Effective Advocacy Before the Commission

To outsiders, the decision-making process at the Federal Trade Commission may seem like a black box. In particular, there is little published guidance on how to navigate the Commission once agency staff recommend an enforcement proceeding. In this article we offer an overview of the FTC complaint recommendation process, some observations on the considerations relevant to the Commission’s decision to enforce, and some suggestions for how parties can be effective before the Commission in light of those considerations. Based on our experience as advisors to an FTC Commissioner, we have observed that the most effective advocates before the Commission tend to adhere to a few key strategies that we discuss in the article. We have observed that the in-person meeting with each Commissioner is usually a party’s best chance to convince the Commission to reject the staff’s complaint recommendation. We offer suggestions on ways to make the most of this and other opportunities for advocacy before the Commission