For some of our clients with issues before the FTC they were anxiously awaiting a resolution of the budget standoff. For others it would have been just fine if the FTC never reopened. Regardless of which camp you fall in you might be wondering where do companies with issues before the FTC go from here?
Government shutdowns are fairly rare – the last one occurred 17 years ago – and each one somewhat sui generis – e.g. the furor this time over the National Park Service – so there is little in the way of meaningful precedent. However, we can offer a few cautious predictions, bearing in mind that political punditry and meteorology probably are neck and neck in terms of forecasting accuracy. First, early signs are that the FTC is ready, willing and able to reengage. We personally have several matters before the agency and in one of them already this morning the FTC offered to confer with the judge and other parties sooner than what the judge had requested.
Second, for deadlines that passed during the shutdown or are a day or two away, expect the FTC to likely extend those; in fact, the FCC has already taken similar action. However, while the FTC may have to give itself (or request in the case of litigation) more time for certain activities, expect that the agency will seek to minimize those as much as possible. Don’t assume that because the government was shut down for two weeks that every deadline will automatically be extended for the same amount of time.
Third, with respect to requests by parties dealing with the FTC for more time, it’s probably prudent to also not assume that your time will automatically be extended by the length of the shutdown. Rather, the agency may make such decisions on a case-by-case basis depending upon the harm and prejudice that may otherwise occur. For example, if you were in the midst of negotiating a possible settlement with the FTC staff under a time deadline, you may be able to pick up where you left off since no discussion could have taken place during the shutdown. But if you were in the process of responding to an FTC CID under, for example, a 30 day deadline that is still a week or more away, you may not get an automatic 30 day extension since that work, most likely, could have proceeded largely unhindered by the shutdown. The same logic may also apply to the filing of comments before the Commission.
In any case expect the FTC to provide at least some guidance soon, perhaps even by the time you’re reading this. And, given the fact that another shutdown could take place 90 days from now anyone negotiating deadlines in the next few months with the Agency might want to clarify up front what happens if the lights go out again.