Putting the “mod” in order modification

Earlier this year, Toys R Us asked the Commission to reopen and modify its order based on changes in the market.

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Thursday, December 1, 2022

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Earlier this year, Toys R Us asked the Commission to reopen and modify its order based on changes in the market.
Under the FTC Act, a company subject to an FTC order can petition to have the order reopened and modified based on changes that have, over time, eliminated the need for the order.
If the respondent shows that
a significant change in law or fact makes the order unnecessary, inequitable, or harmful to competition, the Commission will reopen to determine whether the requested modification is warranted.
Conditions that existed at the time the order was entered will not justify modification.
Changes in Law
Changes in law can also warrant an order modification.
Modification in the Public Interest
Even if changed conditions would not require it to reopen an order, the Commission may determine that it is in the public interest to do so.
Here too, the party under order must make an initial showing that modification would serve the public interest, for instance, by demonstrating that the order is impeding effective competition.
For example, although changed facts were not sufficient to warrant modification of an order requiring the divestiture of supermarkets, the Commission allowed respondents to divest an alternate supermarket in the same market.