16 C.F.R. § 3.26

Motions following denial of preliminary injunctive relief

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(a) This section sets forth two procedures by which respondents may obtain consideration of whether continuation of an adjudicative proceeding is in the public interest after a court has denied preliminary injunctive relief in a separate proceeding brought under section 13(b) of the Federal Trade Commission Act, 15 U.S.C. 53(b), in aid of the adjudicative proceeding.

(b) A motion under this section shall be addressed to the Commission and must be filed within 14 days after, but no earlier than:

(1) A district court has denied the Commission's request for a preliminary injunction, if the Commission has not filed a motion for relief pending appeal with the court of appeals within 7 days following the district court's denial of a preliminary injunction; or

(2) A court of appeals has denied a Commission motion for relief pending appeal.

(c) Withdrawal from adjudication. Following denial of court relief as specified in paragraph (b) of this section, respondents may move that the adjudicative proceeding be withdrawn from adjudication in order to consider whether the public interest warrants further litigation. Although all respondents must consent to the filing of such a motion, a motion under this paragraph (c) may be filed jointly or separately by each of the respondents in the adjudicative proceeding. At the time respondents file a motion under this paragraph (c), respondents must also electronically transmit a copy to complaint counsel. The Secretary shall issue an order withdrawing the matter from adjudication 2 days after such a motion is filed, except that, if complaint counsel file an objection asserting that the conditions of paragraph (b) of this section have not been met, the Commission shall decide the motion within 10 days after the objection is filed.

(d) Consideration on the record of a motion to dismiss. (1) In lieu of a motion to withdraw the adjudicative proceeding from adjudication under paragraph (c) of this section, any respondent may file a motion under this paragraph to dismiss the administrative complaint on the basis that the public interest does not warrant further litigation after a court has denied preliminary injunctive relief to the Commission.

(2) Stay. The filing of a motion under this paragraph (d) shall stay the proceeding until 7 days following the disposition of the motion by the Commission, and all deadlines established by these rules shall be tolled for the amount of time the proceeding is so stayed.

(3) Answer. Complaint counsel may file a response within 7 days after such motion is filed.

(4) Ruling by Commission. Within 30 days after the deadline for filing a response, the Commission shall rule on any motion under this paragraph (d).

(e) Form. Memoranda in support of or in opposition to motions authorized by this section shall not exceed 10,000 words. This word count limitation includes headings, footnotes, and quotations, but does not include the cover, table of contents, table of citations or authorities, glossaries, statements with respect to oral argument, any addendums containing statutes, rules or regulations, any certificates of counsel, proposed form of order, and any attachment required by § 3.45(e).

(f) In camera materials. If any filing includes materials that are subject to confidentiality protections pursuant to an order entered in either the proceeding under section 13(b) or the adjudicative proceeding, such materials shall be treated as in camera materials for purposes of this paragraph and the party shall file 2 versions of the document in accordance with the procedures set forth in § 3.45(e). The time within which complaint counsel may file an objection or response under this section will begin to run upon service of the in camera version of the motion (including any supporting briefs and memoranda).

[80 FR 15161, Mar. 23, 2015]

Notes of Decisions

Cited in 10 cases, 1962–1980 · leading case: Fed. Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374 (1965).

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Fed. Trade Comm'n v. Colgate-Palmolive Co., 380 U.S. 374 (1965). · cites it 2× “), provide: "(b) Any respondent subject to a Commission order may request advice from the Commission as to whether a proposed course of action, if pursued by it, will constitute compliance with such order. The request for advice should be submitted in writing to the Secretary of…”

United States v. St. Regis Paper Co., 355 F.2d 688 (2d Cir. 1966). · cites it 4× “26(a), 16 C.F.R. § 3.26 (a) (Supp. 1965). In addition, those subject to FTC orders can request advice from the Commission as to whether certain conduct will conform to the terms of an order and the Commission “[o]n the basis of facts submitted, as well as other information…”

Vanity Fair Paper Mills, Inc. v. Fed. Trade Comm'n, 311 F.2d 480 (2d Cir. 1962). “26 , and it is scarcely likely that if respondent proposes a method of compliance which the Commission accepts, and thereafter follows it, the Commission will subsequently and without notice claim a violation entailing the civil penalties of 15 U.”

United States v. Reader's Digest Ass'n, Inc., 494 F. Supp. 770 (D. Del. 1980). “See 16 C.F.R. § 3.26 (b) (1964 Supp.). 26 . D.”

Cont'l Baking Co. v. Dixon, 283 F. Supp. 285 (D. Del. 1968). · cites it 2× “Shortly thereafter, the Federal Trade Commission, pursuant to its statutory mandate, 16 C.F.R. § 3.26 (1967) ordered plaintiff to file a report indicating its compliance with the cease and desist order.”

Joseph A. Kaplan & Sons, Inc., a Corp. v. Fed. Trade Comm'n, 347 F.2d 785 (D.C. Cir. 1965). “” To us the Commission further argues that the use of the language of the statute provides “more clarity and precision of meaning * * * than alternative language could be sure to have,” since that language has acquired specific meaning through administrative and judicial…”

Luria Bros. & Co., Inc. v. Fed. Trade Comm'n, 389 F.2d 847 (3rd Cir. 1968). “But petitioners were given ample opportunity to object to this provision when they appealed to the Commission.”

Heavenly Creations, Inc. v. Fed. Trade Comm'n, 339 F.2d 7 (2d Cir. 1964). “*10 1962), applies a fortiori in the light of the salutary provision for preliminary advice on compliance added in the 1963 revision of the Commission’s Rules of Practice, 16 C.F.R. § 3.26 (b) (Supp. 1964). The petitions to review are denied; the Commission may submit a decree.”

William H. Rorer, Inc. v. Fed. Trade Comm'n, 374 F.2d 622 (2d Cir. 1967). “In the context of this case, in which a cost justification was found to be unwarranted, placing this affirmative duty upon Rorer will keep the Commission apprised of potential new problems related to Rorer’s past conduct without further taxing the Commission’s already strained…”

Heavenly Creations, Inc. v. Fed. Trade Comm'n, 339 F.2d 7 (2d Cir. 1965). “1962), applies a fortiori in the light of the salutary provision for preliminary advice on compliance added in the 1963 revision of the Commission's Rules of Practice, 16 C.F.R. 3.26(b) (Supp. 1964). 6 The petitions to review are denied; the Commission may submit a decree.”

— 16 C.F.R. § 3.26(b) — 1 case

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