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The Biden Federal Trade Commission Signals an Aggressive Antitrust Enforcement Agenda

On July 1, 2021, the full complement of Federal Trade Commission (FTC) commissioners voted in an open meeting to advance the agency’s antitrust enforcement agenda. Led by newly appointed Chair Lina M. Khan, the commission voted 3-2 to approve resolutions empowering staff to issue compulsory process, such as civil investigative demands and subpoenas, to investigate conduct and mergers in key industries. The targeted resolutions prioritize investigations into technology platforms, healthcare businesses, such as hospitals, pharmaceutical companies, and pharmacy benefit managers, and business practices that target workers and operators of small businesses. The resolutions authorize compulsory process for 10 years and maintain the requirement that a commissioner sign compulsory process documents prior to issuance. 

In another 3-2 vote, the commissioners rescinded a 2015 policy statement on “unfair methods of competition” that the majority viewed as constraining the FTC’s use of standalone authority to stop anticompetitive business tactics under Section 5 of the FTC Act. The “Statement of Enforcement Principals Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act” – issued in August 2015 – delineated three principles to guide the FTC’s decisions to use standalone Section 5 authority. First, an action should align with the public policy behind the antitrust laws, specifically the promotion of consumer welfare. Second, the business practice should be evaluated under a framework similar to the rule of reason, where the harm to competition is balanced against cognizable efficiencies and business justifications. Finally, a challenge under standalone Section 5 authority is less likely to occur if the conduct could be addressed under the Sherman Antitrust or Clayton Acts.

At the time the statement was adopted, it was seen as a victory for stakeholders seeking clear guidance regarding the FTC’s standalone unfair methods of competition authority; indeed, the statement was the first such guidance for Section 5 authority issued since the 1914 enactment of the FTC Act. The decision to revoke the guidance will allow the agency to further scrutinize a broad array of practices and further enhance the FTC staff’s investigatory discretion.

The FTC’s standalone unfair methods of competition authority has been controversial for decades. It is generally recognized as encompassing, but also understood to be broader than the codified antitrust laws. How much broader it is than the traditional framework, or in what circumstances this authority should be used, is unclear. With these votes, Khan has signaled that the FTC under the Biden administration takes a broad view of its authority and power.

© 2023 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 188

About this Author

Michael P. Fischer Healthcare Attorney Bradley Arant Boult Cummings Charlotte

Michael Fischer assists clients in the healthcare sector, and he is experienced in antitrust counseling and litigation, commercial litigation, and government investigations. His practice includes all aspects of antitrust law, including counseling, investigations (governmental and internal), litigation, and mergers and acquisitions. He has a deep understanding of the healthcare industry, particularly provider transactions and managed care contracting.

Michael provides guidance through the entire merger process – from early planning on deal...

Najla Long Senior Attorney Healthcare Bradley Arant Boult Cummings Charlotte
Senior Attorney

Najla Long advises hospitals, health systems and other healthcare providers on antitrust and competition matters. She has experience in advising both public and private companies in M&A issues involving the U.S. Department of Justice and the Federal Trade Commission.

Her practice includes all aspects of transactional antitrust compliance, including HSR filings, voluntary submissions, Second Request responses, and submissions required by consent decrees.

In addition to her healthcare practice, she has antitrust...