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

By Jay L. Levine and Porter Wright on
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

By Jay L. Levine and Porter Wright on
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?

By Jay L. Levine and Porter Wright on
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

By Jay L. Levine and Porter Wright on
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

Reevaluating your supply chain: How the new American-made product qualifications rule may impact your business

By Jay L. Levine on
Two recent actions aimed at maximizing domestically-produced goods, products, materials and services may have significant impact on contractors and supply chains. In January 2021, the Federal Acquisition Regulation (FAR) Council published a final rule “Maximizing Use of American-Made Goods, Products, and Materials” that amended the requirements for products to be classified as American-made under the Buy … Continue Reading

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

By Porter Wright on
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

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

By Porter Wright on
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

By Porter Wright on
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

By Porter Wright on
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

Consumer data breaches

By Jay L. Levine and Porter Wright on
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.… Continue Reading

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

By Jared Klaus on
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 … Continue Reading

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

By Jay L. Levine on
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 … Continue Reading

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

By Jay L. Levine and Porter Wright on
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

By Jay L. Levine and Porter Wright on
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’s Wyndham decision – Part two

By Jay L. Levine and Porter Wright on
So what did the Third Circuit hold in FTC vs. Wyndham and what does the decision really mean? Jay and Ryan continue their discussion of the Third Circuit’s decision and give you some key takeaways on what this means for companies that collect personally identifiable information.… Continue Reading

Third Circuit’s Wyndham decision – Part one

By Jay L. Levine and Porter Wright on
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

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

By Jay L. Levine and Porter Wright on
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

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

By Jay L. Levine on
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 … Continue Reading

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

By Jay L. Levine and Allen Carter on
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 … Continue Reading

Lawyers: In a class of their own

By Porter Wright on
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 … Continue Reading
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