Stephen Calkins of Wayne State, who formerly served as FTC General Counsel, has pointed out that when the FTC has only two commissioners, two is a quorum for FTC action under the regs:
- 4.14 Conduct of business.
(a) Matters before the Commission for consideration may be resolved either at a meeting under § 4.15 or by written circulation. Any Commissioner may direct that a matter presented for consideration be placed on the agenda of a Commission meeting.
(b) A majority of the members of the Commission in office and not recused from participating in a matter (by virtue of 18 U.S.C. 208 or otherwise) constitutes a quorum for the transaction of business in that matter.
(c) Any Commission action, either at a meeting or by written circulation, may be taken only with the affirmative concurrence of a majority of the participating Commissioners, except where a greater majority is required by statute or rule or where the action is taken pursuant to a valid delegation of authority. No Commissioner may delegate the authority to determine his or her vote in any matter requiring Commission action, but authority to report a Commissioner’s vote on a particular matter resolved either by written circulation, or at a meeting held in the Commissioner’s absence, may be vested in a member of the Commissioner’s staff.
[42 FR 13540, Mar. 11, 1977, as amended at 50 FR 53306, Dec. 31, 1985; 70 FR 53297, Sept. 8, 2005]
Professor Calkins adds, “Chairman Ferguson has publicly said that he is (or was) prevented from acting by the 2-2 split, but as soon as he had a majority they would revisit every filed lawsuit and evaluate whether it should be withdrawn. So what happens if a lawsuit is dropped, 2-0? As for actions taken, I assume that every defendant will claim the complaint was voted out illegally, 2-0. The firings were in direct violation of the statute, deliberately teeing up a Supreme Court case, but a lot of chaos lies between now and then.” Professor Calkins also notes he doesn’t know whether such claims will succeed.
