Speaking at the American Bar Association Antitrust Section\u2019s annual Spring Meeting on Friday, April 12, Henry Liu, Director of the Bureau of Competition at the Federal Trade Commission, said that parties that are under an antitrust investigation by the FTC should assume that the agency is looking not only at whether the conduct being investigated violates the Sherman Act, but also whether the conduct may fall into a \u201cgray zone\u201d and thus be subject to the FTC\u2019s authority to police \u201cunfair methods of competition\u201d under Section 5 of the FTC Act.<\/p>\n
Liu described this \u201cgray zone\u201d as encompassing conduct where, for technical reasons, the existing case law shows that the Sherman Act is a less attractive theory for the agency.\u00a0 Nonetheless, if the FTC determines that the conduct \u201charms the competitive process\u201d through nefarious means such as deception or coercive tactics, bringing a Section 5 claim is a viable option.\u00a0 Enforcement of \u201cgray zone\u201d conduct under Section 5 is consistent with the FTC\u2019s 2022 Policy Statement<\/a> expanding the scope of what the FTC considers unfair methods of competition.<\/p>\n A potential example he cited is an invitation to collude, where there is not yet a reduction in competition.\u00a0 For cases involving such conduct that is \u201cadjacent\u201d to violations of Sections 1 and 2 of the Sherman Act, Liu said that the FTC will not hesitate to bring \u201cstandalone\u201d cases under Section 5; however, such standalone enforcement actions remain rare.<\/p>\n","protected":false},"excerpt":{"rendered":" Speaking at the American Bar Association Antitrust Section\u2019s annual Spring Meeting on Friday, April 12, Henry Liu, Director of the Bureau of Competition at the Federal Trade Commission, said that parties that are under an antitrust investigation by the FTC should assume that the agency is looking not only at whether the conduct being investigated … <\/p>\n