One of the consistently thorny issues in U.S. antitrust law is the rather vague boundary of Section 5 of the FTC Act, which concerns non-merger conduct that may not violate the Sherman Act but still constitutes harmful anticompetitive conduct. Recently, Commissioner Joshua Wright, followed by Commissioner Maureen Ohlhausen, issued calls for guidelines that would direct […]

What About Green Stamps? A Comment on the FTC’s Section 5 Authority

Harry First, Sep 16, 2013 Commissioner Joshua Wright has started his tenure as Commissioner by stepping into the long-running debate over the scope of the Commission’s authority. Section 5 of the FTC Act gives the Commission the power to prevent “unfair methods of competition in commerce, and unfair or deceptive acts or practices.” The FTC […]

A Response To Commissioner Wright’s Proposed Policy Statement Regarding Unfair Methods Of Competition

Maurice Stucke, Sep 16, 2013 Federal Trade Commissioner Joshua Wright recently proposed a new legal standard to evaluate “unfair methods of competition” under Section 5 of the Federal Trade Commission (“FTC”) Act, 15 U.S.C. § 45(a) (2012). The FTC must prove that the act or practice (1) harms or is likely to harm competition, significantly and […]

Section 5 of the FTC Act and the Need for Guidelines

Daniel Crane, Sep 16, 2013 FTC Commissioners Wright and Olhausen recently have argued that the FTC should issue a policy statement or guidelines regarding enforcement of Section 5 of the FTC Act to create liability for unfair methods of competition beyond the Sherman Act’s reaches. I have previously articulated my own views on what the substantive […]

A Solution in Search of a Problem

A. Douglas Melamed, Sep 16, 2013 The fundamental problem with the “unfair methods of competition” prong of Section 5 is that it is hopelessly vague. The language is almost meaningless, and there will never be a body of case law to give it meaning in the way that the thousands of antitrust cases have given […]

Section 5 Guidelines: Fixing a Problem that Doesn’t Exist?

Sharis Pozen, Anne Six, Sep 16, 2013 When Congress enacted the Federal Trade Commission Act in 1914, almost 25 years after enacting the Sherman Act, it purposely created a different statute with different goals and different parameters. As many have pointed out in the ongoing Section 5 debate, the use of the “elusive” term “unfair methods […]

Guiding Section 5: Comments on the Commissioners

Steven Salop, Sep 16, 2013 FTC Commissioners Joshua Wright and Maureen Ohlhausen have proposed that the Commission adopt Guidelines for the application of Section 5 to Unfair Methods of Competition (“UMC”). These UMC Guidelines would apply to non-merger conduct that may not violate the Sherman Act. Agency Guidelines can provide a useful role in defining the […]

Section 5 Guidelines: Josh Wright as the New King of Corinth?

Joe Sims, Sep 16, 2013 Thus, it was hardly surprising that one of the first things Commissioner Wright did in his new role was to suggest that it was past time for the Commission to put out guidelines on the use of Section 5. That was followed up shortly by his very specific proposal for […]