Commissioner Wright Moves to Advance Discussion on FTC Act Section 5

MurinoFeatured Expert Column

Andrea Agathoklis Murino, Wilson Sonsini Goodrich & Rosati*

Still just a few months into his tenure, Federal Trade Commissioner Joshua Wright made good on his early promise to move Section 5 of the Federal Trade Commission Act into the public dialogue. N1  On June 19, 2013, Wright released a “Proposed Policy Statement Regarding Unfair Methods of Competition Under Section 5 of the Federal Trade Commission Act,” together with an accompanying explanatory speech.  Some two months after announcing his intention (about which I wrote here), the proposal calls for the FTC to “recast its unfair methods of competition authority with an eye toward regulatory humility in order to effectively target plainly anticompetitive conduct” by clarifying the standards and limits the FTC will employ in the context of Section 5.  Wright’s call to arms is necessary, he says, because the failure to articulate clear standards by which Section 5 will be prosecuted creates uncertainty for the business community and consumers, and risks the Commission’s credibility as an expert body and future steward of Section 5.

Importantly, Wright’s proposal is not merely an intellectual think piece.  Rather, Wright provides for a specific definition of conduct that will violate Section 5, as well as concrete examples.  There is no doubt in his mind (or in the mind of this observer), that Section 5 was intended to condemn conduct beyond that which the Sherman or Clayton Acts capture.  But he finds that without a precise definition, the Commission’s ability to consistently apply Section 5, and the ability of businesses and consumers to meaningfully predict whether their conduct could be found violative of Section 5, is virtually impossible.  Thus, he proposes defining “an unfair method of competition [as] an act or practice that (1) harms or is likely to harm competition significantly and (2) lacks cognizable efficiencies.”  Continue reading “Commissioner Wright Moves to Advance Discussion on FTC Act Section 5”

This Morning’s Supreme Court Developments and Some Resources

supreme courtThe U.S. Supreme Court reconvened this morning for the first of what appears to be three days of issuing opinions this week. Five opinions were issued today, with six remaining. The next opinion day will be tomorrow, beginning at 10:00 a.m.

Tomorrow at 1:00 p.m., WLF will be holding its 28th annual End of the Supreme Court Term Media Briefing. Moderated by The Hon. Dick Thornburgh will be a panel of appellate experts featuring Neal Katyal, Ashley Parrish, and Eric Grannon.  You can either attend in person at 2009 Massachusetts Avenue or view it live online.  Free registration required for online viewing at

This morning, the Court issued a 5-4 opinion in Mutual Pharmaceutical v. Bartlett, a case in which WLF filed an amicus brief in support of the Petitioner’s arguments that federal law preempts state-law design-defect lawsuits against generic drug manufacturers.

Also, the Court granted review in an important case involving the Clean Air Act, U.S. Environmental Protection Agency v. EME Homer City Generation WLF has published two legal policy papers on this case, one prior to the ruling of the U.S. Court of Appeals for the D.C. Circuit, and one after the court ruled:

Finally, the Court asked for the views of the Solicitor General of the United States in an case appealed from the U.S. Court of Appeals for the Third Circuit, Akami Technologies v. Limelight. The en banc panel decision set a new standard for proving induced patent infringement. In a March 12 Legal Pulse post, our Featured Expert Columnist on patents, Beth Shaw, wrote about a more recent Federal Circuit ruling which relied upon Akami, Move, Inc. v. Real Estate Alliance Ltd. (REAL).