Henry Su Quoted in Law360 on FTC Transparency

Bradley partner Henry Su was quoted in Law360 on Federal Trade Commission transparency. A failed effort last month to kick off a Federal Trade Commission study requiring pharmacy benefit managers to explain how their business practices affect competition highlighted the limits of agency Chair Lina M. Khan's effort to cast the traditionally opaque FTC as more transparent. The FTC never publicly acknowledged the results of that 2-2 vote, despite holding it in open session after announcing it previously and declaring the results of a separate vote in favor of a rulemaking, demonstrating that Khan's devotion to openness isn't absolute.

During open meetings the commissioners can only listen to truncated presentations from staffers and will not ask questions or hear confidential details. 

Su said, "It really does limit the participation of knowledgeable staff.”

Some former FTC staffers see nothing incongruous in a defeated vote going unacknowledged, given the general policy to only announce votes in the affirmative.

"The Office of Public Affairs isn't going to cover something that the commissioners can't agree on," Su said.

Commissioners of either party, whether in power or not at the agency, Su noted, have always felt they could talk to the press or release commentary publicly, regardless of what the FTC itself announces. "There are more than enough opportunities for the commissioners themselves to speak further," he said, "about something that didn't pass."

The original article, “Public Vote With No Public Record Tests FTC Transparency,” appeared in Law360 on March 1, 2022. (login required)