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Open Access. Powered by Scholars. Published by Universities.®

2010

University of Pennsylvania Law School

Law and Economics

Federal Trade Commission

Articles 1 - 2 of 2

Full-Text Articles in Law

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp Feb 2010

The Ftc's Anticompetitive Pricing Case Against Intel, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The FTC’s wide ranging complaint against Intel Corporation indicates that the FTC intends to rely on the “unfair methods of competition” language in §5 of the FTC Act to reach beyond the proscriptions on unilateral conduct contained in §2 of the Sherman Act. The Supreme Court has expressly authorized such expansion, and statutory text, legislative history and legal policy all support it. While §2 reaches only conduct that threatens to “monopolize” a market, the “unfair methods of competition” language can reach improper abuses of a dominant position that fall short of creating monopoly. Further, the FTC has expertise that ...


The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp Jan 2010

The Federal Trade Commission And The Sherman Act, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The FTC has explicit antitrust authority to enforce the Clayton Act, although not the Sherman Act. More than a half century ago, however, the Supreme Court held that the FTC Act’s prohibition of “unfair methods of competition” reaches everything the Sherman Act reaches and also a “penumbra” of practices that are not technical Sherman Act violations. That view, which had fallen into disuse in recent decades, is now being revived.

This essay defends a limited version of that “penumbra” view and suggests several applications. First, while both Sherman Act provisions are open ended in their coverage, they have limitations ...