The Strategic Plan describes the FTC’s strategic goals in promoting competition over the next five years, as well as the performance metrics by which the FTC will measure its success in achieving those goals. It enumerates three main strategic goals:
- Protect the public from unfair or deceptive acts or practices in the marketplace
- Protect the public from unfair methods of competition in the marketplace and promote fair competition
- Advance the FTC’s effectiveness and performance
Regarding its antitrust-focused strategy to protect the public from unfair methods of competition, the Strategic Plan lists four specific objectives:
- Identify, investigate, and take actions against anticompetitive mergers and practices
- Engage in research, advocacy, and outreach to promote public awareness and understanding of fair competition and its benefits
- Collaborate with domestic and international partners to check unfair methods of competition
- Support equity for historically underserved communities through the FTC’s competition mission
The Strategic Plan reflects the more expansive view of the FTC’s purpose advocated by current FTC Chair Lina Khan, broadening its stated goal from merely protecting “consumers” to protecting “the public,” namely “consumers, workers, and small businesses in historically underserved communities.”
To advance this goal, the Strategic Plan acknowledges the FTC’s intent to improve compliance with the Hart-Scott-Rodino (HSR) Premerger Notification Act, which gives the FTC and the Department of Justice authority to challenge anticompetitive mergers. Through HSR consent orders, the Plan aims to increase use of prior approval provisions, seek higher penalties for noncompliance, and utilize provisions designed to increase worker mobility, such as restricting the use of non-compete provisions. The Plan further aims to study the impact of merger and nonmerger conduct on worker wages, and also strives to minimize harm to historically underserved communities from anticompetitive conduct through pointed information requests and case evaluations.
The Plan was approved in a 3-1-1 vote, with Commissioner Christine Wilson’s notable dissent arguing that the Plan’s objectives fall outside the FTC’s statutory authority by pursuing such expansive “societal goals.”
The Performance Report and Plan, released on the same day, evaluates the FTC’s performance from fiscal year 2021 and discusses its performance plan for 2022 and 2023. The Report also compares the prior strategic plan to the newly released Plan. Whereas the previous strategic plan’s mission was to protect “consumers and competition by preventing anticompetitive, deceptive, and unfair business practices through law enforcement, advocacy, and education without unduly burdening legitimate business activity,” the new Plan aims to protect “the public from deceptive or unfair business practices and from unfair methods of competition through law enforcement, advocacy, research, and education.”
Importantly, the FTC’s newly announced strategy means that antitrust enforcement will include a broader analysis of anticompetitive harm and a renewed vigor towards ending merger and nonmerger conduct that negatively affects groups with little bargaining power. Given this increased scrutiny, now is the time for companies to rethink their business strategies and to make sure that they understand the procompetitive rationale and any anticompetitive effects resulting from their actions. Reed Smith can help with that process, and we will continue to monitor the FTC’s use of the Strategic Plan through our substantive antitrust, merger control, and compliance initiatives. For more details on our global antitrust practice, visit the Reed Smith website.
Client Alert 2022-216
