Use Your Time Wisely: Do's and Don't's for Effective Advocacy Before the Federal Trade Commission
Sheila F. Anthony
Given the readership of ANTITRUST REPORT, I know that many of you frequently wander the halls of the Federal Trade Commission, often with clients in tow. Each of you probably has developed your own sense of what works best, but surely you are always looking for ways to better serve your clients. I am delighted to share some of my insights about effective advocacy before the Commission.
Even more so than usual, my comments do not reflect the views of the Commission or any other Commissioner. While I suspect that other Commissioners may agree with some of my comments, I am speaking entirely for myself, based on my own philosophy of being an FTC Commissioner. I approach each case as a new challenge--a new chance to do the "right" thing and to protect the public interest to the best of my ability. In order to do my job responsibly, it is critical for me to gather as much information as possible before I make a decision. I very much want and need to hear all sides of the story, and for this reason I always welcome your arguments for or against Commission action.
While I make it a priority to give each matter as much time as I can, practitioners surely realize that, as a Commissioner of an agency with broad-reaching competition and consumer protection missions, I face many conflicting demands on my time. It is my hope that these comments will help you focus future advocacy efforts and make them as effective as possible.
I have organized my suggestions around four themes, which reflect what I see as the main components of advocacy before the Commission:
(1) maintaining credibility within the Commission;
(2) making submissions to Commissioners' offices;
(3) engaging in meetings with Commissioners; and
(4) demonstrating respect for Commission processes.
Within each of these categories, I will provide a few concrete "do's and don't's" for techniques that may help--or hurt--when dealing with me and my office. Again, I am speaking solely in terms of my own experiences as a Commissioner. But I would not be surprised if some of these suggestions might also enhance your relations with Bureau staff and management.
No matter what the case or forum, credibility is a good lawyer's single most important asset. This is especially true when practicing before the Federal Trade Commission. The world of antitrust and trade regulation is a small one. The same lawyers, often representing the same clients, come through the Commission's doors time and time again. Not surprisingly, if a lawyer makes a repeat appearance in my office, I am likely to recall the lawyer's past performances. Here are some tips to ensure that you don't burn any bridges:
Be realistic. Above all, don't jeopardize your credibility by overstating a case as black-and-white. In most matters before the Commission, there is at least one big gray area--otherwise you probably wouldn't need to talk to me in the first place. Be realistic about the sticky issues, recognize that reasonable minds may differ, and move on from there.
Don't fudge the facts or numbers. Do argue your case with facts and law. I advise strongly against playing fast and loose with facts and numbers, presenting misleading charts, or attempting to hide the ball. If you promise to provide corroborating documents, provide them promptly. If you present an economic analysis, it should be fair and appropriately conservative. In general, don't make any claim you cannot back up with documents or other evidence.
Don't rely on outside influence. Please, never assume that I will base my decisions on the recommendations of your clients' lobbyists or members of their corporate boards, or under pressure from a Member of Congress--although I might listen courteously. I have lived in Washington, D.C., for over twenty years and know a thing or two about how the town works. Where law enforcement matters are concerned, I generally react negatively, or at least cynically, to contacts I perceive as founded on politics and influential relationships. Of course, it is a different story if the Commission is dealing with a policy matter, in which case I welcome opinions from all affected parties.
Melodrama doesn't work. I wish this could go without saying, but it is simply not a good tactic to become emotional or to take the matter personally. Being a table-pounder may impress your clients, but it is very unlikely to impress me. I am equally turned off by sarcasm and gratuitous staff-bashing.
Be responsive, not evasive. And finally, be responsive to questions. If I or one of my advisors asks a direct question, provide a direct answer. If you don't know an answer, it's fine to say so--but do your best to find out the answer and provide it as soon as possible.
SUBMISSIONS TO COMMISSIOER'S OFFICES
The volume of paper that comes through my office is at times staggering. My staff and I do manage to get through all of it, but it takes a great deal of effort, I will admit. Here are some things you can do to ensure that your submissions are as useful as possible:
Remember--quality, not quantity. Of course, I expect the submissions of white papers and other supporting information, but it is important to send them as early as possible. If a 100-page white paper is delivered the evening before an 11:00 a.m. meeting, it is very difficult to review and process the information before the meeting. Also, try to make all submissions as concise and clear as possible. Quality, not quantity, is definitely what I look for. Some of the best white papers I have received were under thirty pages in length.
Simplify. Use your submissions to simplify complicated products, markets, or fact patterns. If you can provide product samples, demonstrations, visual aids, or anything else that will help me understand the case, so much the better.
Keep all Commissioners in the loop. I suggest that you copy all of the Commissioners' offices when you send documents or other information to one Commissioner. For example, if you send supplemental information in response to a question posed by another Commissioner, I would appreciate it if you would send me a copy as well.
Last-minute submissions rarely help. New information sometimes becomes available late in the game. But, as a tactical maneuver, if you can avoid it, a final-hour "dump" of affidavits or a new economic study tends to be less helpful to me.
MEETING WITH COMMISSIONERS
Once a matter has reached the Commission level, I encourage the parties to schedule a meeting with me. I want to hear their story directly. This is also my main opportunity to pose my own questions and get them answered. Whenever possible, I try to schedule meetings for the same day that the parties are talking to other Commissioners to make it easier for them to gather all of the core players at one time. When this is not possible, I am happy to try to schedule a conference call. Once we are all face to face (or voice to voice), here are a few things that will help you best utilize our limited time together:
Travel light. Please don't bring a cast of thousands into my office--I don't have that much space or that many chairs! Five or six should be the maximum number. But do include the businesspeople who have first-hand knowledge, and let them do as much of the talking as possible.
Don't spring new arguments at the meeting. I strongly advise against raising new arguments for the first time in a meeting with me. It is difficult for me to assess last-minute "tug at the heartstrings" arguments when I, not to mention Bureau staff and management, have never heard them before. This point also could have been made under the earlier topic of "maintaining credibility." If you come in with a "sky is falling" type of threat--such as "we'll have to close a significant number of stores, and jobs will be lost if the merger doesn't go through"--you would be wise to have supporting documentation to back up your claim. If you cannot present the proof, do yourself a favor and preserve your reputation.
Let both merger parties be heard. In a merger situation, do give the B-side a chance to state its own views, since I need to understand why the merger makes sense to both of the parties.
RESPECT FOR COMMISSION PROCESSES
In my experience, advocates who respect the processes in place at the Commission are likely to get the most out of the system. Here are some examples.
Work with the staff. Take full advantage of opportunities to talk to Bureau of Competition staff and management before escalating your case to the Commission level. By the time a matter reaches my office, I like it to have been the subject of extensive investigation and analysis. As much as I try to delve into the details of complex cases, I do rely on staff to consolidate the mountains of information collected from documents, interviews, investigational hearings, and especially meetings with the parties and their counsel. I can assure you that staff helps me to understand the parties' points of view, even if staff ultimately disagrees with them on the merits. And the more information that staff is able to convey to me about your arguments and perspectives, the more effective your own advocacy efforts will be.
Educate your clients. Clients need to have reasonable expectations regarding the Commission's investigatory and deliberative processes, especially timing issues. Educate your clients about how things work at the Commission. Please warn them that the Commission cannot be expected to turn on a dime unless it is absolutely necessary.
Step outside the box. Do think creatively in seeking settlements and other compromises. While I have great respect for Commission precedents, I am always looking for new and better ways to protect consumers--so don't hesitate to think "outside the box" and suggest something that might not have been considered before.
Don't ask for inside information. Finally, my attorney advisors have asked me to pass along this request: Please don't badger my staff for inside information about the status of the case. You certainly should call if you can offer pertinent information, or if you are politely making yourself available to answer my questions. My staff's number-one goal is to help me gather all of the facts I need to make a decision, and they will not hesitate to contact you if your help is needed. But generally speaking, they cannot and will not tell you more than they already have.
On any given day, the Commission deals with multiple matters, in both the competition and consumer protection areas. I give each matter the time and attention it deserves, within the constraints of the juggling act that constitutes my daily calendar. I hope that the suggestions I have offered here will help you maximize your advocacy opportunities, so that we can continue to work together effectively.