100 Years of Uncertainty Are Over. Maybe.
Yesterday, FTC Chairwoman Edith Ramirez announced guidelines on how the agency will regulate companies engaged in "unfair competition," the first addressing the FTC Act's Section 5 in its history.
The guidelines, approved by a bipartisan 4-1 vote, generally say the FTC will consider the following three principles when deciding whether to take action: promoting consumer welfare, whether a method harms competition, and whether the method falls under Sherman or Clayton Act enforcement. BakerHostetler partner Carl Hittinger is the only lawyer to recently successfully defend a Section 5 enforcement action. (The Wall Street Journal notes that while Section 5 authority hasn't been used often recently, it was the basis for significant settlements with Intel and Google.) Carl calls the guidelines "a move in the right direction" but says they lack specificity and "may have opened the floodgates for more, not less, Section 5 litigation."