The FTC announced today that it has approved a notice adopting interim final rules amending Parts III and IV of its rules of practice. As boring as that sound, this is a big deal. Here is the Federal Register notice. There are a number of changes, for instance, deadlines are imposed to expedite the pre-hearing phase such that the evidentiary hearing will be held five months from the date of complaint in cases in which the FTC is seeking a preliminary injunction under 13(b) and eight months otherwise. The proposed rules generated quite a bit of public comment. As one can imagine, Whole Foods is a vocal opponent to these rule changes. One only need read their two public comments (here and here) to get a sense of the flavor of the debate. For instance, the opening line of the second link begins:
The Commission’s proposals are egregious government regulation that should not be adopted. The proposed rules are unnecessary, ill-advised, and unfair. If adopted, they would create administrative procedures that are unjust and deprive parties litigating before the Commission of their due process rights.
No Alice in Wonderland quote like the APA complaint (see Thom’s post here). But no pulled punches either. See also the comments from Arnold and Porter (Robert Pitofsky and Michael Sohn) and the ABA (James Wilson).
In related news, Whole Foods has apparently requested to depose Commissioner Rosch and obtain staff emails related to the investigation:
The retailer wants to depose Commissioner Thomas Rosch, a Republican on the FTC, because he voted to investigate the merger while also briefly acting as the internal FTC judge hearing the case. “We think there’s an inference to be drawn that Commissioner Rosch was in contact with investigative staff,” said Lanny Davis, a lawyer for Whole Foods, pressing to obtain e-mails between Rosch and the staff.
This doesn’t look like its going away any time soon.
