On Feb. 15, 2019 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. As background, the HSR Act requires that acquisitions of voting securities or assets that exceed certain thresholds be disclosed to U.S. antitrust authorities for review before they can be completed. The “size-of-transaction threshold” requires that the transaction exceeds a certain value. Under certain circumstances, the parties involved also have to exceed “size-of-person thresholds.” This year’s values, which are adjusted annually based on changes in …
Tag Archives: FTC
Still need a data breach response plan? The FTC offers a guide to help.
If you have not yet developed a data breach response plan, the FTC has stepped in to help. The FTC has prepared a guide, a short video and a corresponding segment on its business blog to help businesses prepare for data breach events. The guide and video provide key considerations, including having your computer forensic expert or team identified, steps to notify effected parties and law enforcement, and processes to remediate a breach event. The Guide also points to additional resources for breaches of electronic health information. Perhaps most helpful, the guide offers a simple template data breach notification …
FTC has ruled….and companies better beware!
In a move the surprised no one, the Federal Trade Commission (FTC) reversed the decision of its own Administrative Law Judge (ALJ) and held that LabMD’s “data security practices constitute an unfair act or practice within the meaning of Section 5 of the FTC Act.” There are two noteworthy aspects to the opinion. First, if the magnitude of the harm is great enough, the risk of its occurrence can be low and still satisfy the “substantial injury” requirement. Second, believe it or not, the word “likely” does not mean “probably.” …
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 …
You win some, you lose some – the story of the FTC’s week
Last week was an exciting week in the world of merger challenges. Decisions were issued by federal courts regarding the Federal Trade Commission’s (FTC) efforts to preliminarily block two different mergers – one involving office supply retailers, the other, hospitals. The FTC was able to convince one judge that its case had merit, but not the other. And while we won’t know Judge Sullivan’s reasons for granting the preliminary injunction blocking the Staples/Office Depot merger (FTC v. Staples, No. 1:15-cv-02115 (D.D.C. May 10, 2016)) until later this month (the opinion is currently under seal), an apparent contradiction in …
ABA Section of Antitrust Law Spring Meeting 2016: The FTC and the new frontier of privacy
Continuing our series on the 2016 Spring Meeting, Ryan Graham, an associate in the Antitrust Group and former analyst with the FBI’s Cyber Division, summarizes the panelists’ thoughts on the FTC’s future focus as it relates to privacy and data security.
Privacy and data security lawyers would love to know what initiatives the Federal Trade Commission (FTC) will be spearheading in privacy and data security in the future. A recent panel discussion at the Spring Antitrust Meeting sponsored by the American Bar Association provided some predictive insight into this question. In the panel discussion entitled “The FTC and the New …
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, …
Third Circuit’s Wyndham decision – Part two
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.…
Third Circuit affirms FTC authority to sanction companies’ insufficient cyber security postures
The Third Circuit’s recent ruling in FTC v. Wyndham Worldwide Corp., No. 14-3514 (3rd Cir. Aug. 24, 2015) marks a watershed moment in the ongoing saga of Wyndham Worldwide Corporation’s (Wyndham) data breach litigation. Prior to this decision, federal cyber security regulation has existed in the legal badlands, with the Federal Trade Commission (FTC), the Securities and Exchange Commission and the Department of Justice regulating different aspects of data security using separate and overlapping authorities. Congress has shown little consensus on passing a comprehensive federal data breach law, and the states have created what could generously be described as …
“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 …
The importance of the state action exemption on state licensing boards
This podcast discusses the background and potential legal implications, particularly on state licensing boards, of North Carolina Board of Dental Examiners v. Federal Trade Commission, argued before the U.S. Supreme Court last month and previously summarized here. Jay Levine and Darcy Jalandoni, members of Porter Wright’s Antitrust Group, provide an overview of the state action doctrine at issue in the case, analyze possible outcomes, and assess the potential repercussions of the Court’s decision. In particular, Jay and Darcy discuss how the Court’s decision may affect how states will choose to license and oversee professionals (including medical professionals) …
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Regardless of the size of your business or the industry you are in, antitrust laws should be on your radar. From technology to healthcare to manufacturing, competition is fierce. And the laws that regulate competition in nearly every industry seem to move with the same determination.
Download Antitrust Law Source’s e-book from author, Jay Levine.…
LabMD joins Wyndham in challenging FTC’s data privacy authority
Does the FTC have authority over a company’s data privacy policy? Two major US companies, LabMD and Wyndham, are openly challenging the FTC’s power in this arena. Jay Levine, a partner in Porter Wright’s Washington, D.C. office, provides an update to what began in August of 2013 with LabMD joins Wyndham in challenging FTC’s data privacy authority.…
