The Director of the Federal Trade Commission's Bureau of Competition, Deborah Feinstein, discussed the agency's use of Section 5 of the FTC Act in a recent post on the FTC website. Feinstein noted that the FTC nearly always relies on Section 5 when it brings anticompetitive conduct cases but that the majority of these cases involve practices that would also violate the Sherman Act. Only a handful of the FTC's enforcement actions, Feinstein stated, are so-called standalone Section 5 cases, involving conduct that does not violate Section 1 or Section 2 of the Sherman Act. Standalone Section 5 cases have most often dealt with invitations to collude. For more information on invitations to collude, see Practice Note, Invitations to Collude.

Feinstein re-emphasized that the FTC will not seek disgorgement in stand-alone Section 5 cases, as stated in the 2012 withdrawal of the Commission's Policy Statement on Monetary Equitable Remedies in Competition Cases. Accordingly, she noted, the FTC's ability to use Section 5 should not chill procompetitive conduct, because the only punishment that companies face is a cease-and-desist order.

Feinstein suggested that counsel can advise their clients on the FTC's use of Section 5 by:

The remarks about Section 5 come amidst increasing pressure from some FTC Commissioners, particularly Commissioner Joshua Wright, to issue formal guidance on the scope of the FTC's Section 5 authority (see Legal Update, Commissioner Wright Delivers Remarks on Formal Section 5 Guidance).

For additional resources on Section 5 and FTC enforcement actions, see: