Is the antitrust enforcement authority of the Federal Trade Commission, proceeding under the FTC Act, broader than that of other litigants – whether private plaintiffs or the Department of Justice – proceeding under the Sherman Act? Section 5 of the FTC Act prohibits “unfair methods of competition in or affecting commerce” – language which some have interpreted as equivalent in scope with parallel provisions of the Sherman Act. As recent Supreme Court decisions have appeared to narrow the scope of the Sherman Act, however, the FTC has moved in the opposite direction. In addition to the Valassis and U-Haul “invitation to collude” cases (a cause of action not recognized under the Sherman Act), the FTC has pursued so-called “Sherman Act plus” antitrust actions against N-Data and Intel. Is this seeming divergence between FTC Act and Sherman Act enforcement authority legally defensible? What are its broader policy implications?
The Corporations, Securities & Antitrust Practice Group hosted this panel on "'New' Antitrust Enforcement Authority under the FTC Act" on Thursday, November 14, during the 2013 National Lawyers Convention.
Corporations: 'New' Antitrust Enforcement Authority under the FTC Act: Defensible Statutory Interpretation or Plumbing the Penumbras?
12:00 p.m. – 2:00 p.m.
- Mr. David A. Balto, David A. Balto Law Offices; Program Fellow, Health Policy Program, New America Foundation
- Mr. Thomas O. Barnett, Partner, Covington & Burling LLP
- Hon. F. Scott Kieff, Commissioner, U.S. International Trade Commission
- Hon. Maureen, K. Ohlhausen, Commissioner, Federal Trade Commission
- Mr. J. Thomas Rosch, Of Counsel, Latham & Watkins LLP
- Moderator: Hon. Stephen F. Williams, United States Court of Appeals, District of Columbia Circuit