On August 13, 2015, the Federal Trade Commission (FTC) issued a statement on its ability to prosecute ‘unfair trade practices’ and enforce violations under § 5 of the FTC Act. The guidance said:
Section 5’s ban on unfair methods of competition encompasses not only those acts and practices that violate the Sherman or Clayton Act but also those that contravene the spirit of the antitrust laws and those that, if allowed to mature or complete, could violate the Sherman or Clayton Act. Congress chose not to define the specific acts and practices that constitute unfair methods of competition in violation of Section 5, recognizing that application of the statute would need to evolve with changing markets and business practices.
Without adding any specific examples or discussing its actual approach to exercising its authority under § 5, the FTC seems to be suggesting that it will continue to exercise broad power over any industry that it believes is using ‘unfair trade practices.’ Businesses beware, particularly in light of the recent Third Circuit ruling in the Wyndham case.