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The U.S. Federal Trade Commission is rumored to be deciding whether to bring a “pure Section 5” case against Google as a result of complaints that the company unfairly favors its own offerings over those of its rivals in its search results. But the case will fail miserably at the hands of a reviewing court and the agency will be confined to relatively non-controversial enforcement violations if the FTC fails to impose upon itself a tightly bounded and constrained legal framework that contains clear limiting principles. The only way a court will allow the FTC to pursue a pure Section 5 theory against Google would be if the agency constrains itself with a coherent principle of competitive harm: the consumer choice framework.

This brief piece only summarizes the underlying issues. Readers interested in more information about the expansive use of Section 5 of the FTC Act should consult 'FTC v. Intel: Applying the 'Consumer Choice' Framework to 'Pure' Section 5 Allegations.' Readers interested in more information about the Consumer Choice approach to competition and consumer protection law should consult 'Using the 'Consumer Choice' Approach to Antitrust Law.'





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