On November 10, the Federal Trade Commission (FTC) released an aggressive new Policy Statement outlining the current FTC’s view on what constitutes “unfair methods of competition in or affecting commerce” under Section 5 of the FTC Act. Section 5 of the FTC Act covers conduct that violates other federal antitrust laws but also other methods of unfair competition. How broadly that “penumbra” of Section 5 should be interpreted has been the subject of debate for years. Consistent with her stated intent to increase broadly the reach of the antitrust laws, FTC Chair Lina Khan has used the Policy Statement to advocate for an exceptionally aggressive view of the conduct that the FTC may challenge under its antitrust authority, eschewing economics-based analysis for conduct that the Commission believes is coercive, exploitative, or abusive. The Statement also dismisses past litigation setbacks where the FTC has asserted Section 5 authority but has been rebuffed by the courts, explaining that even when courts find against the agency on factual grounds, they have still generally affirmed the FTC’s broad and robust authority under Section 5.
FTC Commissioner Christine Wilson issued a detailed and scathing critique of the Policy Statement, citing the legal and policy problems she believes the Statement causes.