Protecting consumers from the FTC: Three cheers for harm!

In the waning days of her time as head of the Federal Trade Commission (FTC), former Chairwoman Edith Ramirez initiated two problematic enforcement actions: a “pure” Section 5 Unfair Methods of Competition case against Qualcomm and a case against D-Link alleging unfair and deceptive practices. Both cases are troubling. Each is premised on conduct that, while controversial, is neither directly nor empirically connected to consumer harm. Rather, these cases continue the FTC’s efforts in recent years to expand the scope of its statutory authority to encompass conduct that the commission finds objectionable — often based on untested theories and with no consideration of whether that conduct actually harms consumers or competition.