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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 physical asset nor intellectual property, data has become the engine that powers much of our new commerce. And for precisely that reason, access to data is becomingly more of a competitive, and hence an antitrust, concern.…

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 …

Venture capitalism and start-ups in Ohio

Ohio has become a hot spot for venture capitalists to invest in companies. The level of talent and sense of community that the state provides are just a few of the reasons VC’s are putting their money here. Jay talks with Falon Donahue, CEO of Venture Ohio, and Porter Wright attorney Brett Thornton about why many international companies, including start-ups and emerging businesses from Israel, Japan and the EU, large organizations like Amazon and cyber security firms are calling Ohio home.…

Craft brew drinkers’ private action at crossroads as DOJ approves beer merger

Soon your Miller Lite will be brewed by a new company.

Last December, we wrote about a complaint filed by craft beer drinkers in an effort to block the merger between brewing titans Anheuser-Busch Inbev (ABI) and SABMiller. The post pointed out the unusual enforcement posture—private plaintiffs leapfrogging the federal antitrust enforcers and filing suit significantly prior to a decision by the Federal Trade Commission (FTC) or Department of Justice (DOJ). At that time we prognosticated, “a private plaintiff decrying a merger in court as illegal is left in an awkward position if the FTC or DOJ subsequently approves the …

New FDA food safety rule spans stakeholders from farm to fork

My colleagues Brian Augustine and Phil Calabrese recently authored an informative piece on a new FDA rule which impacts stakeholders in the food, transportation and hospitality industries. As many in the agribusiness will find this of interest, I wanted to take a moment to share the article with you.

From “FDA New Food Safety Rule Spans Stakeholders From Farm to Fork:”

“The rule imposes a broad array of new regulatory requirements that apply to shippers, receivers, loaders, and carriers by motor vehicle and rail engaged in the transportation of food, whether or not the food is offered for

ABA Section of Antitrust Law Spring Meeting 2016: International perspectives on online vertical restraints

As Co-Chair of the Antitrust Practice Group, it is my pleasure to bring you a series of articles summarizing some of the seminars presented at the recent ABA Antitrust Section Spring Meeting. The Spring Meeting is the Antitrust Section’s hallmark event and brings together thousands of competition and consumer protection attorneys and related professionals from across the globe. The 2016 Spring Meeting was a great success and kudos to all the organizers and presenters. Several members of our Antitrust Practice attended the meeting and have summarized some of the more interesting topics presented. To start us off, Chris Yook’s article

Authors write the latest chapter in their ongoing saga with Amazon

The same group of authors, book publishers and booksellers that urged the Department of Justice (DOJ) to investigate Amazon for antitrust violations last summer recently voiced its support for Apple in its attempt to overturn the adverse verdict against it entered by a New York federal judge in connection with the DOJ’s civil prosecution of it for harming competition with—you guessed it—Amazon.

As we have previously discussed, the literary community has been at odds with Amazon in recent years; claiming that Amazon used its dominance of the e-book retail market to control the flow of information to the general …

“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, …

Private citizens leapfrog federal antitrust enforcers and seek to block merger of beer giants

Twenty-three residents of Oregon, Washington and California are suing to enjoin the announced $100 billion merger of multinational beer brewers Anheuser-Busch Inbev (ABI) and SABMiller. A merger of the two corporations — which also involves household American companies, Anheuser-Busch and Miller Brewing Company–would combine the largest and second-largest brewers in the United States.

The December 1, 2015 complaint filed in the U.S. District Court for the District of Oregon presents multiple theories of competitive harm to consumers in the form of higher beer prices fewer choices and diminished quality. The plaintiffs’ main argument centers around beer distribution networks and the …

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, …

Antitrust woes for Amazon, Part 1

Since the Kindle was released in 2007, Amazon has become dominant in the e-publishing world. Amid its other legal battles over the last eight years, a dispute between authors, the traditional publishing industry and Amazon has been not so quietly brewing. Antitrust Law Source author Darcy Jalandoni and editor Jay Levine discuss some of the interesting twists and turns in the dispute, and what the next chapter holds.…

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

Part three: Has® become an….. amazon? Taking a Hachette to censorship?

In parts one and two we discussed®’s growth into a true giant of the publishing industry – not simply in terms of content, cost or delivery, but in size and strength – and its past history with Apple and its rival publishers (who are also its suppliers).  As part three of this series, we consider whether Amazon’s size and hardball tactics are anticompetitive or  procompetitive, and whether their effect on the dissemination of literature is relevant to an antitrust analysis.

Against this backdrop, Amazon’s “corporate bullying” once again moved into the spotlight in early 2014.  The retailer entered into …

Part Two: Has® become an….. amazon? Taking a bite out of Apple

Our second segment of this three- part series adds some background to the publishing landscape, and through the antitrust saga involving Apple and the largest publishing companies, explores how the evolution of ebooks has impacted not only consumer habits, but the publishing industry as a whole.  Check out Part One of this series here.

The publishing industry has a long, tumultuous history with the antitrust laws.  But with the advent of e-books, the relationship was taken to a whole new level.  Amazon first produced its Kindle platform in 2007, making it the first widely available e-book platform.  The mass …

Has® 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.® (or just plain ole Amazon) …

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 …

Judge finds anti-steering rules to be anti-competitive

Last Thursday, a federal district court judge found that American Express Co.’s anti-steering rules violated U.S. antitrust laws by barring merchants from encouraging customers to use other credit cards. The ruling not only handed a victory to the U.S. Department of Justice (DOJ) and the 17 state attorneys general bringing the suit, but may also, coupled with the DOJ’s earlier settlements with Visa Inc. and MasterCard Inc., have a major impact on the relationship between U.S. merchants and credit card companies in the future.

Each time a customer uses a credit card, a merchant pays a fee to the credit …

“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 …

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 …