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FTC Commissioner Ohlhausen Shares Tips for Interacting with FTC Commissioners
Practical Law Legal Update 0-586-4605 (Approx. 4 pages)
FTC Commissioner Ohlhausen Shares Tips for Interacting with FTC Commissioners
by Practical Law Antitrust
| Published on 30 Oct 2014 • California |
The FTC published an interview with Commissioner Maureen K. Ohlhausen conducted during the ABA Antitrust Section's Post-Annual leadership meeting in which Commissioner Ohlhausen shared her personal tips for counsel and their clients when interacting with FTC Commissioners and staff.
In its October 2014 Federal Civil Enforcement Newsletter, the FTC published an interview with Commissioner Maureen K. Ohlhausen conducted during the ABA Antitrust Section's Post-Annual leadership meeting in August. In the interview, Commissioner Ohlhausen shared her personal tips for interacting with FTC Commissioners and staff. Commissioner Ohlhausen provided insight on, among other things:
- The value of meetings with Commissioners.
- What counsel and their clients should and should not do before and during Commissioner meetings.
Why Meet with Commissioners?
Commissioner Ohlhausen said she enjoys meeting with businesses and their counsel both during FTC investigations and outside the context of specific matters, to stay current on industry conditions. Commissioner Ohlhausen listed examples of when parties not under investigation have requested meetings, including to share:
- Suggestions for areas in which the FTC should conduct 6(b) studies.
- New developments in Chinese antitrust enforcement.
- New regulations in a market.
Commissioner Ohlhausen noted that she maintains an open door policy and encouraged outside parties and their counsel to schedule informational meetings. However, Commissioner Ohlhausen cautioned that she is skeptical of meetings requested by complaining competitors. Commissioner Ohlhausen advised that before scheduling a meeting, complaining competitors should:
- Have credible knowledge of the facts relating to the merger or conduct about which they are complaining.
- Consider the long-term consequences of what they are requesting, as a change in FTC behavior may negatively affect the complaining party or outside counsel's other clients in the future.
What to Do: Before a Meeting
Commissioner Ohlhausen listed recommendations for outside parties and their counsel to consider ahead of Commissioner meetings, including:
- Allow enough time for the Commissioners to read submissions prior to the meeting.
- Focus on quality of submissions over quantity.
- Contact the Commissioner's advisors to learn of any specific issues the Commissioner would like to see addressed at the meeting.
- Refrain from repackaging previous submissions to staff.
- Double-check data accuracy.
The Commissioner also noted that in many communications, counsel have misspelled her name. She requested counsel to take the time to get it right.
What to Do: During a Meeting
Commissioner Ohlhausen explained that there are certain practices that can lead to a more effective meeting with a Commissioner. She advised that outside parties and their counsel should:
- Use their best arguments and evidence to paint a full picture of their story.
- Know the facts of the case, including but not limited to:
- market dynamics;
- competition issues; and
- underlying business rationales.
- Consider bringing a businessperson to the meeting if that person can add value.
- Back up their case with economic evidence and consider bringing an economic expert.
- Introduce any new theories or set of facts to FTC staff before presenting them to the Commissioner.
- Be courteous to FTC staff.
Commissioner Ohlhausen noted that her tips for conduct during a Commissioner meeting also apply to conduct after a meeting, and that a poor post-meeting attitude may negatively affect a relationship with the FTC.
Commissioner Ohlhausen also provided insight into behavior that negatively affects a meeting. In particular, she advised outside parties and their counsel to:
- Avoid overstating beneficial facts or legal principles, or minimizing potential problem areas.
- Limit reliance on PowerPoint presentations.
- Present to and interact with the Commissioner rather than the Attorney Advisor.
- Recognize the merits of the case against them.
- Avoid using litigation tactics.
- Tailor their presentation to a specific Commissioner without making substantive changes.
Commissioner Ohlhausen emphasized that she valued the law, relevant facts and economics above all else, and that a presentation that incorporates all three is most likely to have an impact.
What to Do: After a Meeting
Commissioner Ohlhausen briefly noted that after the meeting, outside parties and their counsel should:
- Be judicious in sending subsequent submission e-mails.
- Refrain from complaining to a Commissioner's advisor about the amount of time the Commissioner allotted for your meeting.
Tips from Past Commissioners
Commissioner Ohlhausen ended the interview by sharing tips from past Commissioner Sheila Anthony. Commissioner Anthony advised counsel to:
- Educate clients on the timeline of FTC investigations and deliberations to manage expectations.
- Submit a letter to FTC staff or the Commissioner explaining timing issues if the client is facing a hard deadline, particularly in the merger context.
- Avoid asking for inside information regarding the status of a case, which is rarely provided.
For more information on FTC investigations and enforcement, see Practice Note, DOJ and FTC Antitrust Investigations, Section 5 of the FTC Act: Nonmerger Competition Enforcement Actions Chart and FTC Nonmerger Enforcement Action Timeline.