The U.S. Chamber of Commerce blasted the Federal Trade Commission in a letter yesterday for what it calls unfair proposed changes to regulations in its Rules of Practice regarding merger cases.
R. Bruce Johnson, executive vice president for government affairs, writes in the letter to FTC Chairman William Kovacic that under the proposed changes, the period for discovery in merger cases would be significantly shortened, going from a more fluid case-by-case approach to a standard five-month window.
The proposed regulations would also strip the power to rule on pre-trial motions from independent administrative law judges and give it to commissioners. The chamber says that by moving that power from administrative judges to individual commissioners, the same commissioner could file a complaint against the parties in a proposed merger and then preside over discovery and pre-hearing proceedings, effectively making them the prosecutor and the judge in a trial.
“With such a clear potential for unfairness or conflict of interest at the forefront of FTC administrative adjudication, it is necessary to preserve some sort of fairness check,” Johnson says.
Johnson says that there “is no justification” for shortening the time period of administrative proceedings, despite the FTC’s assertion that the changes will make the process more efficient and effective, and that they will put businesses at a significant disadvantage when litigating against the FTC.
In the letter, Johnson also takes issue with the brief, 30-day time period the FTC allowed for comments from businesses, saying the changes “infringe on due process rights and are not a proper approach” and the period of time for hearing comments is inadequate. He asks that the window, which closes today, be extended.
The chamber’s comments echo similar complaints lodged last month by Whole Foods Market, which is embroiled in an administrative trial to determine whether its merger with Wild Oates Market earlier this year violated antitrust law. That merger is all but complete, lawyers for Whole Foods say.