On July 1, the Federal Trade Commission (FTC) voted to approve seven omnibus resolutions authorizing staff attorneys to use compulsory process to investigate key enforcement targets. The vote fell along party lines, with Democratic Commissioners Lina Khan, Rohit Chopra, and Kelly Slaughter voting in favor of the resolutions, while Republican Commissioners Christine Wilson and Noah Phillips voted against them. The vote — along with several others made at the same public hearing — again signals that newly minted Chair Lina Khan intends to remake the FTC into a much more aggressive, and potentially much more partisan, consumer protection agency.
As explained in the FTC’s press release, the omnibus resolutions authorize compulsory process for key enforcement priorities:
Priority targets include repeat offenders; technology companies and digital platforms; and healthcare businesses such as pharmaceutical companies, pharmacy benefits managers, and hospitals. The agency is also prioritizing investigations into harms against workers and small businesses, along with harms related to the COVID-19 pandemic. Finally, at a time when merger filings are surging, the agency is ramping up enforcement against illegal mergers, both proposed and consummated.
FTC staff attorneys must still seek Commission approval before issuing compulsory process demands, which are generally issued as civil investigative demands or subpoenas. But with these resolutions, any single FTC commissioner can authorize compulsory process, and that without seeking the input of any other commissioner or a vote of the entire Commission.
“The reforms are designed to ensure that our staff can comprehensively investigate unlawful business practices across the economy,” said Chair Khan. “They will help relieve unnecessary burdens on staff and cut back delays and ‘red tape’ bureaucracy when it comes to advancing our Commission’s law enforcement priorities.”
Our Take. Newly minted FTC Chair Lina Khan has an aggressive agenda. And the two other Democratic commissioners, Rohit Chopra and Kelly Slaughter, have signaled that Khan has their full support, even when her proposed actions violate longstanding FTC policy or practice. Moving forward, we expect the FTC to be much more aggressive in its enforcement and rulemaking efforts, and much more partisan in its deliberations and voting patterns.