Symposium
Last updated on Aug 02, 2013
Unfair Methods of Competition Symposium
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.
In This Symposium
TOTM Blog Symposium Thursday, Aug. 1: Regulating the Regulators–Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority
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 ... TOTM Blog Symposium Thursday, Aug. 1: Regulating the Regulators–Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority
Welcome to the TOTM Blog Symposium: Regulating the Regulators–Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority
Regulating the Regulators: Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority August 1, 2013 Truthonthemarket.com Welcome! We’re delighted to kick off our one-day blog symposium on the FTC’s unfair methods of competition (UMC) authority under Section 5 of the FTC Act. Last month, FTC Commissioner Josh Wright began a much-needed conversation on the ... Welcome to the TOTM Blog Symposium: Regulating the Regulators–Guidance for the FTC’s Section 5 Unfair Methods of Competition Authority
Joe Sims on First Principles of Section 5 Authority
I find that discussions on antitrust policy, if they are not to devolve into simple recitations of preferred industrial policy, are most focused when grounded in first principles and, frequently, a little history. So a few words on both with respect to Section 5, starting with the history. The FTC Act, in addition to being ... Joe Sims on First Principles of Section 5 Authority
Dan Crane on Section 5 and Principles of Self-Restraint
I’m delighted that Josh and Maureen have launched a concerted effort to have the FTC articulate clear principles for Section 5 enforcement. My own views on the proper scope of Section 5 are articulated in my book The Institutional Structure of Antitrust Enforcement. I won’t attempt a comprehensive regurgitation here, but just offer three quick ... Dan Crane on Section 5 and Principles of Self-Restraint
Thom Lambert on Guidelines for the FTC’s UMC Authority: What’s Clear and What’s Not?
In the last few weeks, two members of the FTC—Commissioners Josh Wright and Maureen Ohlhausen—have staked largely consistent positions on guidelines for implementation of the Commission’s “unfair methods of competition” (UMC) authority. Their statements make two points that are, in my opinion, no-brainers. Where the statements conflict, they raise an issue worthy of significant contemplation. ... Thom Lambert on Guidelines for the FTC’s UMC Authority: What’s Clear and What’s Not?
Tim Wu on Section 5 Guidelines Would Make the FTC Stronger and Better
I personally believe that a policy statement on Section 5 would be a very good thing for the Federal Trade Commission, especially over the long run. I think it would strengthen the agency, renew its distinct sense of purpose, and clarify the jobs of the attorneys who enforce the competition laws on a day-to-day basis. ... Tim Wu on Section 5 Guidelines Would Make the FTC Stronger and Better
Terry Calvani and Angela Diveley on Injury to Competition and Efficiencies in Section 5 Claims
We welcome Commissioner Wright’s contribution in making the important point that the Commission’s unfair methods of competition (UMC) jurisdiction under Section 5 of the FTCA should be subject to limiting principles. We make two observations about the policy statement and a more general observation about the FTC in light of its upcoming 100th anniversary. The ... Terry Calvani and Angela Diveley on Injury to Competition and Efficiencies in Section 5 Claims
Marina Lao on the FTC’s Section 5 Unfair Methods of Competition Authority
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 ... Marina Lao on the FTC’s Section 5 Unfair Methods of Competition Authority
James Cooper on the Limits of Section 5’s Scope Beyond the Sherman Act
The FTC has long been on a quest to find the elusive species of conduct that Section 5 alone can tackle. A series of early Supreme Court cases interpreting the FTC Act – the most recent and widely cited of which is more than forty years old (FTC v. Sperry & Hutchinson Co., 405 U.S. ... James Cooper on the Limits of Section 5’s Scope Beyond the Sherman Act
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
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
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
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
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
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
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
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
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
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 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
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