Antitrust Law Source

Porter Wright

Subscribe to all posts by Porter Wright

New Brandeisians push further: Proposed antitrust legislation reflects broad remedial purpose of antitrust laws

Our last article, New Brandeisians keep their promise, discussed the contents of Sen. Amy Klobuchar’s (D-MN) proposed overarching antitrust legislation, Competition and Antitrust Law Enforcement Reform Act (CALERA). Now, we’d like to take a step back and focus on the arguments supporting and opposing such reform, and in particular the precise manner in which the … Continue Reading

New Brandeisians keep their promise: New antitrust legislation reflects movement in role of antitrust laws

Probably never before has there been introduced in Congress so many bills relating to antitrust.  At last count, over 25 different pieces of antitrust legislation have been introduced just this year, covering antitrust in general and distinct industries in particular, including pharmaceuticals, sports, news and oil. And more have been promised. While some proposed laws … Continue Reading

1990s to the present: The Chicago School and antitrust enforcement

There is no question that antitrust policy, at any time, is highly influenced by the prevailing economic thinking. Equally unquestionable is the fact that economic thinking is highly influenced by one’s political philosophy. With these principles established, the current debate over the purpose of the antitrust laws, and thus the standards they ought to employ, … Continue Reading

The antitrust revolution is coming? The antitrust revolution is here?

Borrowing from the immortal words of Paul Revere, the title consciously evokes images of a battle, though fought with words and ideas and (hopefully) not muskets and bayonets. The proper objectives of the antitrust laws and the appropriate level of antitrust enforcement has been discussed in mainstream media more over the last decade than perhaps … Continue Reading

Antitrust as antidote? Historical overview of antitrust law

An antitrust revolution is upon us. Numerous pundits and political leaders blame many of today’s societal and economic ills on what they claim is the increasing concentration of economic power in the hands of a few. Perceived lax antitrust enforcement and permissive antitrust laws, many claim, is the cause of that. Indeed, President Joe Biden … Continue Reading

Strict liability applies to “deceptive conduct” under the catch-all provision of the Pennsylvania CPL

A divided Pennsylvania Supreme Court affirmed the Superior Court and held that the 1996 amended catch-all provision of the Pennsylvania Trade Practices and Consumer Protection Law (CPL) imposes strict liability. Writing for the 4-3 majority, Justice David Wecht, based upon a professed review of the plain language of the statute, concluded the General Assembly’s addition of “or … Continue Reading

Competitive Health Insurance Reform Act repeals McCarran-Ferguson exemption for health insurers

For nearly 75 years, the McCarran-Ferguson Act established a broad – although not unlimited – exemption from the application of federal law to “the business of insurance,” finding “the continued regulation and taxation by the several states [of that business] in the public interest.” As a result, McCarran-Ferguson exempted insurers from federal antitrust liability where … Continue Reading

Putative class counsel in generic drug antitrust MDL can’t get a slice of the opt-out pie . . . At least not yet

Before even moving for certification of the putative classes they seek to represent, Interim Class Counsel (ICC) in the In re Generic Pharmaceuticals Pricing Antitrust Litigation sought to insure they would get not only their own piece of the pie, but also a sizable sliver of everyone else’s. Claiming they are prosecuting potentially “the largest … Continue Reading

Broiler chicken antitrust litigation gains momentum

As millions of Americans contemplate whether to fry, smoke or barbeque their chicken over the upcoming 4th of July holiday, the antitrust class action against our nation’s largest chicken producers—In Re Broiler Chicken Antitrust Litigation, No. 16-cv-8637—took a significant turn this past week, when the U.S. Department of Justice formally intervened in the multi-district private … Continue Reading

Is it time to change the focus of the antitrust laws? The debate is heating up

There is currently a tug-of-war going on over the heart and soul of the antitrust laws. Well, perhaps that is a bit dramatic. But it is certainly fair to say that there is surging sentiment that the antitrust laws, and specifically antitrust enforcement, should be recalibrated to address concerns that are “populist” in nature. This … Continue Reading

Access to “data” – the new competitive battlefield

Data is a buzzword popular in the media today. Most often we hear or read the word in conjunction with a breach of a major retailer or healthcare company. It is also used by companies to target us with behavioral advertising. But it also has become the new coin of the realm. Being neither a … Continue Reading

NAD shoots down Bowflex’s claims of dramatic weight loss as unsupported; disclaimer not enough

Nautilus’s Bowflex TreadClimber just became the latest example of enforcement action against a health and fitness product by the National Advertising Division (NAD), a voluntary advertising self-regulatory body administered by the Better Business Bureau. More specifically, the NAD determined that Nautilus could not support its claim that one could lose substantial weight solely by using … Continue Reading

National Advertising Division recommends that Shark Tank product discontinue representations

The National Advertising Division (NAD), a voluntary advertising self-regulatory body administered by the Better Business Bureau, just dealt a major blow to the Pavlok Aversion Therapy wristband by recommending that it discontinue numerous unsupported claims as a violation of false advertising laws. Pavlok has said it will accept the recommendations. Pavlok, a product by the … Continue Reading

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’ … Continue Reading

You win some, you lose some – the story of the FTC’s week

Last week was an exciting week in the world of merger challenges. Decisions were issued by federal courts regarding the Federal Trade Commission’s (FTC) efforts to preliminarily block two different mergers – one involving office supply retailers, the other, hospitals. The FTC was able to convince one judge that its case had merit, but not … Continue Reading

ABA Section of Antitrust Law Spring Meeting 2016: Clarifying liability in hub-and-spoke conspiracies

Last in our series on the ABA Antitrust Section’s 2016 Spring Meeting, but certainly not least, we bring you Jetta’s summary of the panel discussion on hub-and-spoke conspiracies. These conspiracies seem to be in vogue now, with the Apple (e-book) case prominent among them. Not surprisingly, the government and the defense bar sees these cases very differently. … Continue Reading

ABA Section of Antitrust Law Spring Meeting 2016: The FTC and the new frontier of privacy

Continuing our series on the 2016 Spring Meeting, Ryan Graham, an associate in the Antitrust Group and former analyst with the FBI’s Cyber Division, summarizes the panelists’ thoughts on the FTC’s future focus as it relates to privacy and data security. Privacy and data security lawyers would love to know what initiatives the Federal Trade … Continue Reading

ABA Section of Antitrust Law Spring Meeting 2016: The most important case of 2015 (that no one has ever heard of)

Continuing our series on the 2016 Spring Meeting, Brodie Butland summarizes the contentious panel discussion at the 2016 ABA Antitrust Conference, titled “Telemedicine: Are Old Definitions Restricting Competition?” The Supreme Court’s 2014-15 term was nearly unprecedented. Same-sex marriage is now legal across all 50 states. The Affordable Care Act survived yet another challenge. Lethal injection … Continue Reading

Supreme Court refuses to deny use of “representative evidence” to certify a class

Faced with what defense lawyers hoped would be another arrow in their quiver to fight class certification, the Supreme Court refused to slam the door on the use of “representative evidence” in proving predominance under Federal Rule of Civil Procedure 23(b)(3). Instead it held that, in certain cases, “representative evidence” – evidence representative of a … Continue Reading

Avoiding data disclosures mid-litigation: a lesson from the U.S. Women’s National Soccer Team

Have you ever wanted to email Abby Wambach or Alex Morgan on their personal email accounts? If so, then last week may have been your lucky week. According to a recent report by the New York Times, the United States Soccer Federation (US Soccer) filed an unredacted complaint in its labor litigation against the US Women’s … Continue Reading

FTC chief administrative law judge: No harm, no foul

In a long awaited decision, the FTC’s chief administrative law judge (ALJ) ruled against FTC staff and held that LabMD did not violate Section 5 of the FTC Act by not reasonably securing customer data. The basis for the decision was that staff could not prove that customers would suffer “substantial injury” from LabMD’s data … Continue Reading

Third Circuit affirms FTC authority to sanction companies’ insufficient cyber security postures

The Third Circuit’s recent ruling in FTC v. Wyndham Worldwide Corp., No. 14-3514 (3rd Cir. Aug. 24, 2015) marks a watershed moment in the ongoing saga of Wyndham Worldwide Corporation’s (Wyndham) data breach litigation. Prior to this decision, federal cyber security regulation has existed in the legal badlands, with the Federal Trade Commission (FTC), the … Continue Reading

Violate the Rules Once, Shame on You, Violate the Rules Twice…Go Get Your Checkbook

The Federal Trade Commission (“FTC”) and U.S. Department of Justice (“DOJ”) have a slightly different take on the old saying of “fool me once” when it comes to violating the premerger notification requirements as two investors recently found out. As we have reported before, under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, 15 U.S.C. § … Continue Reading
LexBlog