ASCOLA Competition Law series
Edited by Paul Nihoul and Tadeusz Skoczny
Chapter 11: The fairness debate in the U.S.
The U.S. Federal Trade Commission (‘FTC’) celebrates its one hundredth anniversary in 2014. This prospect has generated substantial debate over the value of the commission-based administrative process as opposed to the competing court-based process for civil cases initiated by the Department of Justice Antitrust Division (‘DOJ’). In particular, a recently appointed conservative member of the FTC, former law and economics professor Joshua Wright, has been pressing the case that the FTC processes are unfair. Some less conservative observers have written articles supporting this view. I want to begin by discussing what a statistic reflecting 19 consecutive victories for the FTC may or may not mean. I then want to turn to the question of whether it is unfair to have two different agencies that can approach competition cases with different attitudes and procedures. How would one judge whether there is unfairness? Finally, assuming for the moment that there is some degree of unfairness, what justifications might counterbalance the criticisms? I hope that the discussion will be of value to jurisdictions that are considering whether they want a single competition agency or multiple enforcement agencies, and whether administrative procedures are fair. The FTC enforces Section 5 of the FTC Act, which outlaws ‘unfair methods of competition,’ a phrase which is admittedly and intentionally vague. Sometimes it brings cases under both Section 5 and the Sherman Act or the Clayton Act, and sometimes only as standalone Section 5 cases.
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