Is the antitrust enforcement authority of the Federal Trade Commission, proceeding under the FTC Act, broader than that of other litigants – whether private plaintiffs or the Department of Justice – proceeding under the Sherman Act? Section 5 of the FTC Act prohibits “unfair methods of competition in or affecting commerce” – language which some have interpreted as equivalent in scope with parallel provisions of the Sherman Act. As recent Supreme Court decisions have appeared to narrow the scope of the Sherman Act, however, the FTC has moved in the opposite direction. In addition to the Valassis and U-Haul “invitation to collude” cases (a cause of action not recognized under the Sherman Act), the FTC has pursued so-called “Sherman Act plus” antitrust actions against N-Data and Intel. Is this seeming divergence between FTC Act and Sherman Act enforcement authority legally defensible? What are its broader policy implications?
The Corporations, Securities & Antitrust Practice Group hosted this panel on "'New' Antitrust Enforcement Authority under the FTC Act" on Thursday, November 14, during the 2013 National Lawyers Convention.
Corporations: 'New' Antitrust Enforcement Authority under the FTC Act: Defensible Statutory Interpretation or Plumbing the Penumbras?
12:00 p.m. – 2:00 p.m.
Friedrich Hayek once said, “Unfortunately, the popular effect of this scientific advance has been a belief, seemingly shared by many scientists, that the range of our ignorance is steadily diminishing and that we can therefore aim at more comprehensive and deliberate control of all human activities. It is for this reason that those intoxicated by the advance of knowledge so often become the enemies of freedom.” This statement encapsulates a broad wariness of government intervention, even—and perhaps especially—intervention based upon scientific findings, into private enterprise. The problem, as Hayek points out, is that such control mechanisms, however scientifically informed, inevitably lead to unwanted consequences, often stifling the very creativity needed to foster the beneficial spontaneous order of the marketplace. [Read more!]
Attempted synthesis of the rulings of Kentucky’s highest court threatens to go the proverbial “eight ways to Sunday.” For one thing, although Kentucky is not very populous and its Supreme Court sharply limits discretionary review, still literally thousands of opinions have been rendered by the Court and its predecessor, the Kentucky Court of Appeals, which prior to 1975 was the only appellate court in the Commonwealth. Also, great diversity of judicial philosophy among the Court’s members has resulted in sometimes warring opinions that make divergent points resembling the scattershot of a Kentucky dove hunter.
Hon. Paul D. Clement, Partner, Bancroft PLLC; Former Solicitor General of the United States (2004-2008)