Antitrust Lawyer Blog Commentary on Current Developments

FTC to Revise Investigatory Rules, Attorney Disciplinary Rules

On January 13, 2012, the FTC issued proposed amendments to Parts 2 and 4 of its Rules of Practice (“Rules”). Written comments must be received by March 23, 2012.

The FTC first raised the need to reform Part 2 citing a substantial risk of delay and mistakes in the FTC’s discovery process based on the complexities of modern electronic document discovery involving high volumes of electronically stored information (ESI). The proposed changes are meant to expedite FTC investigations by (i) requiring a party’s continued progress in achieving compliance before granting time extensions to comply with Commission processes; (ii) requiring parties to engage in meaningful “meet and confer” sessions with FTC staff before they file any petition to quash Commission process; and (iii) eliminating the two-step process for resolving petitions to quash, and establishing tighter deadlines for the FTC to rule on petitions. The proposed revisions to Part 2 streamline the rules, update investigatory practices in consideration of ESI, and clarify parties’ rights and duties with regard to the FTC’s compulsory process.

Additionally, the FTC proposed to amend attorney disciplinary rules in Part 4 to provide more guidance on the type of conduct that may warrant disciplinary action and introduced processes for investigating and adjudicating allegations of attorney misconduct, issuing attorney reprimands, and suspending attorneys that have been disbarred.

Notably, Commissioner Rosch opposed the proposed changes, issuing a partial concurrence-partial dissent. Specifically, Commissioner Rosch approved the modernization of the Rules but criticized that the proposed changes lack two important reforms: mandatory compulsory process in all full-phase investigations and regular reports on the status of pending investigations to all Commissioners (not just the Chairman).

The Federal Register Notice is available at: http://ftc.gov/os/2012/01/120113part2and4frn.pdf

Melody Cheung
(202) 589-1834
mcheung@dbmlawgroup.com