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Levin College of Law

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Monday, October 14, 2013

Section 5 Guidelines: Josh Wright as the New King of Corinth?

Joe Sims (Jones Day) asks Section 5 Guidelines: Josh Wright as the New King of Corinth?

ABSTRACT: Thus, it was hardly surprising that one of the first things Commissioner Wright did in his new role was to suggest that it was past time for the Commission to put out guidelines on the use of Section 5. That was followed up shortly by his very specific proposal for what such guidelines should say, which is the focus of this symposium. I would bet money that Section 5 guidelines were not initially high on the agenda of Chairwoman Ramirez. Indeed, she has said that no guidelines are necessary, since the cases provide plenty of insight into how Section 5 will be applied. Excuse me, but if you can take the existing "cases" (none of which are litigated results) and from those tell me what Section 5 covers and what it does not, you are a lot smarter than I am. While admittedly that is not the toughest standard to meet, I defy anyone to articulate a true picture of Section 5's reach from this mish-mash of enforcement actions. And even if one could somehow divine some general guidance here, the one thing we know for certain is that there will always be something new that catches attention but looks hard to attack under the Sherman Act.

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