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 American Act (BAA). Less than a week later, President Joe Biden signed Executive Order 14005, titled “Ensuring the Future Is Made in All of America by All of America’s Workers,” to further strengthen the BAA requirements and close loopholes that allowed companies to engage in offshore production and manufacturing.
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.
On Feb. 5, 2021 the Federal Trade Commission (FTC) announced the annual changes to the notification thresholds for filings under the Hart-Scott-Rodino Antitrust Improvements Act (HSR), as well as certain other values under the HSR rules. These new thresholds will become effective March 4, 2021.
For nearly 75 years, the McCarran-Ferguson Act established a broad – although not unlimited – exemption from the application of federal law to “the business of insurance,” finding “the continued regulation and taxation by the several states [of that business] in the public interest.” As a result, McCarran-Ferguson exempted insurers from federal antitrust liability where their activity in question (1) was part of the “business of insurance,” (2) was regulated by state law and (3) did not constitute a “boycott, coercion, or intimidation.” With the passage of the Competitive Health Insurance Reform Act (CHIRA) into law on Jan. 13, 2021 however, the activities of health insurers, by and large, are no longer exempt from the federal antitrust laws.