Legal Experts See Supreme Court Ruling Against FTC Looming in Axon

The Supreme Court is likely to rule in favor of Axon in its challenge against administrative law judge proceedings at the FTC in docket 20-15662, a former FTC trial attorney and legal experts said Tuesday (see 2211070049 and 2211040042).

Axon’s claim is unique given the litigative discrepancies between FTC and DOJ enforcement, said Bradley Arant's Henry Su, who served as an FTC trial lawyer during the Obama administration. If Axon had its choice, the claims against the FTC would be heard by a federal court immediately, not held up by review from an FTC administrative law judge and subsequently the commission, said Su during a Federalist Society livestream: “They don’t want to be before some illegitimately appointed administrative law judge.” There’s a clear alternative when a company is subject to DOJ enforcement, he said.

The FTC is a law enforcement agency just like DOJ, and “there really shouldn’t be any procedural distinction between the two of them,” said Su. He spoke in favor of the Standard Merger and Acquisition Reviews Through Equal Rules (Smarter) Act, legislation from Senate Judiciary Committee ranking member Chuck Grassley, R-Iowa, and Senate Antitrust Subcommittee ranking member Mike Lee, R-Utah, which would require the FTC to litigate the merits of contested merger cases in federal court under the Clayton Act, just like DOJ. “Why do we have a different route for parties if they draw the FTC?” Su asked. The bill “would solve a lot of the problems. There’s no reason why the FTC can’t litigate this in federal court. There’s really no compelling reason to go through that administrative process.”

Discussion at oral argument suggests the Supreme Court is leaning in favor of Axon, said Cass & Associates' Ronald Cass: “This is a real issue for real companies that have this problem on their plate. I think that the court will find a way, but I’m interested in seeing exactly what grounds they articulate to distinguish this from the run-of-the-mill cases.”

“I think it’s pretty clear here where most of the justices stand on the juris-statutory question regarding federal courts,” said Ashley Baker, public policy director at the Committee for Justice, which filed in favor of Axon in the case. “I would not be surprised to see it come out in favor of Axon.”

The panelists cited the skepticism during oral argument against the agency from Chief Justice John Roberts and Justices Neil Gorsuch, Clarence Thomas and Samuel Alito. The justices’ questions showed “concern about cutting off access to the courts” and prolonging litigation with the FTC. He noted Axon has spent about $20 million litigating with the agency over the case.

Cass and Su noted Justices Elena Kagan and Ketanji Brown Jackson raised concerns about how a decision in favor of Axon might allow greater interference into agency deliberation. Su noted how Jackson raised concerns about allowing a district judge to more or less manage agency deliberation. “She used the word superintendent a couple of times,” said Su. “On the side favoring the government, there’s that concern. But on the side for Axon, look these are very weighty, constitutional questions.”