This is the second case brought by the FTC this year against a private membership association. Like the previous case against the American Institute for Conservation of Historic and Artistic Works, the case against the National Academy of Arbitrators revolves around two sentences in an ethics code. The FTC considers even the most innocuous provisions of such codes a breeding ground for potentially anticompetitive conduct. But the FTC can’t show any actual harm resulting from these ethics codes; furthermore, the Commission appears to not even understand the intentions behind the challenged clauses. Instead, the FTC took these sentences drastically out of context—indeed, arguing that context was completely unnecessary. The result is this proposed consent order, a document that does nothing to further any identifiable “public interest” while expanding the FTC’s self-proclaimed power to regulate the internal affairs of private organizations not directly engaged in interstate commerce.

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