Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Commissioner Wright Calls for FTC Policy Statement on Unfair Methods of Competition, (Apr 12, 2013)

By Jeffrey May, J.D.

FTC Commissioner Joshua D. Wright told attendees of the American Bar Association Section of Antitrust Law Spring Meeting yesterday that he was hopeful that the Commission will issue a policy statement, articulating what constitutes an unfair method of competition in violation of Section 5 of the FTC Act. He believes the current Commission is up for the task.

Wright said he would kick off the process by offering a proposal, with certain limiting principles. However, he did not offer a timeline.

The commissioner suggested that Section 5 should not be used to evade existing antitrust law. According to Wright, Section 5 enforcement has fallen short of its theoretical promise, because the agency has not offered details on the provision.

Responding to a question about Section 5 enforcement at the Spring Meeting’s Enforcement Roundtable today, FTC Chairwoman Edith Ramirez did not directly address Wright’s proposal to issue a policy statement. However, she suggested that the FTC would continue to develop this area of law through enforcement activity.

Ramirez believes that Section 5 is an important enforcement tool provided by Congress that ought to be used in a careful way. According to Ramirez, the agency has used its Section 5 authority appropriately.

FTC Bureau of Competition Director Reaction

FTC Bureau of Competition Director Richard A. Feinstein earlier Friday morning suggested that the agency has considered issuing guidance on the issue in recent years. In 2008, the FTC held a public workshop to examine the scope of the prohibition of unfair methods of competition under Sec. 5. The workshop considered types of business conduct that might be unfair methods of competition addressable by Section 5. While one of the goals of the workshop might have been to provide guidance, turnover at the Commission has prevented its issuance.

"The devil is in the details", said Feinstein. "The challenge for the agency is reaching a consensus on guidance that is worth providing."

News: Antitrust FederalTradeCommissionNews