Wednesday, November 7, 2012
Posted by D. Daniel Sokol
Bob Lande (U Baltimore) and Jonathan Rubin explain How the FTC Could Beat Google.
ABSTRACT:The U.S. Federal Trade Commission is rumored to be deciding whether to bring a “pure Section 5” case against Google as a result of complaints that the company unfairly favors its own offerings over those of its rivals in its search results. But the case will fail miserably at the hands of a reviewing court and the agency will be confined to relatively non-controversial enforcement violations if the FTC fails
to impose upon itself a tightly bounded and constrained legal framework that contains clear limiting principles. The only way a court will allow the FTC to pursue a pure Section 5 theory against Google would be if the agency constrains itself with a coherent principle of competitive harm: the consumer choice framework.
This brief piece only summarizes the underlying issues. Readers interested in more information about the expansive use of Section 5 of
the FTC Act should consult http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1562727. Readers interested in more information about the Consumer Choice approach to competition and consumer protection law should consult http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121459.