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Has Amazon.com® become an….. amazon? Part One

Authors take their turn trying to tame the retailing beast

This three part series will discuss the newest antitrust challenges aimed at Amazon.  In Part One, we’ll introduce you to the most recent issues facing the online retailer (and publisher), while in Part Two we will provide a little history on the Amazon/Apple scuffle that cost Apple and various publishers hundreds of millions of dollars.  Finally, in Part Three, we’ll provide a bit more detail on the latest challenges and discuss whether the antitrust laws can affect the publishing elephant in the room.

Amazon.com® (or just plain ole Amazon) …

LegalZoom Kicks Off Antitrust Battle Against State Bar Associations

State bar associations and other licensing boards were left like bleeding seals in shark-infested waters following the United States Supreme Court’s landmark decision this February in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101.  The decision held that a state agency controlled by active participants in the market regulated by the agency—a description that fits pretty much every state bar association and other licensing board in areas such as medicine, nursing, cosmetology, etc.—must be “actively supervised” by a politically accountable state official in order to enjoy state-action immunity from federal antitrust laws.  …

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 (3d Cir. Apr. 16, 2015), the Third Circuit clarified the analysis for the ascertainability requirement for class actions.  While perhaps not as salacious a topic as the conduct underlying the actions themselves, the opinion could have important repercussions for antitrust and consumer class …

Supreme Court to states – actively supervise your regulating boards or else

The North Carolina State Board of Dental Examiners can no longer regulate the practice of dentistry without active state supervision—and neither can other state professional boards controlled by active market participants. Last Wednesday, the U.S. Supreme Court concluded in North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC) that the state action doctrine does not protect the board from the Federal Trade Commission’s challenge to its policy prohibiting non-dentists from offering teeth whitening services.

We previously discussed the background of this case and the state action doctrine here and here. In short, the North Carolina Board …

“Made in the USA” labeling: A trap for the unwary – Part two

How can retailers and product designers minimize their liability exposure to “Made in the USA” false-labeling claims without sacrificing the valuable label itself? In part two of the “Made in the USA” podcast series, Jay Levine, Jared Klaus and Bob Tannous discuss how mitigating risk from such claims requires a holistic approach, including such strategies as negotiating indemnity agreements and reps and warranties with upstream suppliers and manufacturers, structuring insurance arrangements, conducting internal audits and monitoring for warning signs on social media and court filings.…

“Made in the USA” labeling: A trap for the unwary – Part one

A slew of recent class actions brought in California are claiming that retailers and product designers acted deceptively by marketing their products as “Made in the USA.” But, as discussed in this podcast, the issue is far from black and white. For instance, can a pair of jeans assembled in the USA from domestically produced denim be labeled “Made in the USA” if the zipper on those jeans was imported from a foreign country? According to the FTC, the answer is yes, but California law says no. Find out how this strict California law is wrecking havoc on the apparel …

Hospital pays six figures to settle data breach enforcement suit

At the end of last month, Boston hospital Beth Israel Deaconess Medical Center (BIDMC) settled a data breach lawsuit brought by the Massachusetts Attorney General related to the 2012 theft of a physician’s laptop. Under a consent decree entered on Nov. 20, 2014, BIDMC agreed to pay $100,000 and to take a number of steps to ensure future compliance with state and federal data security laws.

The state of Massachusetts filed the enforcement suit against BIDMC on the same day as the consent decree’s entry, alleging that an unauthorized person gained access to a BIDMC physician’s unlocked office on campus …

A compliance problem truly “Made in the USA”

Following the expiration of a public comment period last week, the ink is now dry on the Federal Trade Commission’s consent decree against Made in USA Brand, LLC, settling charges that the Columbus, Ohio-based company sold its “Made in USA” certification label to product-sellers without making any attempt to verify whether the companies’ products were actually made in the USA.

The FTC’s case against Made in USA Brand, LLC seems to present a pretty bright line for what not to do when labeling a product as “Made in USA.” According to the FTC, the company’s certification would have been just …

FTC’s focus on ‘patent trolls’ not limited to competition concerns

The FTC sent a message to “patent trolls” earlier this month, though how well that message will resonate remains to be seen. On Nov. 6, the FTC’s Bureau of Consumer Protection concluded its investigation into MPHJ Technology Investments, LLC’s practices involving its so-called “inquiry letters” by agreeing to accept a consent order. The consent order addresses two sets of misrepresentations contained in various letters that MPHJ sent to alleged infringers of MPHJ patents. First, the FTC found that MPHJ misrepresented that they had sold a substantial number of licenses within a certain price range; second, they misrepresented that they intended …

How a smile might change the fortune of state licensing

One of the most important cases the U.S. Supreme Court will decide this year—at least with respect to antitrust law—involves the question of whether dentists in North Carolina can maintain a monopoly over teeth whitening services. While it hasn’t generated nearly the level of public attention as cases involving marriage equality or voting rights, North Carolina Board of Dental Examiners v. Federal Trade Commission, argued before the Court last week, could have a significant impact on the ability of state agencies to regulate specific industries and professions, particularly healthcare.

Background
Created by state statute, the purpose of the North …

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