On Thursday, Feb. 26, 2015, BakerHostetler sponsored a symposium on Section 5 of the Federal Trade Commission Act at The Willard InterContinental in Washington, D.C. Attendees learned the best ways to protect their companies and institutions from potential FTC claims of antitrust or consumer fraud violations during this all-day program, which featured a key-note address by FTC Commissioner Joshua D. Wright.

Section 5 broadly prohibits “[un]fair methods of competition” and “unfair or deceptive acts or practices.” It has been aggressively used by the FTC in recent years to challenge sales and marketing conduct by companies as being antitrust or consumer fraud and deception violations. The FTC has challenged conduct that might otherwise be permissible under the Sherman Antitrust Act, an interpretation some courts have endorsed in the past. Recent public investigations against major companies have ensued, seeking consent decrees as well as restitution and disgorgement of profits. Congress has also joined the debate about Section 5, calling for guidelines, which some commissioners have proposed. These important developments have thrust Section 5 back into the sphere of antitrust and unfair competition enforcement, thereby compelling companies and their counsel to take prudent steps to protect themselves from Section 5 prosecutions.

The Section 5 Symposium featured present and former representatives from the three branches of government who discussed the origins, past and present use, and future parameters of Section 5 as a renewed enforcement vehicle.

Presenters:

• The Hon. Joshua D. Wright, Commissioner, Federal Trade Commission, Keynote Speaker
• The Hon. Maureen K. Ohlhausen, Commissioner, Federal Trade Commission
• The Hon. Douglas H. Ginsburg, Circuit Judge, Federal Court of Appeals for the District of Columbia Circuit
• The Hon. William E. Kovacic, former Federal Trade Commission Chairman, and now Professor at George Washington Law School
• The Hon. Terry Calvani, former Commissioner, Federal Trade Commission, and now Of Counsel, Freshfields Bruckhaus Deringer LLP
• Deborah L. Feinstein, Director of Federal Trade Commission Bureau of Competition
• Jessica L. Rich, Director of Federal Trade Commission Bureau of Consumer Protection
• Matthew Owen, Chief Counsel to the U.S. Senate Subcommittee on Antitrust, Competition Policy and Consumer Rights, General Counsel to Senator Mike Lee (R-Utah)
• Anthony Grossi, Counsel to the U.S. House Committee on the Judiciary, Subcommittee on Regulatory Reform, Commercial and Antitrust Law
• Barry J. Cutler, former Director of Federal Trade Commission Bureau of Consumer Protection, and now Of Counsel, BakerHostetler
• Susan A. Creighton, former Director of Federal Trade Commission Bureau of Competition, and now Partner, Wilson, Sonsini, Goodrich & Rosati, PC
• Marc Winerman, Attorney Advisor to former Federal Trade Commission Chairman Kovacic
• Robert H. Lande, former Federal Trade Commission attorney, and now Professor at University of Baltimore Law School
• Neil W. Averitt, former Federal Trade Commission attorney and organizer of 2008 Section 5 Federal Trade Commission Public Workshop

View the agenda.

Recordings:

Introduction of Program and Panel 1: The Legislative, Federal Trade Commission, and Judicial History of Section 5

Panel 2: Recent Developments in the Interpretation and Use of Section 5 by the Federal Trade Commission

Keynote Speaker: The Hon. Joshua D. Wright, Federal Trade Commissioner

Panel 3: The Current Debate at the Federal Trade Commission over Section 5 Guidelines

Panel 4: The Future of Section 5 at the Federal Trade Commission, in the Courts, and in Congress

Photos:

 L-R: Neil Averitt, Robert Lande, Marc Winerman

Commissioner Wright

L-R: Neil W. Averitt, Marc Winerman, Robert H. Lande, Carl Hittinger, Gregory Commins

 Susan A. Creighton talking with a guest at BakerHostetler's Section 5 Symposium

 L-R: Barry Cutler, Tanya Forsheit, Deborah Feinstein, Jessica L. Rich, Carl Hittinger

 The Hon. Joshua D. Wright, Commissioner

The Hon. Terry Calvani; The Hon. Douglas H. Ginsburg; The Hon. William E. Kovacic;
The Hon. Joshua D. Wright, Commissioner; Carl Hittinger; Jeffry Duffy

L-R: Susan A. Creighton, The Hon. Maureen K. Ohlhausen, Matthew Owen, Anthony Grossi,
Carl Hittinger, Dan Foix