Antitrust Partner Quoted in Bloomberg BNA's Antitrust & Trade Regulation Report

August 17, 2015

Wiggin and Dana Antitrust Partner Robert M. Langer was quoted in an article featured in the August 13, 2015 issue of Bloomberg BNA's Antitrust & Trade Regulation Report (ATRR). Mr. Langer has served as a member of the advisory board of ATRR since joining Wiggin and Dana in 1994.

The article, titled, "FTC Ends Silence on Section 5 Powers in New Guidelines," addresses the FTC's issuance yesterday of a guidance document concerning the FTC's enforcement policy with respect to "unfair methods of competition" under Section 5 of the FTC Act. This is the first such guidance document regarding this particular component of the substantive provision of the FTC Act in the 101 year history of the Act. As background, the FTC Act, as originally enacted in 1914, included only "unfair methods of competition" as a prohibition. "Unfair or deceptive acts or practices" were added to Section 5 in 1938. The FTC issued a guidance document in 1980 regarding "unfair acts or practices" and another in 1983 regarding "deceptive acts or practices."

Mr. Langer reflected on the case, "saying that he ‘had hoped for somewhat more specific guidance,' especially considering the impact of the policy on state law."

His points highlighted "(a) the number of Little FTC Acts that contain a substantive prohibition mirroring the unfair method of competition component contained in Section 5 of the FTC Act; (b) the fact that many Little FTC Acts contain a directive to state courts to be ‘guided by' or to ‘give great weight' or ‘due consideration' to the FTC's interpretations of Section 5; and (c) the paucity of decision at the state level that address unfair methods of competition under such Little FTC Acts," leaving the question of how the guidance "meshes with, inter alia, the Ethyl and OAG decisions."

As the article went on to say, "(i)n those cases – see E.I. Du Pont De Nemours & Co. v. FTC (Ethyl), 729 F.2d 128 (2d Cir. 1984) and Official Airlines Guides Inc. v FTC (OAG), 640 F.2d 690 (2d Cir. 1980) – the U.S. Court of Appeals for the Second Circuit rejected standalone Section 5 cases brought by the agency and criticized it for failing to offer a workable standard for deviating from the Sherman Act.

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