FTC Seeks Public Comment on Agency's Rules of Practice

The Federal Trade Commission today issued proposed changes to two parts of the procedures that govern the way the agency operates. The proposed changes would streamline the FTC's investigatory procedures, make updates to keep pace with electronic discovery, and detail the agency's procedures for evaluating allegations of misconduct by attorneys practicing before the Commission.

The proposed changes, which will be published in the Federal Register and are subject to public comment until March 23, 2012, concern the procedures in Parts 2 and 4 of the agency's Rules of Practice. They are part of the FTC's effort to periodically review and update its rules to ensure that they are efficient and not unduly burdensome on outside parties.

Investigations. The proposed changes to Part 2 are designed to expedite Commission investigations and make sure the FTC's investigatory processes continue to keep pace with electronic discovery. For example, the proposed changes require parties to meet and confer with Commission staff on an accelerated basis in order to resolve electronic discovery issues relating to subpoenas and civil investigative demands (CIDs), as well as any other issues.

Proposals also include changes to:

• streamline the process for resolving disputes over FTC subpoenas and CIDs, as well as petitions to limit or quash FTC subpoenas and CIDs;
• expedite the FTC's pre-merger review process by giving the agency's General Counsel the authority to initiate enforcement proceedings when a party fails to comply with the Hart-Scott-Rodino second request process; and
• relieve parties of their obligations to preserve documents related to an FTC investigation after a year passes with no written communication from the Commission or staff.

A section-by-section description of the proposed Part 2 changes can be found here on the FTC's website.

Attorneys. The proposed changes to Section 4.1(e) clarify the agency's procedures for evaluating allegations of misconduct by attorneys practicing before the Commission. The proposed changes can be found here on the FTC's website.

The Commission vote approving proposed changes to Parts 2 and 4, 16 CFR, Parts 2 and 4, of the agency's Rules of Practice was 3-1, with Commissioner J. Thomas Rosch voting no and issuing a separate statement, in which he concurred in part and dissented in part.

In his statement, Commissioner Rosch noted his support for the Commission's efforts to modernize the agency's operating rules and his general agreement with the proposed changes. He nevertheless asserted that the proposed rule changes were insufficient because they did not include mandatory compulsory process in all full-phase investigations and regular reports on the status of pending investigations to all commissioners.

The proposed revised Rules of Practice can be found on the FTC's website and as a link to this press release. They will be published shortly in the Federal Register, and are subject to public comment beginning today and continuing through March 23, 2012. Comments can be submitted electronically here. The proposed rules, if finalized, will apply to all currently pending FTC investigations, unless the FTC determines that the application of a rule in a particular investigation would not be feasible or would create an injustice.

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