Showing posts from December, 2012

Googleopoly Next Moves

I enjoyed this refresher on FTC Act Section 5 which convincingly argues against its use for claims that might otherwise fail under, or just alongside of Sherman Act Section 2. Section 5 gives the Commission power to
"… prevent persons, partnerships, or corporations, except [a list of exceptions defined in other statutes], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce." 15 U.S.C. §45(a)(2) As the post by Manne and Szoka summarizes, the FTC has sought to expand its use of Section 5 under cover of various theories, though recent success has come via consent decrees rather than in the courts. Scholars have debated the expanded use of Section 5 for decades, though little has come in the way of definitive legislative or judicial clarification.* The authors argue that with successful expansion of Section 5 in the courts, "the agency would again threaten to become a second national legislatu…