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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

Health care data breaches – inevitable, but you can minimize the damage

Data breaches in health care can be the most devastating, both to the consumers whose personally identifiable information was exposed, but also to the institutions that possessed this sensitive data. In this podcast Jay and Christina Hultsch review the various issues surrounding such data breaches, including when to review data security policies, how to prepare … 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

Is the use of statistical averages appropriate when certifying a Rule 23(b)(3) damages class?

Tyson Foods, Inc. v. Bouaphakeo is the latest in a series of cases to go before the Supreme Court on issues pertaining to the proper adjudication of class actions. Oral argument was heard on Nov. 10 and Jay and Porter Wright colleague Jetta Sandin attended. In this podcast, they share their impressions of how the … Continue Reading

Third Circuit’s Wyndham decision – Part one

In part one of this two part series, Jay is joined by Ryan Graham, a colleague at Porter Wright and former FBI analyst, to discuss the Third Circuit’s decision in FTC vs. Wyndham. Ryan and Jay discuss generally the various agencies who have authority over data security and the challenges facing companies who have experienced … 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

Government licensure for the personal training industry – unnecessary, unworkable and unintelligible

A campaign to require licensure in the personal training industry by the U.S. Registry of Exercise Professionals has left some scratching their heads. Six states have considered licensure laws that, through criminal liability, would forbid providing personal training services without a license. In 2013, Washington, D.C. passed legislation authorizing the D.C. Board of Physical Therapy … Continue Reading

Ascertainability is different from other class action elements …seriously, we aren’t joking

A little over a year ago we wrote to discuss the FTC’s Order against Aaron’s, one of the country’s largest rent-to-own (“RTO”) stores, charging that its franchisees were spying on its customers.  Well, the inevitable follow-on class actions were filed and recently, in Byrd v. Aaron’s Inc., — F.3d –, 2015 U.S. App. LEXIS 6190 … Continue Reading

Class action suits challenge Capper-Volstead

The Capper-Volstead Act is a powerful 1922 law that allows farmers and their cooperatives to act together for “collectively processing, preparing for market, handling, and marketing in interstate and foreign commerce.” Marketing as it is referred to here, includes price-setting and other conduct that would otherwise violate antitrust laws if not for Capper-Volstead. In my … Continue Reading

HSR: Listen to the statute and…wait!

As we have explained in the past, parties to a merger or acquisition must report the transaction to federal antitrust authorities – the Antitrust Division of the Department of Justice (DOJ) and the Federal Trade Commission (FTC) – provided the parties and the transaction exceed certain thresholds. The statute that governs that reporting obligation, Section … Continue Reading

Mergers 101 – So you have a deal, now what?

This podcast offers a brief introduction into the world of the Hart-Scott-Rodino Antitrust Improvement Act of 1976, more commonly referred to as the HSR Act. Two members of the Porter Wright Antitrust group, Jay Levine and Jetta Sandin, provide listeners with an overview of the history of the Act, the criteria that could make a … Continue Reading

Merging? Making an acquisition? Be careful out there

Editor’s note:  this post also appears on FedSecLaw.com Almost 40 years ago, Congress passed the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the “HSR Act”).  The HSR Act provided a mechanism pursuant to which partied to an acquisition of assets or voting securities would be required, if certain thresholds were met, to file a notification form with … Continue Reading
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