strategic Plan for Fiscal Years 2014-2018 can be found here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Kenneth W. Field
 
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