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U.S. Chamber files lawsuit challenging Federal Trade Commission’s denial of FOIA requests

July 14, 2022

The U.S. Chamber filed a lawsuit in the United States District Court for the District of Columbia against the Federal Trade Commission (FTC) for its lack of transparency and accountability.

The circumvention of normal processes and the opacity of Commission operations have created a “black-box environment” that increases uncertainty for businesses. This uncertainty holds back new investment and ultimately diminishes the growth potential of our economy.

“The FTC is pursuing an aggressive agenda with far-reaching implications for American businesses and the economy. It is bypassing longstanding norms to expansively regulate industries and manage our economy with a government-knows-best approach,” said U.S. Chamber President and CEO Suzanne P. Clark. “We have witnessed the agency take a series of steps that collectively circumvent due process, concentrate power into the hands of the Chair, and utilize dubious legal means to achieve pre-ordained ends.”

While the Chamber recently prevailed in its appeal for the release of the FTC’s complete operations manual, the Commission continues to deny lawful requests for public information under the Freedom of Information Act (FOIA) that are essential for understanding the commission’s operations.

Examples of the FTC’s overreach and lack of transparency include using ‘zombie votes’ cast by departed commissioners; potentially coordinating with foreign governments to block mergers that U.S. law may not prohibit; circumventing civil service laws; and shifting power from career administrative law judges and others to the hands of political appointees.

“The consolidation of power into agency heads, circumvention of civil service laws, and an utter lack of transparency is unfortunately a pattern we are beginning to see at multiple federal agencies that are supposed to exercise expert, independent judgement. The Chamber is never hesitant to defend the rule of law and the rights of American businesses,” added Clark.

Specifically, the U.S. Chamber is suing the FTC to make public its materials related to:

  • FTC’s practice of counting “zombie votes” cast by former commissioners who have already left office as well as specific “zombie votes” cast, regardless of whether they were relied upon in a rulemaking decision.
  • FTC’s communications with the European Commission and other foreign jurisdictions regarding the merger of Illumina and Grail. The Commission may have collaborated with and relied upon a foreign government authority to strong-arm American corporations into abandoning a planned merger.
  • FTC’s prior employment status granted to Lina Khan while serving as a “legal fellow” under former Commissioner Rohit Chopra. The position of “legal fellow” is highly unusual and not a typical title used in relationship to staff positions in support of a commissioner.

The U.S. Chamber’s complaint against the FTC can be viewed here. Jeffrey M. Harris and Frank H. Chang of Consovoy McCarthy PLLC and the U.S. Chamber’s Litigation Center served as co-counsel for the U.S. Chamber.

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