A Response to Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods of Competition

CPI Antitrust Chronicle, September 2013

University of Tennessee Legal Studies Research Paper No. 228

14 Pages Posted: 27 Sep 2013 Last revised: 16 Jan 2014

See all articles by Maurice E. Stucke

Maurice E. Stucke

University of Tennessee College of Law; The Konkurrenz Group

Date Written: September 24, 2013

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 Act, 15 U.S.C. 45(a) (2012).

This essay raises several concerns. First, Wright’s proposed legal standard does not go as far as Congress intended. Moreover it conflates unfair methods of competition with acts and practices that significantly harm consumer welfare. A second concern is that the proposed legal standard goes the other direction and permits conduct that is otherwise illegal under the Sherman and Clayton Acts. Third, the proposed standard reduces accuracy, is hard to administer in connection with the traditional antitrust standards, and increases the risk of inconsistent outcomes for behavior outside the well-forged antitrust case law, but within the Sherman and Clayton Acts’ reach.

Keywords: antitrust, competition law, Joshua Wright, section 5, unfair methods of competition, bribery, FCPA, Sherman Act, Clayton Act, price-fixing

JEL Classification: K21, L40, L41, K42

Suggested Citation

Stucke, Maurice E., A Response to Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods of Competition (September 24, 2013). CPI Antitrust Chronicle, September 2013; University of Tennessee Legal Studies Research Paper No. 228. Available at SSRN: https://ssrn.com/abstract=2330670

Maurice E. Stucke (Contact Author)

University of Tennessee College of Law ( email )

1505 W. Cumberland Ave.
Knoxville, TN 37996
United States
865-974-9816 (Phone)

HOME PAGE: http://law.utk.edu/directory/maurice-stucke/

The Konkurrenz Group ( email )

5335 Wisconsin Ave., NW
Suite 440
Washington, DC 20015
United States

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