Rules of Practice 16 CFR Parts 3 and 4 #538311-00002

Submission Number:
Linda Blumkin
Initiative Name:
Rules of Practice 16 CFR Parts 3 and 4
I have been a practitioner and teacher of antitrust law from my graduation from Harvard Law School in 1967 to my recent retirement as a law firm partner specializing in the antitrust aspects of mergers and acquisitions. A highlight of my career was my stint from 1977-79 as an Assistant Director for General Litigation in the FTC's Bureau of Competition. The FTC that I knew, respected (and, indeed, loved) during my time there and for many years thereafter was an essentially nonpartisan institution manned to a great extent by career employees of unquestionable dedication and devotion to serving the competition mission with fairness and impartiality, and overseen by senior managers and commissioners who largely shared that public service mindset. One of the mainstays of FTC practice was the existence of the administrative law judge who managed the administrative hearing process. The ALJ's actions were, of course, subject to Commission review and the ultimate Commission decision, but the ALJ's status -- at one remove from the fray, and typically with the respect earned through years of experience at this important work -- provided both the appearance and reality of impartiality. And what can be more important than that in an adjudicatory setting? While the shortness of time allowed by the 30-day comment period allows only these brief preliminary comments, I do want to make the following points: (1) 30 days is too brief for comments on a proposal that would make such drastic changes in the administrative process at the FTC. Why such a rush? Why foreclose the opportunity for considered comments by antitrust scholars, practitioners and organizations, and for reasoned consideration by the Commission of these comments? In this election year, the truncated timing of the comment period suggests a rush to resolve this matter before a change of administrations and in the membership of the Commission. Hopefully, this result was unintended, but nonetheless the perception of an unseemly rush to change the long-established rules does not serve the Commission well. (2) A rigid time frame for the commencement of an administrative hearing is a one-size-fits-all solution for diverse situations that can better be managed by an experienced ALJ who can impartially assess the needs of a particular case, including the amount of time necessary for the respondent to have a fair opportunity to prepare its defense. This is exactly the kind of nitty gritty hands-on function that ALJs perform so well. (3) Continuing to entrust the ALJs with responsibility for pretrial motions keeps responsibility for case management centered in the hands of the FTC official with the closest and best view of the case in the pretrial and administrative trial phases, as well as some independence from the initial decision to vote out a complaint. Absent a factual showing of disabling deficiencies in this process, which has served the Commission and litigants well for many years, this long-established practice should not be abandoned. The appearance of the Commission reaching to micromanage and control pretrial proceedings marks a profound change in the administrative process. As a young antitrust lawyer, I recall marveling at the strangeness of the Commission voting out a complaint as prosecutors and then putting on judge's hats and sitting in judgment on the case that they initiated: it is useful for all of us to continue to appreciate what a curious system this is. I came to think of the time that the case was in the hands of the ALJ as a sort of cooling off period, where others could work up the facts and assess the theories and bring considered work product back for the consideration of the Commission in its adjudicatory role: why mandate Commissioner intrusion into this phase too? Respectfully submitted, Linda Blumkin