I was a former FTCer for many years, and one issue we would face every few years was how to objectively measure the success (or failure) of a law enforcement agency. It is an important issue that has to be addressed when crafting an agencywide strategic plan, a draft of which was released a few weeks ago. For many years, the key measure for the Federal Trade Commission’s (FTC) Bureau of Consumer Protection was how many orders were entered each year. And more recently, the key focus has been how much money the agency returned to consumers – a measure that could be more elusive given the AMG decision. But the raw number of cases filed per year has generally not been one of the agency’s strategic measures – and for good reasons, which we will discuss later.
Despite the agency’s lack of focus on counting cases, inevitably, the number of cases filed surfaces as a de facto measure of agency success in articles outside the building. Indeed, a 2019 USA Today story made that point and set forth a rather arbitrary means of counting cases filed – counting enforcement actions of $5,000 or more – and concluded that there was a decline in cases filed from one administration to the next. I remember wondering when the article came out where that $5,000 criterion came from and questioning many of the conclusions in the article.
Counting complaints filed is an inherently problematic way to measure the success or failure of a law enforcement agency. At the most basic level, you can have five staff working full time on a complex matter that results in one complaint and saves consumers hundreds of millions of dollars. At the same time, however, you can have one or two staff cranking out a series, or sweep, of relatively simple, straightforward complaints that will tally as many complaints but arguably have less of a broad impact. And if counting complaints were the ultimate strategic measure, it would certainly incentivize bringing the small cases and disincentive the resources needed to bring a single complex matter. Both types of cases are typically important and worth pursuing.
But I couldn’t help myself, so off to www.ftc.gov I went to count up complaints and see where things stood with this admittedly less-than-ideal measure, comparing 2020 with 2021, 11 months in. And I was surprised. I counted all consumer protection complaints (and new contempt actions) issued regardless of whether the case went into litigation or was settled. I did not count amended complaints, and I did not count settlements of complaints that were filed before 2020. If a federal or administrative consumer protection complaint was issued for the first time in 2020 or 2021, I counted it.
First, let me say this was not the most exciting project I’ve ever undertaken, despite what I learned growing up watching Count von Count on “Sesame Street.” Second, I am pretty confident in my numbers, but let’s just say the FTC website was not designed to make this an easy task, so please cut me some slack if I am off by a few, though one of my colleagues was kind enough to check my numbers. (Note to self: If I go back in time and end up back at the FTC, fix the website.) So here’s what I found: In 2020, 79 unique new consumer protection complaints were filed. As of Dec. 1, 2021, the agency is at 30. With one month left, the differential is huge; even if my counting was just a tiny bit sloppy, I am confident there is not a trove of 40-50 2021 complaints hiding somewhere on that website.
I instinctively knew the results would show fewer complaints in 2021, but the differential surprised me, and a lot of thoughts went through my head. (1) I just started a new career in which I am helping counsel clients about consumer protection issues. Is it really helpful for me to put forth numbers that some may wrongly interpret as suggesting a diminished threat of enforcement by the FTC? (2) I know the FTC staff quite well after working there for 23 years, and I would hate for anyone to see these results and in any way think that FTC staffers are not working hard. Nothing could be further from the truth. (3) I realized that even though this blog is clearly explaining why counting complaints is not a great measure, that message will likely get lost in the mix, and that’s problematic. (4) I reminded myself that I was the acting director for five months in 2021, so if there is somehow a wrongful interpretation that the agency is not fulfilling its mission, heck, some of that credit – or lack thereof – falls squarely on my shoulders.
So what do I think these numbers reflect? I really don’t think they reflect a declining FTC interest in bringing law enforcement – that would run counter to decades of agency history. But transitions are significant and can have an impact on output. After elections, it is pretty common for one administration to try to get a lot of cases out the door before the new administration takes over. There’s nothing wrong with that, and in fact, I generally think it can be a good thing to have a bit of a clean slate for a new administration. And of course, there were two FTC transitions in the mix – first to Acting Chair Rebecca Slaughter in January and then to Chair Lina Khan in June. That’s a lot of transition for one relatively small agency. Additionally, a split commission (which was in effect for the majority of 2021) is generally not conducive to getting cases out the door. Any former FTCer will tell you that. And to be clear, the agency has certainly done some interesting consumer protection things in 2021 aside from dealing with complaints – e.g., issuing policy statements, penalty notice letters and reports. And I don’t think we can point to the pandemic as the cause of the decline in case numbers, particularly given the fact that most of 2020 was included in that time frame.
But the numbers aren’t meaningless and are worth some real reflection, both inside and outside the agency. Now, to be clear, I would be even more surprised if we saw similar low complaint numbers coming out of the agency in 2022. For today’s blog, I delved only into numbers for the past two years, but I am quite confident that the 2020 complaint numbers are much more in line with typical agency levels. There is a great deal of interest in the FTC, and certainly there is some expectation that in 2022 we might be seeing some new and interesting complaints coming out of the agency. But the small cases are meaningful as well, and part of the FTC’s success has always been its ability to bring not only the large, complex cases but also the smaller, targeted matters. Both are important, and both achieve the agency’s mission of protecting consumers.