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Due Process in Competition Investigations – a U.S. FTC Perspective

Due Process in Competition Investigations – a U.S. FTC Perspective. Krisztian Katona U.S. Federal Trade Commission Bratislava, Slovakia February 21, 2014.

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Due Process in Competition Investigations – a U.S. FTC Perspective

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  1. Due Process in Competition Investigations – a U.S. FTC Perspective Krisztian Katona U.S. Federal Trade Commission Bratislava, Slovakia February 21, 2014 * The views expressed herein are those of the speaker and do not necessarily reflect the views of the Federal Trade Commission or any individual Commissioner.

  2. Due Process 1. Main contexts: • Separation between investigative and decision-making officials • Disclosure of alleged breaches of competition law to the alleged infringer • Opportunity for the alleged infringer to respond to the allegations 2. Due process benefits agencies 3. The international impact of due process

  3. FTC Internal Checks and Balances • Organization of the FTC – separation between investigative and decision-making officials • Involvement of Bureau of Competition (BC) front office at all key stages of an investigation • Key decision points in the investigation • Before filing a decision to close or challenge • BC front office vs. investigative staff • Commission – separate memoranda from BC and Bureau of Economics (BE) • Internal devil’s advocate panels

  4. Transparency • Disclosure of alleged breaches of competition law to the alleged infringer • Ongoing and open communication with the subjects of investigation at every stage • Staff communications with parties (informed parties) • Respondents can request meetings with management • Strong confidentiality protections – counterbalance to investigative transparency • Disclosure rules in litigation

  5. Engagement with Parties • Opportunity for the alleged infringer to respond to the allegations • Open and transparent process, opportunities to present views • FTC seeks and encourages regular substantive input from parties • Opportunities to present arguments, e.g., “white papers” • Two-way street and engagement • Adjudication phase

  6. Due Process Benefits Agencies • Party demands vs. agency perspective • Due process is essential to safeguard the rights of the parties and enables better informed agency decisions • Due process promotes investigative efficiency, particularly in light of scarce resources • Benefits regardless institutional structure

  7. International Impact of Due Process • Procedural differences can lead to inconsistent results • Failing to engage with parties can lead to uninformed decisions • Divergent conclusions, differing remedies • International standards of due process and procedural fairness (OECD, ICN, etc.)

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