The FTC's Procedural Advantage in Discovering Concerted Action
7 Pages Posted: 13 Feb 2009
Scholars have long argued that Section 5 of the Federal Trade Commission Act can or should be interpreted to reach more conduct than Section 1 of Sherman Act - whether, in other words, there are gaps in the coverage of Section 1 that allow certain forms of anticompetitive conduct that Section 5 should condemn. Perhaps the most important issue in the interpretation of Section 1 concerns how courts should distinguish conscious parallelism from unlawful concerted action. In this paper, I argue that there is no substantive gap between the two antitrust statutes on this issue-both statutes prohibit (and permit) the same conduct. There may, however, be a procedural gap. Particularly after the Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly, the FTC has an advantage over private plaintiffs in the procedures at its disposal for discovering unlawful concerted action.
Keywords: antitrust, FTC, Sherman Act, concerted action, procedure
JEL Classification: L13, K21, K42
Suggested Citation: Suggested Citation