Section 5 Enforcement: Common Law Guidance

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Pete Levitas, Farrell Malone, Jul 24, 2015

The proper scope of the U.S Federal Trade Commission’s Section 5 enforcement authority has been a recurring issue in antitrust enforcement. In recent months there has been renewed attention to the issue of formal guidance on Section 5 enforcement, generated largely by FTC enforcement actions and related statements and speeches by FTC Commissioners. Given the views of the majority of the Commission, however, this most recent spike in attention seems unlikely to lead to any immediate formal written guidance.

Moreover, the discussion to date has mostly been focused on broad statements and general principles that do not yet reach the level of detailed guidance that would be most useful for companies potentially subject to Section 5 enforcement. Although companies and their counsel would welcome additional guidance from the Commission, for the foreseeable future, recent FTC enforcement actions are the best Section 5 “roadmap” available.

 

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