United States: FTC Approves New Compulsory Process Resolutions

The FTC approved eight new compulsory process resolutions intended to improve the efficiency of the agency's enforcement efforts. The FTC defines compulsory process as the "issuance of [court-enforceable] demands for documents and testimony, through the use of civil investigative demands and subpoenas." The resolutions passed by a three-two vote.

The resolutions enable the FTC to promptly investigate misconduct involving:

• service members and veterans;
• children under the age of 18;
• algorithmic and biometric bias;
• deceptive and manipulative activity on the Internet, including the "manipulation of user interfaces" such as dark patterns;
• restrictions on repair, including violations of the anti-tying provisions of the Magnuson-Moss Warranty Act;
• abuse of intellectual property rights in areas including pharmaceuticals, technology and gasoline refinery;
• potentially anti-competitive ownership stakes in competing companies and interlocking directorates; and
• market power abuses by large companies.

FTC Commissioners Noah Joshua Phillips and Christine S. Wilson voted against the resolutions, claiming that they eliminate the FTC's oversight of investigations and leave room for reduced accountability, errors, overreach, excess costs, and decision making that is rooted in political motivations. Chair Lina M. Khan and Commissioner Rebecca Kelly Slaughter disagreed with Commissioner Phillips and Commissioner Wilson's assessment of compulsory process, emphasizing that such a view overlooks the fact that a subpoena must always receive Commissioner sign-off and that an enforcement action cannot move forward without majority support from the Commissioners.

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