Conduct-Specific Tests? How the FTC Can Reframe the Section 5 Debate

Over the last few years, the Federal Trade Commission (“FTC”) has awakened Section 5’s “unfair methods of competition” prong from its slumber and ignited a debate about when, if ever, it is proper to use Section 5 to reach conduct beyond the Sherman Act’s four corners. Complicating matters is the dearth of federal court guidance on the issue.  It has been a quarter of a century since any federal court has opined on Section 5’s scope and nearly 40 years