It's a Section 5!

Cite this Article
Geoffrey A. Manne, It's a Section 5!, Truth on the Market (December 16, 2009),

The FTC brought its long-awaited case against Intel today.  New York Times report here.  Of course we’ve covered the various antitrust claims against Intel at great length on this blog, and have found all of the theories wanting.

Chairman Leibowitz’ statement is here.  Most notable at first glance is that this is being brought primarily as a Section 5 case.  Which makes sense–the FTC probably couldn’t win a case under current Section 2 law, and given Section 5’s remarkable lack of definition or limitation, it presents a far better lever.

I was glad to see Commissioner Rosch in his concurring statement arguing for some limits to Section 5–although I’m confident he and I would disagree vehemently about where those limits lie.

Should be interesting . . .