Leibowitz Expresses Interest in Changing the Legal Landscape in RPM Monopolization and Section 5

Winter 2011

On December 7, 2010, FTC Chairman, Jon Liebowitz, gave a luncheon address at the Fourth Annual Future Private Antitrust Enforcement Conference, hosted by the American Antitrust Institute. The Chairman identified three categories of cases that the FTC would like to rehabilitate after the Supreme Court "hobbled" them. He indicated that the FTC may pursue an RPM case under an "inherently suspect" analysis, in which the defendant bears the burden of justifying its practice. The inherently suspect analysis would especially apply when the RPM policies facilitate a manufacturer cartel, are urged by retailers, or are used to exclude emerging retail channels. Chairman Liebowitz also stated that the FTC may bring more monopolization cases, such as Intel and Transitions, to develop this area of the law after the Court expressed concerns about private enforcement of Section 2 in Linkline, Trinko, and Credit Suisse. According to Chairman Leibowitz, the FTC continues to look for cases that define the FTC's authority under Section 5 of the FTC Act, which prohibits "unfair or deceptive...acts or practices."

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