73 Am. U. L. Rev. 857 (2024).

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Abstract

When Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust law. Uber has faced liability under these laws from taxi companies seeking to enforce local regulatory monopolies. And employees have used these laws to challenge their employers’ violations of labor laws.

This Article provides the first scholarly overview of state laws against unfair methods of competition on a national scale. Although these laws generally require some degree of deference to federal precedent, most states have failed to acknowledge the FTC’s evolving guidance on this subject. Nevertheless, application of these state laws broadly tracks the same categories of conduct that the FTC Act covers, including violations of the letter and spirit of antitrust law, statutory and common law, and vaguely defined public policy. These various applications share a common focus in equating unfairness with harm to competition, as understood under either economic theory or legislative policy, and not simply injury to competitors. Appreciation for this core concern can ensure these state laws minimize the risk of overdeterrence without having to eliminate their signature private right of action for damages or narrowing the range of potential plaintiffs to competitors or customers. Increased awareness of these state laws by the FTC itself will allow it to work more closely with state officials to align the objectives of competition policy on a national scale.

* Term Judicial Law Clerk, United States Court of Appeals for the Sixth Circuit. J.D., with Highest Honors, University of Chicago Law School, 2022; Ph.D., Yale University, 2018; A.B., summa cum laude, Harvard University, 2013.