Regulating the Regulators: Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority
August 1, 2013
Last month, FTC Commissioner Josh Wright began a much-needed conversation on the FTC’s UMC authority by issuing a proposed policy statement attempting to provide some meaningful guidance and limits to the FTC’s authority. Meanwhile, last week Commissioner Maureen Ohlhausen offered her own take on the issue, echoing many of Josh’s points and further extending the conversation. Considerable commentary—and even congressional attention—has been directed to the absence of UMC authority limits, the proper scope of that authority, and its significance for the businesses regulated by the Commission.
Section 5 of the FTC Act permits the agency to take enforcement actions against companies that use “unfair or deceptive acts or practices” or that employ “unfair methods of competition.” The Act doesn’t specify what these terms mean, instead leaving that determination to the FTC itself. In the 1980s, under intense pressure from Congress, the Commission established limiting principles for its unfairness and deception authorities. But today, coming up on 100 years since the creation of the FTC, the agency still hasn’t defined the scope of its UMC authority, instead pursuing enforcement actions without any significant judicial, congressional or even self-imposed limits. And in recent years the Commission has seemingly expanded its interpretation of its UMC authority, bringing a string of standalone Section 5 cases (including against Intel, Rambus, N-Data, Google and others), alleging traditional antitrust injury but avoiding the difficulties of pursuing such actions under the Sherman Act (or, in a few cases, bringing separate claims under both Section 5 and Section 2).
We hope this symposium will provide important insights and stand as a useful resource for the ongoing discussion.
We’ve lined up an outstanding and diverse group of scholars and practitioners to participate in the symposium. They are (in order of initial posting):
- Joe Sims, Jones Day 
- Dan Crane, Michigan Law 
- Thom Lambert, Missouri Law 
- Tim Wu, Columbia Law 
- Terry Calvani & Angela Diveley, Freshfields 
- Marina Lao, Seton Hall Law 
- James Cooper, GMU Law & Economics Center  
- Gus Hurwitz, Nebraska Law  
- David Balto, Law Offices of David Balto  
- Geoffrey Manne, Lewis & Clark Law/ICLE 
- Paul Denis, Dechert 
- Tad Lipsky, Latham & Watkins 
- Josh Wright, FTC