Sept. 18, 2023

Amendment Would Better Recognize Impartiality Concerns During FTC Reviews

The U.S. Chamber of Commerce has petitioned the Federal Trade Commission to amend how it handles recusal petitions. The changes sought by the U.S. Chamber are intended to ensure that potential conflicts are fully brought to light in a way that will preserve the rights of companies being prosecuted by the agency.

The petition is a response to FTC Chairwoman Lina Khan’s decision not to follow the commission’s ethics official’s recommendation that she recuse herself from the FTC’s review of Facebook parent company Meta’s acquisition of Within Unlimited, a virtual reality fitness company. Before joining the FTC, Khan voiced her belief that Facebook should be prevented from making any future acquisitions, an opinion that critics in the business community said made it impossible for her to serve as an impartial adjudicator of Meta’s acquisition.

“There are open questions about whether any agency, especially one like the FTC, should be able to bring cases in administrative courts that the agency itself controls,” writes Sean Heather, senior vice president for international regulatory affairs and antirust for the U.S. Chamber. “It is absolutely the case that the agency should be prohibited from bringing cases in its own courts if it cannot assure a fair adjudicatory process free from bias.”

Altering the recusal rules would help prevent situations where an FTC commissioner would oversee a case where they had seemingly predetermined the outcome. The U.S. Chamber’s proposed amendment would require the commission to:

  • Formally recognize impartiality concerns around prejudgment extend beyond mere financial conflicts of interest.
  • Seek and receive written legal guidance from agency ethics officials for any recusal petition.
  • Require the commissioner subject to a recusal petition to disclose in writing the justification for any decisions not to recuse.
  • Issue a written decision explaining the grounds for any decision related to a recusal petition.

The FTC will publish the petition in the Federal Register sometime in the next few weeks. Once it is published, individuals interested in addressing the petition will have 30 days to submit comments.