Corporate Practice Series Portfolio No. 21-5th, Manual of Federal Trade Commission Practice, examines in detail the practices and procedures employed by the Federal Trade Commission in administering the Federal Trade Commission Act. The analysis outlines the missions and structure of the Commission and describes its functions. The description of Commission functions includes a discussion of enforcement policy and the issuance of advisory opinions and industry guides. It also discusses the process of enjoining conduct that may be deceptive or that may constitute unfair competition, including the premerger Hart-Scott-Rodino process, the decision to start an investigation, the means used to conduct an investigation, cooperation with other agencies and state and foreign governments, the decision whether to issue a complaint, injunctive proceedings, consent orders, cease-and-desist orders, and appeals to the Commission. It goes on to discuss the rulemaking process for trade regulation rules. The Commission's remedial and compliance functions are also examined.
Portfolio 21-5th: Manual of Federal Trade Commission Practice
I. Missions and Structure of the Federal Trade Commission A. Vision and Missions B. Structure of the Commission 1. The commissioners 2. The staff a. Enforcement bureaus (1). Bureau of Competition (2). Bureau of Consumer Protection b. Supporting bureaus and offices c. Regional offices d. Staff contacts with non-involved persons C. Laws Administered by the Commission
II. Functions of the Commission
. Introductory Material A. Enforcement 1. Merger enforcement—Bureau of Competition a. Hart-Scott-Rodino Act (1). Second requests (2). Penalties (3). Failure to file for reportable transactions (4). Confidentiality b. Horizontal Merger Guidelines (1). Evidence of adverse competitive effects (2). Targeted customers and price discrimination (3). Market definition and concentration (a). Market definition (b). Market participants, market shares, and market concentration (4). Potential adverse effects (5). Powerful buyers (6). Entry (7). Efficiencies (8). Failure and exiting assets (9). Mergers of competing buyers (10). Partial acquisitions 2. Non-merger antitrust enforcement—Bureau of Competition a. Statements of antitrust enforcement policy in health care b. Antitrust Enforcement Guidelines for International Operations c. Antitrust Guidelines for the Licensing of Intellectual Property (1). Technology or innovation markets (a). Technology markets (b). Innovation markets (2). Safety zone d. Antitrust Guidelines for Collaborations Among Competitors 3. Consumer protection enforcement—Bureau of Consumer Protection 4. Investigations a. The decision to start an investigation (1). Initial phase investigation (2). Full investigations b. How an investigation is conducted (1). Informal investigations (2). Formal investigations (a). Tools of discovery (i). Civil investigative demand (ii). Subpoena (iii). Investigational hearing (iv). 6(b) order (v). Order requiring access (vi). Judicial review of discovery (3). Cooperation with other agencies, the states, and foreign governments and foreign governments (a). International Antitrust Enforcement Assistance Act of 1994 (b). US Safe Web Act (c). Protocol with NAAG 5. Consent decrees a. Deciding whether to consent b. Negotiating a consent order c. Acceptance of a consent order 6. Preliminary injunction proceedings 7. Administrative complaint proceedings a. Pre-trial proceedings b. Trial of the complaint c. Initial decision d. Appeal to the Commission e. Scope of the order f. Finalization, enforcement, and reopening of orders 8. Compliance a. Compliance by respondent b. Compliance by non-respondents with trade regulation rules and cease and desist orders against others B. Policy, Research, and Educational Function 1. Advisory opinions 2. Industry guides 3. Advocacy filings 4. Research, reports, workshops, and conferences 5. Speeches, testimony, and press reports 6. Consumer websites C. Rulemaking 1. Rulemaking authority 2. Rulemaking procedures a. Proposed rule b. Issuance/non-issuance of rule 3. Commission review of rules 4. Judicial review
Wks. 1 Federal Trade Commission Act, [15 USC 41] 15 U.S.C. §§41–58
Wks. 2 Selected Procedures and Rules of Practice of the Federal Trade Commission, 16 C.F.R. §§1.1–1.99
Wks. 3 International Antitrust Enforcement Assistance Act of 1994, 15 U.S.C. §§6201–6212
Wks. 4 Guides for Advertising Allowances and Other Merchandising, Payments, and Services, 16 C.F.R. §§240.1–240.15
Wks. 5 Guide I: What is the Premerger Notification Program? (Revised March 2009)
Wks. 6 Guide II: To File or Not to File When You Must File a Premerger Notification Report Form (Revised September 2008)
Wks. 7 Guide III: Model Request for Additional Information and Documentary Material (Second Request) (Revised June 2010)
Wks. 8 Notification and Report Form for Certain Mergers and Acquisitions
Wks. 9
Wks. 10 The Most Frequently Asked H-S-R Questions *
Wks. 11 Guidance From the Bureau of Competition on Requesting and Obtaining an Advisory Opinion *
Wks. 12 Guidance From Staff of the Bureau of Competition’s Health Care Division on Requesting and Obtaining an Advisory Opinion*
Wks. 13 Procedures For Submitting Post–Consummation Filings (Updated: January 4, 2010)
Wks. 14 FTC Protocol for Coordination in Merger Investigations Between the Federal Enforcement Agencies and State Attorneys General
Wks. 15 Medicare Prescription Drug and Improvement Act Requires Drug Companies to File Certain Agreements with the Federal Trade Commission and U.S. Department of Justice
Wks. 16 Statement of the Federal Trade Commission's Bureau of Competition on Negotiating Merger Remedies
Wks. 17 U.S. Department of Justice & Federal Trade Commission, Antitrust Guidelines for Collaborations Among Competitors (2000)
Wks. 18 U.S. Department of Justice and the Federal Trade Commission Horizontal Merger Guidelines Issued: Aug. 19, 2010
Wks. 19 U.S. Department of Justice & Federal Trade Commission, Statements of Antitrust Enforcement Policy in Health Care (1996)
Wks. 20 U.S. Department of Justice & Federal Trade Commission, Antitrust Guidelines for the Licensing of Intellectual Property (1995)
Wks. 21 U.S. Department of Justice & Federal Trade Commission, Antitrust Enforcement Guidelines for International Operations (1995)
Wks. 22 Subpoena
Wks. 23 Motion to Quash a Subpoena
Wks. 24 Order Requiring the Filing of a Special Report
Wks. 25 Motion to Quash an Order Requiring the Filing of a Special Report
Wks. 26 Complaint
Wks. 27 Request for Opportunities for Oral Cross-Examination
Wks. 28 Initial Decision and Cease-and-Desist Order
Wks. 29 Final Order
Wks. 30 Checklist for Participation in a Rulemaking Proceeding
Brian K. Grube Jones Day Cleveland, OH
Michael H. Knight
Jones Day
Washington, D.C.