TOTM Blog Symposium Thursday, Aug. 1: Regulating the Regulators–Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority

Thom Lambert —  26 July 2013

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 unfair methods of competition (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.

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.

Last month, FTC Commissioner Josh Wright began a much-needed conversation on the matter by issuing a proposed policy statement to attempt to provide some meaningful limits to the FTC’s UMC authority.  And just yesterday, Commissioner Maureen Ohlhausen delivered a speech setting forth her own views about guidelines for UMC enforcement.

In light of the significance of this issue and the momentum created by Commissioner Wright’s proposed policy statement, Truth on the Market is hosting a blog symposium on the scope of the FTC’s UMC authority, Commissioner Wright’s proposed statement, and whether and how the Commission’s authority should be constrained.

We’ve lined up an outstanding and diverse group of scholars and practitioners to participate in the symposium.  They include:

  • David Balto, Law Offices of David Balto
  • Terry Calvani, Freshfields
  • James Cooper, GMU Law & Economics Center
  • Dan Crane, Michigan Law
  • Paul Denis, Dechert
  • Angela Diveley, Freshfields
  • Gus Hurwitz, Nebraska Law
  • Marina Lao, Seton Hall Law
  • Tad Lipsky, Latham & Watkins
  • Joe Sims, Jones Day (tentative)
  • Tim Wu, Columbia Law
  • Thom Lambert, Missouri Law
  • Geoff Manne, Lewis & Clark Law/ICLE

In addition, Commissioner Wright has agreed to offer a responsive post or two.

The symposium will take place next Thursday, August 1.  Posts will appear periodically throughout the morning, and we hope to generate a lively discussion in comments to participants’ posts.

We hope you will join us and add your voice to the comments.

Thom Lambert

Posts

I am a law professor at the University of Missouri Law School. I teach antitrust law, business organizations, and contracts. My scholarship focuses on regulatory theory, with a particular emphasis on antitrust.

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