In another round of contentious budget negotiations, the federal government is poised to shut down operations at midnight tonight, Monday September 30, 2013. Absent funding from Congress, federal agencies may not incur financial obligations that cannot be funded from prior appropriations.

FTC

As a result of the impending shutdown, furloughs of Federal Trade Commission (FTC) employees, including lawyers and support staff, will be issued on a rolling basis as work is completed to provide for the “orderly shutdown” of agency business. The FTC has announced a plan for dealing with its shutdown:

  • Premerger Notification Office: the FTC will remain open to accept new HSR filings.
  • Hart-Scott-Rodino (HSR) investigations: where HSR investigations are running up against a statutory waiting period after which the parties are free to close, the FTC will continue those investigations if it determines that failure to challenge before consummation “will result in substantial impairment of the government’s ability to secure effective relief at a later time.”
  • Non-merger Bureau of Competition (BC) investigations: all non-merger investigations will be suspended.
  • Bureau of Consumer Protection (BCP) matters: support for consumer protection matters will be evaluated on a case-by-case basis “focusing on the cases where there is the highest threat of immediate harm and on cases where the harm is ongoing.”
  • Pending litigations: in BC and BCP pending litigations where preliminary relief has already been granted or will not be sought, FTC attorneys will seek suspensions or similar relief, but may continue working to meet upcoming deadlines if necessary to “protect the Commission’s interests in the litigation.”
  • Other agency activities: a number of other ongoing agency activities will be suspended during the shutdown, including FOIA responses and policy and advocacy work such as work on reports, guidelines, and economic research, and participation in certain international bodies that promote competition or consumer protection enforcement.
  • Website: although not discussed in the FTC’s published plan, an FTC spokesperson has said that FTC’s website will be largely taken down.

DOJ

The Department of Justice (DOJ) has also announced a shutdown contingency plan, which includes some specific comments about the Antitrust Division’s operations. The DOJ plan assumes a “5-day funding hiatus” and states that the plan may need to be revisited if a shutdown persists.

  • Criminal litigation: will continue “without interruption” and employees in the Antitrust Division will be excepted from furlough to support both ongoing criminal trials as well as proceedings with scheduled court dates (e.g., arraignments, pleas, and sentencing hearings).
  • Civil litigation: continuances will be sought in civil litigation if doing so would not compromise “to a significant degree” life or property interests, but if a continuance cannot be obtained, Antitrust division employees will be excepted from furlough for work on those cases.
  • HSR matters: work will continue to prepare cases that must be filed due to HSR or statute of limitations deadlines if no extension or waiver can be obtained and Division “leadership determines that allowing a proposed merger to go forward without objection would pose a reasonable likelihood of peril to property in which the United States has an immediate interest.” The DOJ’s plan does not explain how the Antitrust Division will determine whether a merger proposes such a risk.