Page:Intel, Apple, Google, Microsoft, and Facebook - Observations on Antitrust and the High-Tech Sector.pdf/16

 intended, but because to the extent one believes (as I do) that Section 5 should apply in the “one off” case, predicting those elements in advance is a futile task.

Further, while I am on the topic of conduct cases that the Commission generally brings in Part 3 administrative litigation (and under Section 5 in particular), I believe there are a few additional considerations that should apply. To start, the Commission’s story should, if possible, exhibit the expertise that the Commission can bring to the analysis, especially as compared with a generalist federal district court judge in private antitrust cases. I’ve already alluded to the Commission’s expertise in analyzing conduct by a firm with “incipient” monopoly power, which may not amount to the market power required by the “attempt to monopolize” case law. The conduct may also, however, involve deception (as it did in N-Data and Intel) and hence trigger the agency’s consumer protection expertise and Section 5’s consumer protection prong. Indeed, the federal courts have recognized the Commission’s special expertise in this respect. And, as Commissioner Kovacic has observed, the FTC is a better antitrust agency because of its consumer protection mission.

When the Commission brings a conduct case, it should be mindful that “collateral consequences” may follow from its decision and should limit the risk of false positives. To be sure, most collateral consequences are inevitably a result of the DOJ’s obligation to proceed in federal district court under the Sherman Act: plaintiffs’ counsel love to make a living riding the coattails of those cases in private treble damage class action cases.