Partner Claudia Higgins Discusses FTC Use of Section 5 in The Deal

The Deal reports on the year in antitrust regulation, with a focus on how Edith Ramirez has handled competition policy since becoming chair of the Federal Trade Commission (FTC) in March 2013. One issue of note is the agency’s use of Section 5 of the FTC Act, which some practitioners argue provides the FTC with more authority to fight unfair competition practices than is outlined in traditional antitrust laws. The extent of this power was left undefined by Congress when the FTC Act was passed in 1917, but the two Republican FTC Commissioners have recently proposed that guidelines should be drafted to provide companies with better information about when the Commission would use Section 5. FTC Chairwoman Ramirez has resisted the pressure to draft any such guidelines, because doing so could hinder the agency’s ability to address unfair methods of competition.

According to Kaye Scholer Antitrust Partner Claudia Higgins, who formerly served as an Assistant Director at the FTC, "Both Ramirez and [Democratic colleague Julie] Brill have made clear they don't wish to put too much in writing on Section 5 because they believe the FTC was created to go after consumer harm that was not defined under antitrust law.” She adds, "Why would they wish to put a leash on the agency? Businesses will find ways to get around whatever rules the agency would create."