Marina Lao is Professor of Law at Seton Hall University School of Law
FTC Commissioner Josh Wright’s recent issuance of a proposed policy statement on Section 5 of the FTC Act has reignited the debate on the appropriate scope of the agency’s authority to prosecute “unfair methods of competition” as standalone Section 5 violations. While the Supreme Court has held, consistent with clear congressional intent, that the FTC’s authority under Section 5 extends to conduct that is well beyond the reach of the Sherman and Clayton Acts, its last decision on the issue (S&H) is over four decades old. Given that antitrust jurisprudence has changed dramatically since, and all three subsequent circuit court decisions (Boise Cascade, OAG, Ethyl) have gone against the FTC, it is questionable whether today’s Supreme Court would give as expansive a reading to the Commission’s enforcement discretion. In any event, it is unlikely that the agency would attempt to exercise its full enforcement authority under the elusive terms in the old case law. Under the circumstances, if the FTC intends to continue to invoke the section to bring standalone cases—and I believe it should–it would be helpful to the antitrust community for the agency to develop standards and to articulate an analytical framework for its application. Commissioner Wright’s proposed policy statement, and Commissioner Maureen Ohlhausen’s comments on it, are invaluable in re-starting the discussion, which I hope will result in guidelines from the Commission at some point.
Under Commissioner Wright’s proposal, an act or practice must satisfy a two-prong test before the Commission may challenge it as an unfair method of competition: it must harm or is likely to harm competition, and it must not generate cognizable efficiencies. I find the second element somewhat troubling.
The Cognizable Efficiency Screen. Under Commissioner Wright’s proposal, cognizable efficiencies operate as a safe harbor: the FTC would not be able to challenge conduct as an unfair method of competition if any cognizable efficiency exists, no matter how slight the efficiency and how substantial the anticompetitive effects. There is no balancing of the efficiencies against the anticompetitive harm at all, as is called for in the rule of reason under the Sherman Act. Under this interpretation, Section 5 will effectively set a higher, rather than a lower, bar than the Sherman Act, which seems contrary to the common understanding of the relative standards of the relevant laws. Though Commissioner Wright does include some useful limiting principles on what efficiencies would be deemed cognizable (conduct-specific, verifiable, and not derived from anticompetitive reductions in output or service), one can still probably come up with a plausible efficiency for almost any business conduct. If this prong of the test is adopted, the section may prove to be of limited use to the FTC in bringing pure unfair methods of competition cases.
I would prefer a consideration of efficiencies on a sliding scale, as is done in merger analysis. The greater the harm (or likely harm) to competition, and the greater the deviation from “normally acceptable business behavior” (Ethyl), the more efficiencies must be generated to offset the harm and avoid an injunction under Section 5. The lesser the competitive harm, the fewer the efficiencies required.
Commissioner Wright provides three rationales for his bright-line efficiencies screen: it would clearly distinguish between acceptable business behavior and unfair methods of competition thereby providing certainty to businesses; it would allocate the agency’s scarce resources toward targeting conduct that is most likely to harm consumers; and it would avoid deterrence of welfare-enhancing conduct. In my view, none of the three rationales is entirely persuasive.
Of course, a bright-line safe harbor always provides more certainty to a firm than a standard that requires balancing, but there is nothing in the nature of Section 5 enforcement that calls for this degree of certainty. Remedies for violations of Section 5 are typically limited to injunctions; the FTC does not recover treble damages. Moreover, the FTC Act cannot be enforced by private parties. Even if private plaintiffs attempt to build a class-action under the Sherman Act based on a Section 5 adjudication, a finding for the FTC in the ALJ proceeding is not given prima facie effect in the private lawsuit. Moreover, when the FTC is relying on Section 5 to prohibit conduct outside of the Sherman Act, its findings on fully litigated issues have no preclusive effect whatsoever on the same issues in any follow-on Sherman Act litigation that private parties may attempt to bring. Therefore, enforcement of pure Section 5 cases does not inflict the kinds of burdens on defendants that are associated with Department of Justice prosecutions under the Sherman Act, for which a higher degree of certainty for businesses may be justified given the collateral consequences. In the context of Section 5 enforcement, which results only in an injunction, it is not clear why a firm is entitled to know with absolute certainty that, no matter how harmful its conduct may be to consumers, it would be acceptable if it has any efficiencies at all.
To the extent that an FTC adjudication carries no unusual consequences for the firm, relative to other litigation, requiring a balancing of the conduct’s efficiencies against its anticompetitive harms does not subject a firm to an intolerable amount of uncertainty. Even in those commercial settings in which businesses are usually governed by very specific rules, generalized standards do exist. For example, though the Uniform Commercial Code (covering a wide variety of commercial transactions) consists primarily of very specific rules, it also includes a number of well-accepted overarching fairness-based provisions, such as the requirements of good faith and fair dealing, the doctrine of unconscionability, and standards based on commercial course of dealing and trade usage. These benchmarks clearly provide a less predictable standard to distinguish between permissible and impermissible conduct than the “uncertain” standard of a rule-of-reason balancing of efficiencies and harms.
As to the second rationale–that an efficiencies screen would focus the FTC’s resources on conduct most likely to harm consumers–I question the premise that anticompetitive conduct with some efficiencies is necessarily less harmful than conduct with no efficiencies. Consider the following two examples: First, assume, as in Commissioner Wright’s Example 6, that Firm A makes an ex ante commitment on licensing to an SSO as a condition for the adoption of its IP as part of the standard; Firm A later sells its patent to Firm B which announces that it will no longer license under those terms. Assume further that Firm B is able to show some efficiency gain from its breach of its predecessor’s commitment, but the consumer harm from the breach may be substantial. (Reneging on Firm A’s commitment undermines the integrity of the standard-setting process, which could reduce the incentives to participate in the process or to implement the standard because of concerns of patent hold-ups, and ultimately affect consumers who would lose some of the benefits of interoperability which comes from standard setting.) Under the proposed efficiency screen, the FTC cannot challenge the conduct, regardless of the magnitude and nature of the consumer harm.
Second, assume, as in Commissioner Wright’s Example 2, that Firm A invites Firm B to fix prices, but Firm B declines. Assume further that Firms A and B operate in an industry that has a competitive culture with no history of collusion. Thus, while the invitation to collude meets the harm to competition element of the test, the risk of competitive harm may be relatively small. Though the invitation to collude has no efficiencies, whereas Firm B’s breach in the preceding example is found to have some efficiencies, the conduct in the preceding example is likely to cause more consumer harm than the invitation to collude under my facts.
Rather than set a categorical rule which allows the FTC to only challenge competitively harmful conduct with zero efficiencies, why not allow the FTC to make a judgment based on the evidence of harms and efficiencies, if any, that is available?
As for the third rationale, while the need to avoid false positives in ambiguous situations is an important consideration, so too is the need to avoid false negatives. As I’ve suggested earlier, the social cost of a false positive is much smaller in a pure Section 5 case than in a Sherman Act action. There is no threat of treble damages, or of automatic follow-on class action suits (that usually follow a successful Department of Justice antitrust action) for which the liability finding in the DOJ action would have a prima facie effect. Even if a practice is erroneously identified as an unfair method of competition under Section 5—e.g., a delivered pricing term that, though anticompetitive, had efficiencies that were insufficiently recognized and, thus, wrongly enjoined–the cost of the false positive would be that the market may be deprived of the enjoined practice, and firms may have to look to an alternative practice. But that is probably not a major social cost as firms are generally adept at finding substitutes.
Conduct Must Harm Competition:
Anticompetitive Effect as Definition of Harm to Competition. I agree with Commissioner Wright that conduct challenged under Section 5 must have an anticompetitive effect; that is, “it must harm the competitive process and thereby harm consumers,” (Microsoft); harm to competitors alone will not suffice. One difficulty lies in defining harm to the “competitive process,” which is susceptible to different interpretations. To me, injury to the competitive process is different than having an effect on price or output, or even diminished quality. It is less measurable, and the ultimate effect on consumers less obvious. What would be considered indicia of harm to the competitive process and what would not? Today, there are many markets with minimal or no price competition, or where firms compete primarily through creativity or product development. In these types of markets, a price and output measure would be inappropriate; perhaps any forthcoming Guidelines could provide more guidance in this regard.
Anticompetitive Effect/Causation. Causation is often intertwined with the concept of anticompetitive effect. In deciding section 2 cases, courts have sometimes held that there is no anticompetitive effect unless the plaintiff can demonstrate that, absent the defendant’s conduct, the “bad” market situation would not have occurred. For example, assume that a firm deceptively fails to disclose its patents in technologies to an SSO and the technologies were subsequently included by the SSO in industry standards. However, there was an insufficient showing that, but for the firm’s deception, the SSO would not have included the technologies or would have imposed limits on the patent owner’s licensing fees as a condition for inclusion. In that situation, courts have held that anticompetitive effect was not shown under Section 2 of the Sherman Act (Rambus). Even assuming that this restrictive analysis of effect/causation is required under Section 2, though I don’t believe it is, it would seem appropriate to relax this requirement in a pure Section 5 case for the reasons that I have discussed: the absence of collateral impact of a Section 5 violation and the limited remedies that the FTC may seek. It should be sufficient in this situation to show that the deceptive failure to disclose to the SSO the patents underlying the technology under consideration undermined and harmed the standard-setting processes. And it should be unnecessary for the FTC to demonstrate that the firm’s deception enabled it to either acquire a monopoly or to avoid the imposition of patent licensing fee limits by the SSO.
Examples of Conduct that is Likely to Harm Competition. I like both broad categories of conduct that Commissioner Wright described as likely to harm competition under Section 5: invitations to collude; and incipient Section 2 violations—conduct “to acquire market power that does not yet arise to the level of monopoly power” required under Section 2.
With respect to the category of incipient Section 2 violations, I would prefer a slightly broader reach to cover situations where a firm with monopoly power in one market uses that power in a second (complementary or collateral) market and causes considerable harm in the collateral market; however, the firm is unlikely to attain a monopoly in the second market but merely seeks to raise its rivals’ costs. This claim would clearly not constitute a Section 2 violation today. I believe that it could fit under Commissioner Wright’s second broad category of conduct likely to harm competition, provided that there is good evidence that competitive harm in the collateral market is likely.
Parallel exclusion, described by Professors Scott Hemphill and Tim Wu in a recent article, could constitute an additional broad category of conduct that could be appropriately addressed under Section 5. As Professors Hemphill and Wu have explained, the economic effects of parallel exclusion by oligopolists are quite similar to that of exclusion by a monopolist. Yet, neither section 1 nor section 2 of the Sherman Act can reach that conduct: the agreement element is absent, precluding a section 1 violation; and each firm does not have the requisite market share to meet the monopoly power requirement of section 2 though they collectively share a monopoly, thus precluding a section 2 violation.