A week or so ago I almost posted about a criminal anti-trust complaint brought by the Department of Justice, the first in decades.  I chose not to, thinking the event an outlier that must have involved incredibly horrendous facts; after all, anti-trust laws have not been vigorous enforced in recent memory.  However, see below.

On November 10, the Federal Trade Commission issued a revised policy statement that purported to make the bringing of anti-trust actions by the government far more likely.  Citing the FTC Act which bars “unfair method of competition,” broader if less precise than the prohibitions of the anti-trust laws (Sherman and  Clayton Acts), the policy purports to criminalize a wide range of ill-defined actions: conduct that is coercive, collusive, deceptive, involves use of economic power, action “otherwise restrictive or exclusionary,” or which “tends to negatively affect competitive conditions” or limit consumer choice.

For lawyers and clients seeking bright line guidance, these vague standards are troublesome.  No doubt the policy of the current liberal administration (the sole Republican FTC Commissioner was almost apoplectic in dissent), it is hard find a discernable line drawn here.  Every time a company has a better product which derives out a competitive product or company, competitive conditions and consumer choices are by definition impaired.

Vague standards give government agencies great power to shape business actions simply by reason of the fear of violation, a practice long the hallmark of the SEC during Democratic administrations.  For more detail please see my law firm’s November 18 website Alert at www.duanemorris.com.