Antitrust Law Daily Wrap Up, ANTITRUST NEWS: AAI commends FTC on bipartisan Statement of Section 5 Enforcement Principles, (Aug 18, 2015)
Organizations Mentioned:American Antitrust Institute
By Michael Menzhuber, J.D., LL.M.
The American Antitrust Institute (AAI) commended the FTC for its bipartisan Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act, which was released on August 13. The Statement was hailed by AAI President Diana Moss for gaining bipartisan consensus on a set of reasonable enforcement principles in an area that conservative critics have found controversial. AAI’s General Counsel Richard Brunell agreed that there was nothing in the Statement that would limit the sensible use of Section 5 and regarded it as a positive step forward for competition enforcement.
According to the AAI, the Statement reaffirms that Section 5 performs an important gap-filling function to address anticompetitive conduct that is otherwise not easily reachable under the Sherman Act or Clayton Act, such as invitations to collude or standard-setting abuse. Section 5 was always intended to play an important role in addressing anticompetitive conduct in its incipiency because (1) Section 5 encompasses acts or practices that “contravene the spirit of the antitrust laws” and that “if allowed to mature or complete, could violate the Sherman or Clayton Act” and (2) harm takes two forms, to “competition” itself and to the “competitive process.”
The AAI noted that the gap-filling function of Section 5 is particularly important insofar as courts are cutting back on the scope of the Sherman Act due to a mistaken fear that Sherman Act remedies invoked by private parties may excessively deter legitimate conduct, a factor that is inapplicable to Section 5, which has no private right of action.
The AAI also noted that the Statement implicitly recognizes that more specific guidance as to the legality of particular practices can be made on a case-by-case, or common-law, basis just as the courts have been doing under the Sherman Act for 125 years.
News: Antitrust FederalTradeCommissionNews