Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1), provides the Federal Trade Commission (“FTC”) with broad authority to address “unfair methods of competition.” Although Congress chose not to define the specific conduct that constitutes unfair methods of competition, Section 5 provides a green light to the FTC to address acts and practices “that contravene the spirit of the antitrust laws and those that, if allowed to mature or complete, could violate the Sherman or Clayton Act.”
Following the principles articulated in the Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (August 13, 2015), the FTC has aggressively focused on “invitations to collude” as prime targets for standalone claims under Section 5. Examples of invitations to collude include mere requests to reach agreements relating to the provision of services, locations of advertisements, and other conduct that would clearly fall short of violating Section 1 of the Sherman Act.
This aggressive enforcement reinforces the importance of carefully scripting and avoiding impromptu conversations with competitors that relate to competitively sensitive issues to ensure that topics of discussion are appropriate and don’t cross the line into an area that might be the subject of FTC scrutiny.