The FTC’s New Unfair Methods of Competition Policy Statement: To What Extent Will the Approach Survive in Court?

Forthcoming Competition Policy International

9 Pages Posted: 12 Dec 2022

See all articles by Koren W. Wong-Ervin

Koren W. Wong-Ervin

Jones Day; George Washington University

Sam Sherman

Axinn Veltrop & Harkrider, LLP

Date Written: November 29, 2022

Abstract

On November 10, 2022, the Federal Trade Commission (FTC) issued a new Policy Statement regarding the scope of unfair methods of competition (UMC) under Section 5 of the FTC Act. The Statement was voted out along party lines with Commissioner Christine Wilson dissenting; it replaces the Obama Administration’s bipartisan 2015 Statement that tethered the analysis of UMC to the rule of reason standard. A key question is to what extent the Statement’s approach is likely to survive in court. While Section 5 clearly reaches beyond the Sherman and Clayton Acts, the issue is how far.

The Article is organized as follows: Section I summarizes the Policy Statement, Section II analyzes the caselaw interpreting the scope of UMC, and Section III identifies some theories of harm that are unlikely to survive in court.

Keywords: Federal Trade Commission, FTC, unfair methods of competition, UMC, antitrust

JEL Classification: K21, K23, L40, L41, L42, L43, L44, L51

Suggested Citation

Wong-Ervin, Koren and Sherman, Sam, The FTC’s New Unfair Methods of Competition Policy Statement: To What Extent Will the Approach Survive in Court? (November 29, 2022). Forthcoming Competition Policy International, Available at SSRN: https://ssrn.com/abstract=4288962 or http://dx.doi.org/10.2139/ssrn.4288962

Koren Wong-Ervin (Contact Author)

Jones Day ( email )

51 Louisiana Avenue, NW
Washington, DC 20001
United States
2028793622 (Phone)

HOME PAGE: http://www.jonesday.com/en

George Washington University ( email )

2121 I Street NW
Washington, DC 20052
United States

Sam Sherman

Axinn Veltrop & Harkrider, LLP

950 F Street, N.W.
Washington, DC
United States

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