Clifford Chance

FTC Publishes Sweeping Changes To Policy Statement On Section 5 Of The FTC Act, Potentially Opening Door To Challenge "Roll-Ups" Outside Current Antitrust Law

December 5, 2022

On November 10, 2022, the Federal Trade Commission ("FTC") issued Policy Statement Regarding the Scope of Unfair Methods of Competition Under Section 5 of the FTC Act ("Policy Statement"). In this Policy Statement, the FTC indicates that it can use Section 5 of the Federal Trade Commission Act ("Section 5") to pursue cases that "reach[] beyond the Sherman and Clayton Acts to encompass various types of unfair conduct that tend to negatively affect competitive conditions." The FTC also moved away from using a rule of reason analysis as required under the Sherman Act and U.S. courts. It will instead look to whether the conduct at issue tends to "foreclose or impair the opportunities of market participants, reduce competition between rivals, limit choice, or otherwise harm consumers." Following the release of this new statement, firms, including financial investors, should expect to see the FTC pursue investigations and enforcement actions using Section 5 in situations that do not fit within more traditional antitrust precedents.

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