Antitrust Alert: FTC Releases Draft Strategic Plan For 2014-2018

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...