FTC Commissioners Disagree on Limits of Section 5 Applicability to Conduct Not Otherwise Covered by Antitrust Laws

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The balancing of antitrust enforcement with intellectual property protections is often controversial. Equally controversial is identifying the outer limit of Section 5 of the Federal Trade Commission Act as it may apply to conduct not otherwise covered by the antitrust laws. Both of these controversies are on display in a consent decree recently accepted by the Federal Trade Commission (FTC) on a 3-2 vote.

On November 26, 2012, the FTC issued a proposed consent decree requiring Robert Bosch GmbH (Bosch) to divest a portion of its business to prevent anticompetitive effects from its acquisition of SPX Service Solutions U.S. LLC. According to the complaint, Bosch’s acquisition would create a virtual monopoly and cause significant harm to consumers in the market for automobile air conditioning servicing equipment known as “air conditioning recycling, recovery and recharge devices” (ACRRRs).

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