MSCI Asks FTC To Change How It Handles Recusal Petitions

On September 13, the U.S. Chamber of Commerce (USCC) petitioned the U.S. Federal Trade Commission (FTC) to change how it handles recusal petitions. The USCC said it is concerned about the unique power vested in the FTC to both prosecute companies, and to decide cases against those companies in an internal court.

The USCC also argued the FTC’s current process is ripe for abuse. It also said it is concerned about recusal questions that may arise in the context of an FTC rulemaking. (Answering those questions is increasingly a challenge with the current the leadership at the agency.)

The USCC’s petition called for enhanced procedures to facilitate transparency, including requiring that commissioners:

• Recognize impartiality concerns around prejudgment extend beyond mere financial conflicts of interest;
• Seek and receive written legal guidance of agency ethics officials; and
• Disclose in writing the rational for any decisions to decline to follow the recommendations of agency ethics officials.

Last week, the Metals Service Center Institute submitted a letter to the FTC in support of the USCC’s petition.

That letter, which can be found here, argued, “The FTC has recently embarked on a series of rulemakings and launched cases challenging established law through its internal administrative proceedings. Because the agency occupies a powerful position in the federal government — often operating as a rule maker, prosecutor, and judge — it is important that our members trust the FTC’s decision-making process is free from bias.” The letter continued, “The existence of bias, or even the mere appearance of it, leaves agency decisions vulnerable to judicial challenge. Therefore, recusal rules should be clear and comprehensive.”

The public has until October 26 to comment on the USCC’s request. The FTC will not consider the petition’s merits until after that comment period closes. At that point, it may grant or deny the petition in whole or in part, and it may deem the petition insufficient to warrant commencement of a rulemaking proceeding.

Read more here.