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.
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 [1]
- Dan Crane, Michigan Law [1]
- Thom Lambert, Missouri Law [1]
- Tim Wu, Columbia Law [1]
- Terry Calvani & Angela Diveley, Freshfields [1]
- Marina Lao, Seton Hall Law [1]
- James Cooper, GMU Law & Economics Center [1] [2]
- Gus Hurwitz, Nebraska Law [1] [2]
- David Balto, Law Offices of David Balto [1] [2]
- Geoffrey Manne, Lewis & Clark Law/ICLE [1]
- Paul Denis, Dechert [1]
- Tad Lipsky, Latham & Watkins [1]
- Josh Wright, FTC [1]
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
Joe Sims is a Partner at Jones Day 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 ... Joe Sims on First Principles of Section 5 Authority
Dan Crane on Section 5 and Principles of Self-Restraint
Dan Crane is Sr. Professor of Law and Associate Dean for Faculty and Research at the University of Michigan Law School 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 ... 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?
Thom Lambert is Wall Family Foundation Chair in Corporate Law & Governance and Professor of Law at University of Missouri School of Law 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 ... 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
Tim Wu is Isidor and Seville Sulzbacher Professor of Law at Columbia Law School 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 ... 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
Terry Calvani is a former FTC Commissioner and Member of the Governing Board of the of the Competition Authority of Ireland. He is currently Of Counsel at Freshfields Bruckhaus Deringer. Angela Diveley is an Associate at Freshfields Bruckhaus Deringer. We welcome Commissioner Wright’s contribution in making the important point that the Commission’s unfair methods of competition (UMC) ... 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
Marina Lao is Professor of Law at Seton Hall University School of Law 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 ... 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
James Cooper is Director, Research and Policy at the Law & Economics Center at George Mason University School of Law 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 ... 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
James Cooper is Director, Research and Policy at the Law & Economics Center at George Mason University School of Law 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 ... James Cooper on a Sensible Limit to the FTC’s Section 5 Authority
Gus Hurwitz on the Application of Chevron to Section 5
Gus Hurwitz is Assistant Professor of Law at University of Nebraska College of Law 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 ... Gus Hurwitz on the Application of Chevron to Section 5
David Balto on Economic Evidence and Section 5
David Balto is a Public Interest Attorney at the Law Offices of David Balto 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 ... David Balto on Economic Evidence and Section 5
Geoffrey Manne on the Importance of Sensible Guidance for UMC Enforcement
Geoffrey Manne is Lecturer in Law at Lewis & Clark Law School and Executive Director of the International Center for Law & Economics 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 ... Geoffrey Manne on the Importance of Sensible Guidance for UMC Enforcement
Gus Hurwitz on A Policy Statement Is Not Enough
Gus Hurwitz is Assistant Professor of Law at University of Nebraska College of Law 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 ... Gus Hurwitz on A Policy Statement Is Not Enough
David Balto on Some Quick Observations on the Drive for UMC Policy Guidelines
David Balto is a Public Interest Attorney at the Law Offices of David Balto 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 ... David Balto on Some Quick Observations on the Drive for UMC Policy Guidelines
Paul Denis on Implementing a Policy Statement on UMC
Paul Denis is a partner at Dechert LLP and Deputy Chair of the Firm’s Global Litigation Practice. His views do not necessarily reflect those of his firm or its clients. 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 ... Paul Denis on Implementing a Policy Statement on UMC
Tad Lipsky on Lessons From the Section 2 Context
Tad Lipsky is a partner in the law firm of Latham & Watkins LLP. 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 ... Tad Lipsky on Lessons From the Section 2 Context
Commissioner Wright Responds to Section 5 Symposium
Joshua Wright is a Commissioner at the Federal Trade Commission 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 ... 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