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From Antitrust Law Daily, October 1, 2013

Antitrust Division to accept HSR premerger filings during shutdown

By John W. Arden, J.D., LL.M.

The FTC and the U.S. Department of Justice Antitrust Division will be open with limited staffing to accept Hart-Scott-Rodino premerger filings during the government shutdown, according to the agencies. However, other agency functions will not be available during the lapse in appropriations.

Visitors to the FTC website today were redirected to a page with the following statement: “Unfortunately, the FTC is closed due to the government shutdown.” Besides referencing the acceptance of HSR filings, the page noted that consumers may file FOIA requests, but the requests will not be processed; that consumers may not file complaints or register for Do Not Call; and that all public workshops, roundtables, hearings, and conferences are postponed until further notice. “We hope to be open soon,” it concluded.

The Antitrust Division website announced that the content on the site “will not be modified or updated until the lapse in appropriations has concluded.” Unlike the FTC’s website, the previously-posted content continues to be available. The site also noted that HSR filings, as received, “will be coordinated with the Federal Trade Commission.”

FTC plan. The Commission issued a plan for dealing with the shutdown. It explained that if it is necessary to close the agency’s operations, all employees would be furloughed except those: (1) performing work to address a threat to human life or property such that immediate action is necessary, (2) involved in the orderly shutdown of agency operations or performing duties where there is an implied authority to continue some functions, or (3) otherwise allowed by operation of law. FTC Commissioners are exempt from furlough and may continue to work, since they are Presidential appointees who are paid an annual salary that is not dependent on the hours or days they work, the plan noted.

Employees expected to be retained under the plan are up to five employees whose activities are necessarily implied by law and as many as 248 employees necessary to protect life and property through the prosecution of enforcement actions. An executive committee will meet each day to make recommendations to the Chairwoman regarding which excepted employees may be furloughed.

Work that will continue during the shutdown will include (1) those in the Bureau of Competition accepting premerger notification reports, reviewing premerger notification reports, litigating cases that challenge mergers and acquisitions, and investigating and challenging anticompetitive practices that do not involve mergers and acquisitions; (2) those in the Bureau of Consumer Protection actively litigating court or administrative cases as necessary to protect life and property; (3) those at the Bureau of Economics supporting ongoing litigations; (4) those at the Office of the General Counsel necessary to emergency appeals or pending cases where a motion for stay is denied; (5) those in the Office of the Executive Director necessary to protect the lives of excepted Commission employees and to protect Commission property, including its IT, data, and physical infrastructure; (6) those in the Information Technology department necessary to ensure the integrity and security of the agency’s IT infrastructure; and (6) those necessary in the Financial Management, Administrative Services, Records and Filing Support Services, and Human Capital Management groups.

During the shutdown, the Commission will not process Freedom of Information Act requests and does not anticipate engaging in rulemaking. It will not deal with ethics issues, engage in economic research, pursue ongoing studies, or issue reports or guides. “The Commission will not pursue the vast bulk of its competition and consumer protection investigations and prosecutions,” according to the plan.

Delay of FTC proceedings. Two orders regarding scheduling, delaying FTC proceedings in the event of a shutdown, were issued yesterday. The proceedings (In the Matter of LabMD, Inc. and In the Matter of Ardagh Group S.A.) were to be stayed for the duration of the shutdown and for an additional five business days thereafter. The evidentiary hearing dates and any pre-hearing deadlines were to be extended by the number of business days of the stays.

MainStory: TopStory Antitrust ConsumerProtection FederalTradeCommissionNews AntitrustDivisionNews

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