Antitrust Matters — April 2014: state aid; cartel facilitators; Belgium’s Competition Authority; exercising patent rights; and more

By Carl Hittinger

Welcome to the second issue of our global competition and antitrust law newsletter Antitrust Matters. The importance and shifting nature of antitrust problems facing companies and individuals is by its nature a work in progress. There are always hot topics on the agendas of the enforcement agencies and at play in the courts. A significant example: nearly 100 years after Congress passed the Federal Trade Commission Act (FTC Act), the intent and meaning of one of its key provisions remains largely unsettled. In section 5 of the FTC Act, Congress prohibited ‘unfair methods of competition’ but declined to elaborate further. The FTC, for its part, has never issued any clear official guidance on its views of the provision. This ill-defined proscription is a potential challenge for modern businesses — and their legal counsel — when advising on the boundary between legal and illegal conduct. Specifically, if section 5 proscribes conduct that is permissible under the US Sherman Antitrust Act, exactly how far does it reach?

Aside from consumer protection actions for fraudulent and deceptive practices, the FTC has tried to apply section 5 beyond the boundaries of the primary antitrust statutes. More recently, there have been increasing calls to go further in that direction. FTC commissioners, and even members of Congress, are now publically debating what the FTC’s approach should be to this controversial bit of legislation…

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