Federal Trade Commission and DOJ Enforcement

Both the Federal Trade Commission and the U.S. Department of Justice enforce U.S. antitrust laws. However, each has certain exclusive authority.

The FTC is an independent regulatory agency led by five commissioners. The Department of Justice Antitrust Division operates under the U.S. Attorney General. DOJ investigations can be conducted by the DOJ’s criminal sections.

The Federal Trade Commission can pursue a variety of actions in federal court against violators of the laws it enforces. The agency has independent authority to litigate cases in its own name. With some exceptions, the Attorney General is responsible for the conduct of all litigation in which the United States, or one of its agencies, is a party.

The Commission is authorized to represent itself by its own attorneys in suits for injunctive relief under Section 13 of the FTC Act; suits for consumer redress; petitions for judicial review; suits to enforce compulsory process; and suits to prohibit recipients of compulsory process from disclosing the existence thereof. In addition, the FTC may represent itself if the Attorney General does not agree to do so. This enables the Commission to prosecute and defend by its own attorneys a wide variety of cases that the Department of Justice may decline to litigate. Contact an experience FTC law firm if you or your company have are subject to a regulatory investigation or enforcement matter.

In addition, there are situations in which the Department of Justice may appoint FTC attorneys as special United States Attorneys to represent the U.S. in litigation conducted by the Department of Justice. For example, sometimes, FTC attorneys can be appointed to prosecute criminal contempt.

Both share authority to enforce the Clayton Act and the Robinson-Patman Act and typically allocate merger reviews.

The FTC can refer matters to DOJ criminal lawyers for criminal enforcement. Only the DOJ can seek actual criminal sanctions.

The FTC also enforces consumer protection laws. While the FTC and DOJ can seek similar remedies, at times, the procedures vary significantly. For example, as opposed to the FTC, the DOJ does not have administrative proceedings or rule making authority.

Recently, the DOJ and the Federal Trade Commission announced updated international antitrust guidelines for enforcement and cooperation. The guidelines updated the 1995 Antitrust Enforcement Guidelines for International Operations and provide guidance to businesses engaged in international activities on questions that concern the agencies’ international enforcement policy as well as the agencies’ related investigative tools and cooperation with foreign authorities.

The revised guidelines reflect the growing importance of antitrust enforcement in a globalized economy and both agencies’ commitment to cooperating with foreign authorities on both policy and investigative matters.

“Anticompetitive conduct that crosses borders can adversely affect our commerce with foreign nations. The department’s antitrust enforcement is focused on ending that conduct in order to protect consumers and businesses in the United States,” said Acting Assistant Attorney General Renata Hesse, in charge of the Department of Justice’s Antitrust Division. “The Antitrust Guidelines for International Enforcement and Cooperation released today provide important, up to date guidance to businesses engaged in international operations on our enforcement policies and priorities; the changes we have made to the international guidelines, last issued in 1995, reflect developments in the department’s practices and in the law over the last 22 years. Developed jointly with the FTC, the Guidelines are another powerful example of the benefits of collaboration between our Agencies.”

“The agencies’ enforcement of the U.S. antitrust laws now frequently involves activity outside the United States, increasingly requiring collaboration with international counterparts,” said former Chairwoman Edith Ramirez of the FTC. “The Guidelines … explain to the business and antitrust communities our current approaches to international enforcement policy and related investigative tools, and cooperation. They are the product of the excellent working relationship between our two agencies.”

Richard B. Newman is a Federal Trade Commission lawyer at Hinch Newman LLP.  His law firm’s website is https://www.hinchnewman.com/

Email him at rnewman@hinchnewman.com. 

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