A Response to Commissioner Wright's Proposed Policy Statement Regarding Unfair Methods of Competition
CPI Antitrust Chronicle, September 2013
14 Pages Posted: 27 Sep 2013 Last revised: 16 Jan 2014
Date Written: September 24, 2013
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: Suggested Citation