Citing recent experiences showing that some Federal Trade Commision (FTC) Respondents “are not taking seriously their obligation to provide detailed and timely” compliance reports, the Director of the FTC’s Bureau of Competition, Bruce Hoffman, and the Acting Assistant Director for Compliance, Roberta Baruch, announced in a blog post on March 11, 2019, new language that will be included in future Commission orders in competition cases.  Stressing that the new language is “a clarification, not a change” in existing Commission policy, the blog post states that future orders will include language expressly providing that “[e]ach compliance report shall contain sufficient language and documentation to enable the Commission to determine independently whether Respondents are in compliance with the Order.” 

This means, by way of example, that in merger cases “compliance reports must include a detailed description of what steps the Respondent has taken to market and sell the assets . . . includ[ing] a timeline and a detailed description of the Respondent’s sales efforts, the specific buyers or potential candidates with which the Respondent is negotiating, the nature and status of negotiations, and the expected timeframe for completion and divestiture.”  The blog post adds that “[w]here appropriate, copies of relevant documents or other evidence should be submitted with the reports to demonstrate compliance.”

Because the Bureau asserts that the new language merely clarifies, but does not change, existing policies, parties who are currently subject to Commission competition orders should pay close attention to this recent announcement.  Indeed, the blog post warns that “Respondents should expect Bureau staff to play an active role in ensuring that parties comply with their reporting obligations.”  As if to emphasize this point, the blog post notes, more than once, that a deficient compliance report can itself be an independent law violation “and lead to civil penalties even in the absence of any violation of the order’s other terms.”  Finally, the blog post notes that Respondents can take steps to ensure compliance and avoid potential enforcement actions by “establishing effective internal policies and procedures to regularly review, investigate and verify order compliance” in order to “detect and correct areas of possible noncompliance promptly.”

The blog post may be found here.

March, 2019