FTC Commissioner Joshua Wright gets his competiton enforcement guidelines
Today, for the first time in its 100-year history, the FTC issued enforcement guidelines for cases brought by the agency under the Unfair Methods of Competition (“UMC”) provisions of Section 5 of the FTC Act. The Statement of Enforcement Principles represents a significant victory for Commissioner Joshua Wright, who has been a tireless advocate for ... FTC Commissioner Joshua Wright gets his competiton enforcement guidelines
Commissioner Wright Rightly Calls the Question on Section 5 Guidance
Anybody who has spent much time with children knows how squishy a concept “unfairness” can be. One can hear the exchange, “He’s not being fair!” “No, she’s not!,” only so many times before coming to understand that unfairness is largely in the eye of the beholder. Perhaps it’s unfortunate, then, that Congress chose a century ... Commissioner Wright Rightly Calls the Question on Section 5 Guidance
Commissioner Wright’s Call for Section 5 Guidance Getting Attention on Capitol Hill
Late this summer, TOTM hosted a blog symposium on potential guidelines for the Federal Trade Commission’s exercise of its “unfair methods of competition” authority under Section 5 of the FTC Act. Commissioner Josh Wright inspired the symposium by proposing a set of enforcement guidelines for the Commission. Shortly thereafter, Commissioner Maureen Ohlhausen proposed her own guidelines, which were largely consistent with ... Commissioner Wright’s Call for Section 5 Guidance Getting Attention on Capitol Hill
Commissioner Wright Responds to Section 5 Symposium
I’d like to thank Geoff and Thom for organizing this symposium and creating a forum for an open and frank exchange of ideas about the FTC’s unfair methods of competition authority under Section 5. In offering my own views in a concrete proposed Policy Statement and speech earlier this summer, I hoped to encourage just ... Commissioner Wright Responds to Section 5 Symposium
Tad Lipsky on Lessons From the Section 2 Context
The FTC’s struggle to provide guidance for its enforcement of Section 5’s Unfair Methods of Competition (UMC) clause (or not – some oppose the provision of forward guidance by the agency, much as one occasionally heard opposition to the concept of merger guidelines in 1968 and again in 1982) could evoke a much broader long-run ... Tad Lipsky on Lessons From the Section 2 Context
Paul Denis on Implementing a Policy Statement on UMC
Deterrence ought to be an important objective of enforcement policy. Some might argue it should be THE objective. But it is difficult to know what is being deterred by a law if the agency enforcing the law cannot or will not explain its boundaries. Commissioner Wright’s call for a policy statement on the scope of ... Paul Denis on Implementing a Policy Statement on UMC
David Balto on Some Quick Observations on the Drive for UMC Policy Guidelines
I appreciate the opportunity to provide comments on the current Section 5 discussion and add a few modest thoughts about the very thoughtful speeches of Commissioners Wright and Ohlhausen. I must admit, that as a former FTC Policy dude my mouth salivates at the thought of any new Guidelines. After all what could be more ... David Balto on Some Quick Observations on the Drive for UMC Policy Guidelines
Gus Hurwitz on A Policy Statement Is Not Enough
Administrative law really is a strange beast. My last post explained this a bit, in the context of Chevron. In this post, I want to make this point in another context, explaining how utterly useless a policy statement can be. Our discussion today has focused on what should go into a policy statement – there ... Gus Hurwitz on A Policy Statement Is Not Enough
Geoffrey Manne on the Importance of Sensible Guidance for UMC Enforcement
Josh and Maureen are to be commended for their important contributions to the discussion over the proper scope of the FTC’s Section 5 enforcement authority. I have commented extensively on UMC and Section 5, Josh’s statement, and particularly the problems if UMC enforcement against the use of injunctions to enforce FRAND-encumbered SEPs before (see, for ... Geoffrey Manne on the Importance of Sensible Guidance for UMC Enforcement
David Balto on Economic Evidence and Section 5
One must applaud the efforts of Commissioners Ohlhausen and Wright to begin the dialogue about the proper use of Section 5 as a tool of antitrust enforcement. It was 99 years ago that Congress was debating the creation of the Federal Trade Commission and increased guidance on the Commission’s thinking on Section 5 is in ... David Balto on Economic Evidence and Section 5
Gus Hurwitz on the Application of Chevron to Section 5
Introduction This post is based upon an in-progress article that explores the applicability of Chevron deference to FTC interpretations of Section 5’s proscription of unfair methods of competition. ( I am happy to circulate a draft of this article to anyone who would like to offer substantive feedback.) The article is prompted by the near-universal belief in ... Gus Hurwitz on the Application of Chevron to Section 5
James Cooper on a Sensible Limit to the FTC’s Section 5 Authority
In this posting, I sketch out a sensible limitation to the FTC’s Section 5 authority. This domain should be narrow, focusing only on harmful conduct that but for the application of Section 5 would remain un-remedied. As a threshold matter, the FTC explicitly should renounce its reliance on early Section 5 case law like S&H ... James Cooper on a Sensible Limit to the FTC’s Section 5 Authority
