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.
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