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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 are bipartisan in nature, most are single-party efforts. Interestingly, while both sides want to battle mega-mergers and worry about increasing market concentration, true to their ideology, they attack the issue in distinct ways. We will devote this issue to the key – and perhaps most …

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, seems an inevitable conclusion to the shifting economic and political tides that have taken place over the last several decades. In this installment in our series, The antitrust revolution is coming? The antitrust revolution is here?, we discuss the continued evolution of antitrust through …

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 at any point in time. Indeed, in both 2016 and 2020, the Democratic Party platform included a section on antitrust. Many non-lawyers may assume that the public discussions about antitrust are nothing more than the normal discourse attendant to political jockeying. And to some extent …

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 has placed antitrust enforcement at the forefront of his administration and aims to use antitrust enforcement to remedy social inequities and restore democratic ideals.…

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 deceptive conduct” to the catch-all provision of the CPL dictated a lesser, more relaxed standard. Thus, the majority characterized that aspect of the statute as imposing strict liability.…

Antitrust during COVID-19 Part 3: Planning for the future

With any large crisis, litigation follows and that will certainly be the case with the COVID-19 pandemic. In the third and final installment of our podcast series on consumer protection and antitrust concerns during COVID-19, Jay Levine, host and partner at Porter Wright, talks to attorney Allen Carter, about the areas where businesses may be at risk for litigation, what they should be thinking about now to protect themselves and what to expect in the coming months and years.…

Antitrust during COVID-19 Part 2: Price gouging and hoarding of supplies

If you’ve been to the store lately, you know there are a few things that are hard to find and others are increasing in price. But when does stocking up turn into hoarding or demand driving up prices turn into price gouging? In the second of a three-part series on consumer protection and antitrust concerns during COVID-19, host Jay Levine and Porter Wright attorney Allen Carter discuss how federal and state governments protect consumers in these instances, how the COVID-19 crisis impacts the laws and what companies need to know to protect their business.…

Antitrust during COVID-19 Part 1: Concerns about collaboration

During the COVID-19 pandemic, we’ve seen companies collaborating on some great ideas. Companies should keep in mind, however, that the antitrust laws still apply and those who don’t follow them may pay dearly later. In the first of a three-part series about antitrust and consumer protection during COVID-19, host Jay Levine talks to Porter Wright attorney Allen Carter about how companies can collaborate during the current crisis, what business owners should do to protect themselves and how the government is helping and what it is watching out for. The next podcast in this series will discuss price gouging and hoarding, …

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 its product.

The TreadClimber combines the movements of a treadmill, a stepper and an elliptical machine. The television advertisement for the product, which featured the slogan “all you have to do is walk,” included a section where a man and two women discussed their substantial …

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 Behavioral Technology Group, first entered the public’s general consciousness after being featured on “Shark Tank” this past May. (It did not get a deal, and involved a rather testy exchange between show stalwarts Kevin O’Leary and Mark Cuban, and the contestant.) In essence, Pavlok …

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. …

Consumer data breaches

What happens if your personally identifiable information is stolen, but no harm has come to you…yet? Do the eyes of the court feel that simply the fear of harm warrants relief? Jay and Ryan Graham discuss the differing decisions to date and how things may evolve in the future.…

“Made in USA” class actions target condiments and energy drinks

The Times Square ball was not the only thing that dropped on New Year’s Eve for condiment maker H.J. Heinz and energy-drink maker Rockstar Inc. Both were hit with consumer class actions last Thursday in California Federal Court, alleging that their products are falsely labeled “Made in the USA” in violation of California’s ultra-strict “Made in USA” labeling statute. Named Plaintiff Suzanne Alaei brought both complaints, claiming she was swindled into buying a bottle of Heinz 57 sauce and a can of Rockstar energy drink, which despite being labeled “Made in the USA,” contained foreign-made ingredients— namely, turmeric, tamarind extract, …

Can a class be certified if some members have no injury?

Our colleagues in the class action and product liability practice groups recently posted an article that should be of interest to our readers. The article discusses the court’s conundrum: Can it certify such a broad class even though some of the purchasers likely have no injury? When the Sixth Circuit Court of Appeals says yes and the Ohio Supreme Court says no, the question can be especially difficult for class action practitioners. The article reviews cases from those courts and recaps a recent oral argument before the United States Supreme Court regarding the viability of two “no injury” class actions.…

Nordstrom and jeans designer settle “Made in USA” class action lawsuit

As we reported in December 2014, a wave of class action lawsuits has been pounding some of the nation’s largest retailers thanks to an until-recently obscure California statute that declares it a deceptive practice for a product to be labeled “Made in USA” if even the smallest component of the product is manufactured abroad. One of the larger retailers to be caught in the surf was Nordstrom, who, together with high-end jeans designer Adriano Goldschmied, was hauled into California federal court in 2014 on allegations that it sold jeans labeled “Made in USA” despite the fact that the jeans’ “fabric, …

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 for a potential breach and how to deal with third-party vendor access.…

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 breach. Because the ALJ decided the case on those grounds, he never reached two critical issues – namely, were LabMD’s data security protections “unreasonable” and does the FTC have jurisdiction to enforce the unfairness prong of Section 5 to reach unreasonable data protection measures. …

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 a data breach. They also outline the issues involved in the Wyndham case.…

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 to enact regulations for licensure of personal trainers, though it now appears that this law will be repealed.…

Let the antitrust battles begin… State licensures of professional services: A look at personal training

With the explosion of personal services industries, many states are seeking to enact new professional licensing and regulation in many industries.

From healthcare to eyebrow threading to personal training, states are considering who can practice and what type of training is necessary.  Porter Wright’s Brodie Butland, B.Sc., Starting Strength coach shares his recent Starting Strength article “Government licensure for personal trainers: A solution in search of a problem.” Tune in for a podcast with Brodie and me later this week for a deeper dive into these murky waters…

For more coverage on this decision, check out these …

FTC Breaks 100-Year Silence and Issues “Statement of Enforcement Principles”

On August 13, the FTC issued its “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act.” The 1-page policy statement provides a general framework for the Commission’s exercise of its “standalone” Section 5 authority to fight anticompetitive acts or practices. A bit of context might help to understand why this is newsworthy.

In addition to enforcing the traditional antitrust laws, the FTC is empowered by Section 5 of the FTC Act (which was enacted in 1914) to investigate and proceed against those who engage in “unfair methods of competition” and “unfair …

Lawyers: In a class of their own

Ever wonder how many lawyers can fit into one courtroom? Judge Catherine Perry of the U.S. District Court of the Eastern District of Missouri just may find out. On July 14, Judge Perry granted a motion to certify a class made up of lawyers in Downing v. Goldman Phipps PLLC.[1] Although plaintiffs have not made clear exactly how many lawyers will be in the class, they argued in their class certification briefing that there are more than 33 law firms and over 100 lawyers in the potential class.

What started it all, you ask? It is pretty simple: …

Managing post-data breach litigation just got harder

Data breaches are messy stuff, no doubt about that. They consume a huge amount of corporate resources, damage a company’s goodwill and can cost a lot of money. No real news there. And while the technological challenges in preventing, and responding to, data breaches are ever-changing – fueling the booming cybersecurity industry – the corporate response to a data breach is fairly standardized. Basic steps include (not necessarily in this order):

  • Convene response team, including IT, HR, legal and crisis management, among others (you do have a response team, right? If not, let’s talk)
  • Figure out what happened, including whether
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