A Response To Commissioner Wright’s Proposed Policy Statement Regarding Unfair Methods Of Competition

Maurice Stucke (Tennessee) addresses A Response To Commissioner Wright’s Proposed Policy Statement Regarding Unfair Methods Of Competition.

ABSTRACT: Federal Trade Commissioner Joshua Wright recently proposed a new legal standard to evaluate "unfair methods of competition" under Section 5 of the Federal Trade Commission ("FTC") Act, 15 U.S.C. § 45(a) (2012). The FTC must prove that the act or practice (1) harms or is likely to harm competition, significantly and (2) lacks cognizable efficiencies. The FTC currently prosecutes both traditional antitrust offenses and other conduct under Section 5's unfair methods of competition clause. Under Wright's proposal, the FTC would still apply the well-forged antitrust case law to orthodox Sherman and Clayton Act violations, but use his proposed standard for any remaining standalone violations of Section 5. Wright proposes that his standard be applied only to unfair methods of conduct, for which no "well‐forged case law under the traditional federal antitrust laws exists." Where that boundary lies, as this Essay discusses, is a far more difficult question.