Despite years of debate, the contours of the Federal Trade Commission's (FTC) authority to prevent "unfair methods of competition" under Section 5 of the FTC Act remain a moving target. The inherently "elusive" standard of unfairness under the FTC Act has been the subject of numerous speeches, articles, and commission consent decrees in recent memory.1 Former Chairman Jon Leibowitz, for instance, made no secret of his view that the commission's Section 5 authority extends "well beyond the reach of the antitrust laws."2 But the Leibowitz commission resisted calls to issue a formal policy statement outlining the metes and bounds of the FTC's Section 5 authority, even after a 2008 FTC workshop on the subject.
When Leibowitz stepped down and Edith Ramirez became FTC chairwoman, the bar quickly tested her appetite for a Section 5 policy statement. She, too, declined, explaining at the American Bar Association Section of Antitrust Law's spring meeting that she preferred to develop the commission's authority on a case-by-case basis rather than through a formal policy. Undaunted by the chairwoman's view, Republican Commissioner Joshua Wright issued his own Section 5 policy statement in June 2013.
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