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Episode 35
Part two: Planning for a data breach

Matt Curtin and Jay continue their discussion of data breaches and cyber security focusing on how to construct an incident response plan and why having more data is not always better.

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Episode 33
Consolidation in the energy industry

Jay welcomes colleague Brett Thornton, chair of Porter Wright’s oil and gas practice, as they examine the oil and gas industry in the antitrust arena. Brett explains how consolidation can create competitive pressure and what issues are on the horizon for oil and gas companies.

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Episode 34
Part one: Planning for a data breach

Porter Wright’s Jay Levine and Matt Curtin of Interhack discuss how companies can plan for data breaches and how knowing what you don’t know is important.

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National Advertising Division confirms: Make sure your testimonials have evidentiary support

Many health and fitness companies know that federal and state laws prohibit unfair or deceptive practices, including false advertising. But many still have the mistaken impression that they can freely post testimonials from their products’ users without running afoul of false advertising laws. After all, the thought goes, the company is merely relaying its customers’ opinions and experiences, not making general statements of a product’s effects.

Although facially plausible, this view is not consistent with false advertising law. By way of background, Section 12 of the Federal Trade Commission Act prohibits “false advertisement” for food, drugs, devices, services, or cosmetics. “False advertisement” is defined as an advertisement that is “misleading in a material respect.” 15 U.S.C. 55(a)(1). “Misleading” includes not only misrepresenting a product, but making claims about a product that are not supported by credible evidence. This is especially true of health claims, where federal law requires supporting “competent and reliable” scientific evidence.

These same standards apply to testimonials; an endorsement or testimonial cannot convey an express or implied representation that the advertiser itself could not make. 16 C.F.R. 255.1(a). More colloquially, an advertiser cannot make unsubstantiated claims by hiding behind testimonials making the same claims. If the advertiser has no competent and reliable scientific evidence that its product cures cancer, it cannot publish a testimonial by John Doe stating that the product cured his cancer. Continue Reading

Still need a data breach response plan? The FTC offers a guide to help.

If you have not yet developed a data breach response plan, the FTC has stepped in to help. The FTC has prepared a guide, a short video and a corresponding segment on its business blog to help businesses prepare for data breach events. The guide and video provide key considerations, including having your computer forensic expert or team identified, steps to notify effected parties and law enforcement, and processes to remediate a breach event. The Guide also points to additional resources for breaches of electronic health information. Perhaps most helpful, the guide offers a simple template data breach notification letter that businesses can easily customize and have on file to help prepare themselves for a breach event. Continue Reading

FTC has ruled….and companies better beware!

In a move the surprised no one, the Federal Trade Commission (FTC) reversed the decision of its own Administrative Law Judge (ALJ) and held that LabMD’s “data security practices constitute an unfair act or practice within the meaning of Section 5 of the FTC Act.” There are two noteworthy aspects to the opinion. First, if the magnitude of the harm is great enough, the risk of its occurrence can be low and still satisfy the “substantial injury” requirement. Second, believe it or not, the word “likely” does not mean “probably.” Continue Reading

Craft brew drinkers’ private action at crossroads as DOJ approves beer merger

Soon your Miller Lite will be brewed by a new company.

Last December, we wrote about a complaint filed by craft beer drinkers in an effort to block the merger between brewing titans Anheuser-Busch Inbev (ABI) and SABMiller. The post pointed out the unusual enforcement posture—private plaintiffs leapfrogging the federal antitrust enforcers and filing suit significantly prior to a decision by the Federal Trade Commission (FTC) or Department of Justice (DOJ). At that time we prognosticated, “a private plaintiff decrying a merger in court as illegal is left in an awkward position if the FTC or DOJ subsequently approves the deal.”

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