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FTC Seeks Comment on Draft of 2022-2026 Strategic Plan

joel.Mitnick@cwt.com's picture
Commentary by Joel Mitnick

The FTC requested comment on the preliminary draft of the agency's Strategic Plan for fiscal years' 2022 to 2026.

In its draft, the FTC outlined the following strategic goals:

  • Encouraging an "open and competitive marketplace for the benefit of the public," including:

    • deterring anti-competitive practices;

    • undertaking research and advocacy efforts to enhance public awareness of the benefits of fair competition;

    • engaging with domestic and international partners to ensure unfair competition is checked; and

    • "advanc[ing] racial equity, and all forms of equity, and support underserved and marginalized communities through the FTC's competition mission" through (i) a focus on illegal activities and mergers and acquisitions that negatively affect "underserved and marginalized communities" and (ii) additional research on the effect of anticompetitive conduct on such communities, including monetizing the amount of any harm, the percentage of such populations affected by competition-promoting actions, and the percentage of actions taken to support competition in activities disproportionately affecting such communities;

  • Protecting against predatory or deceptive marketplace practices, including:

    • detecting, thoroughly investigating and deterring such practices;

    • providing the public with information on such practices and resources to mitigate their harm;

    • domestic and international collaboration; and

    • advocating for racial equity and supporting marginalized communities; and

  • Metrics to be used would include:

    • dollar value of harm from potentially anticompetitive conduct and transactions having a disparate impact on consumers, workers, and small businesses in underserved and marginalized communities; and

    • percentage of populations impacted by actions taken to maintain competition who belong to traditionally underserved and marginalized communities.

Comments on the draft plan must be submitted by November 30, 2021.

Commentary

In this proposed strategic plan, the FTC seeks to formalize the current majority's informal policy of including the possible effects of proposed transactions and business conduct on minority and marginalized communities as a critical factor in the agency's legal analysis, notwithstanding the absence of statutory or judicial support for such an extension of law. So far, the DOJ has resisted, at least overtly, in grafting ESG factors into its antitrust analysis and investigations.

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