After a lengthy investigation, on December 16, 2009, the Federal Trade Commission (FTC) filed an administrative complaint against Intel Corporation (Intel) alleging that it has engaged in anticompetitive and unfair conduct in order to maintain a superior position in several markets. The FTC action is particularly notable because the Commission is attempting to invoke authority under Section 5 of the Federal Trade Commission Act (FTC Act) recognized by the Supreme Court in 1972 to pursue arguably anticompetitive conduct that does not violate the Sherman Act. Only time will tell how successful the Section 5 revival will be, but companies should be aware of the FTC’s current willingness to exercise its full authority under the broader Section 5 and reach conduct that the Sherman Act would permit.
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