Antitrust Law Daily Wrap Up, TOP STORY: FTC increases some civil penalties based on inflation, (Mar 6, 2014)

By Jeffrey May, J.D.

Today, the FTC announced that its is increasing some of the civil monetary penalties under its jurisdiction to reflect increases in inflation. The last time the Commission adjusted civil penalty amounts was in 2009. The adjustments are not discretionary.

A notice of the final amendment to 16 CFR § 1.98, which lists the civil penalty amounts, will soon be published in the Federal Register, and the increases will take effect 30 days after the publication.

The civil penalties impacted include penalties for violations of certain record keeping requirements under various labeling acts and for filing deficiencies with respect to Section 5 of the Webb-Pomerene (Export Trade) Act. These penalties were last adjusted in 1996 and were increased from $110 to $210.

The agency also increased the penalties for violations of cease-and-desist orders issued under Section 11(l) of the Clayton Act, enjoining Clayton Act violations pursuant to Clayton Act section 11(b). These penalties were last increased in 2009 and will be increased now from $7,500 to $8,500.

There were also some adjustments for certain violations of the Energy Policy and Conservation Act, the Medicare Prescription Drug Improvement and Modernization Act of 2003, and the Independence and Security Act of 2007.

There were no adjustments of civil penalties for violations of Hart-Scott-Rodino Act reporting requirements under Clayton Act sections 7A(g)(1) or of judicially ordered civil penalties for violations of cease and desist orders or trade regulation rules under FTC Act sections 5(l) and 5(m)(1)(A)-(B). These civil penalties are greater than $10,000, and because increases in civil penalties of greater than $10,000 and less than or equal to $100,000 must be in $5,000 increments, the increase in the Consumer Price Index between June 2009 and June 2013 was not high enough to round up any adjustment to $5,000.

The latest increases are as follows:

• Section 11(l) of the Clayton Act, 15 U.S.C. 21(l) (violations of cease and desist orders issued under Clayton Act section 11(b))—from $7,500 to $8,500;

• Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file reports required by FTC Act)—from $110 to $210;

• Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 65 (failure to file required business information with the Commission)—from $110 to $210;

• Section 6(b) of the Wool Products Labeling Act, 15 U.SC. 68d(b) (failure to maintain proper records of fiber content)—from $110 to $210;

• Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 69a(e) (failure to maintain records)—from $110 to $210;

• Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 69f(d)(2) (failure to maintain records)—from $110 to $210;

• Section 333(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6303(a) (FTC enforcement of knowing violations)—from $110 to $210;

• Section 525(a) of the Energy Policy and Conservation Act, 42 U.S.C. 6395(a) (recycled oil labeling violations)—from $7,500 to $8,500;

• Section 1115(a) of the Medicare Prescription Drug Improvement and Modernization Act of 2003, Pub. L. No. 108-173, 21 U.S.C. 355 note (failure to comply with filing requirements)—from $11,000 to $12,100; and

• Section 814(a) of the Energy Independence and Security Act of 2007, 42 U.S.C. 17304 (violations of prohibitions on market manipulation and provision of false information to federal agencies)—from $1 million to $1.1 million.

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