By Bryan Koenig

Law360 (April 20, 2020, 8:16 PM EDT) -- The Federal Trade Commission's antitrust enforcement remains as usual as it can be in unusual times, the head of the agency's competition bureau said in comments made public Monday.

As part of a pre-recorded videocast panel alongside the heads of the agency's economics and consumer protection sections, Bureau of Competition Director Ian R. Conner maintained that FTC antitrust enforcers are operating as close to normal as they can, shifting to electronic filings for merger notifications while continuing to scrutinize potentially anticompetitive conduct during the coronavirus pandemic.

"We're not changing our enforcement priorities or our enforcement standards. So if you want to take advantage of the crisis to try and price fix or fix wage prices, those are the things we will still prosecute. So there's no relaxation of antitrust rules here," Conner said as part of the coronavirus-crisis-tweaked version of this year's spring meeting of the American Bar Association's Antitrust Law Section.

Conner made those particular remarks as he addressed the expedited process announced last month under which the FTC and its antitrust counterparts at the U.S. Department of Justice said they'd review inter-company coordination and other activities aimed at combating the spread of COVID-19. Companies seeking a DOJ Antitrust Division business review letter or FTC advisory opinion for virus-related conduct "addressing public health and safety" will receive a response within seven calendar days of the agencies getting "all necessary information," according to a statement released at the time.

According to Conner, the pandemic has not changed antitrust rules. Instead, he noted that the advisory opinion process — through which companies can seek agency assurances that proposed conduct won't run afoul of antitrust law — existed before the current crisis. The standards by which conduct is reviewed under the process, he said, is not going to be relaxed.

"The advisory opinion process is just going to be expedited for things that likely would have been cleared anyway," Conner said in a panel recorded at the beginning of April.

Antitrust enforcers around the world have scrambled to adapt to a pandemic that as of Monday had infected more than 2.3 million people and killed over 157,000, according to the World Health Organization. In the U.S., the Centers for Disease Control and Prevention put the number at more than 746,000 cases and more than 39,000 deaths.

The virus has had a huge impact on businesses and government agencies alike, and virtually the entire FTC is working. from home. Conner and his fellow bureau directors said on the panel, however, that their work continues.

Competition Bureau staffers are adjusting "remarkably fast," Conner said, noting the quick transition to e-filing that required only a single-day shutdown before merger notifications could again be accepted.

"We've had basically no interruption since that system went into effect. And we've been taking on filings on a regular basis," Conner said.

The process worked so well that the FTC was able in late March to again consider granting transactions early terminations to the normal 30-day waiting period, having initially suspended early terminations earlier in the month.

According to Conner, the competition bureau is working "better than I would have expected."

"We still move our cases forward. We still make our recommendations. We still will bring challenges," he said, asserting that the FTC is "operating as close to business as usual" even though "it is not business as usual."

The new paradigm has implications with how private parties are interacting with FTC staffers, according to Conner and Andrew Smith, the director of the Consumer Protection bureau.

"I think the most important thing is going to be patience and understanding. We are not as responsive as we were previously. Though we're actually still pretty responsive," Conner said.

Unlike before, Conner said, private parties likely can't expect to successfully ask for a phone call in a matter of minutes. Within the FTC itself, Conner said that phone calls between different staffers have "exploded" in frequency and length to make up for the lack of physical proximity, and staffers may be working different hours so they may be responding to emails at more unusual times. If a more immediate response is required, Conner advised private parties to copy more FTC staffers on their emails.

Smith said that opposing counsel of consumer protection probe targets have been "very accommodating" in setting up phone calls. In interacting with outside counsel, he said, the consumer protection bureau is "able to do that almost as effectively as we ever could." He also noted that the bureau recognizes the enormous stressors the pandemic is placing on companies that may be under FTC scrutiny.

"We understand that, and we are accommodating that as able. But we do need to continue the work of the commission," Smith said. That's especially true when the agency suspects ongoing harm to consumers, he said.

Both Smith and Conner maintained that current antitrust and consumer protection laws are up to the task of targeting those who use the pandemic to squeeze out higher prices or bilk customers.

"I would say that certainly our authority to address unfair and deceptive practices — that's very broad authority," Smith said.

The virus-related competition complaints the FTC has received so far, according to Conner, are "kind of run-of-the-mill antitrust," such as collusion and price-fixing, or coordination that doesn't actually address the crisis or isn't "output enhancing."

"As far as the antitrust laws go, we have the tools because we're not seeing new actions that we couldn't prosecute under any of the existing laws," Conner said.

--Additional reporting by Nadia Dreid. Editing by Gemma Horowitz.

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