Section 5 FTC Act Blog Symposium: Comments of Geoff Manne
The FTC should be ashamed
Seriously. What interpretation of events is there other than that the FTC knew it could not prevail in a Section 2 case and decided to go in search of a back-up? Commissioners Rosch and Leibowitz have been making noise about Section 5 for some time, and this seemed like the perfect opportunity to put it to the test—to make some new law that would favor the Commission in cases like this one where it “knows” there is injury but the Section 2 case law makes prevailing difficult nonetheless. They have “found” their case, and Intel, its shareholders, consumers and competition generally will suffer mightily for their hubris.