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 principles governing the reach of Section 5 should be. In this essay, I wish to join forces with Commissioners Wright and Olhausen in calling for the promulgation of guidance from the FTC on Section 5 enforcement. I will argue that, like Ulysses, the Commission should bind itself to the mast, not merely to decrease its temptation to heed the Sirens’ call, but, ultimately, to increase the likelihood that its Section 5 decisions will buck the trend of history and survive judicial review.

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