In PHH Corporation v. Consumer Financial Protection Bureau, no. 15-1177 (D.C. Cir. Oct. 11, 2016), the Court of Appeals for the D.C. Circuit recently held that the organizational structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional. The appellate court concluded that the CFPB’s structure—as an independent agency with a single director—did not contain sufficient checks to satisfy basic separation of powers
Read More Court Rules CFPB Unconstitutional and Finds CFPB Improperly Applied Mortgage Lending and Reinsurance Laws
State Antitrust Law and the Constitution
In early 1978, I wrote an Op-ed piece for the New York Times describing the 1977 landmark “Chevymobile” settlement by forty-four state attorneys general with General Motors in which it was alleged that GM had failed to disclose the substitution of Chevy engines in 1977 Oldsmobiles, Buicks and Pontiacs. In my Op-ed, I had predicted that the Chevymobile matter, in which I participated as a
Read More State Antitrust Law and the ConstitutionThird Circuit Affirms FTC’s Ability to Bring Cybersecurity Enforcement Actions
On August 24th, the United States Court of Appeals for the Third Circuit issued its decision in Federal Trade Commission v. Wyndham Worldwide Corp., affirming a 2014 district court ruling that the Federal Trade Commission (“FTC”) has the authority to regulate cybersecurity lapses. The Third Circuit also held that Wyndham – the global hospitality giant — had fair notice that its cybersecurity practices could
Read More Third Circuit Affirms FTC’s Ability to Bring Cybersecurity Enforcement ActionsUnilateral Price Policies in the Contact Lens Industry: Can Manufacturers Be Forced to Sell to Every Retailer?
It is a cardinal rule of antitrust that—absent very limited exceptions—parties can do business with, or refuse to do business with, whomever they choose. The Supreme Court solidified that premise in United States v. Colgate & Co.1 and has reiterated it time and again.2 Recent state legislation and lawsuits arising in the contact lens industry are threatening to dismantle that bedrock principle
Read More Unilateral Price Policies in the Contact Lens Industry: Can Manufacturers Be Forced to Sell to Every Retailer?Competition News, June 2015
Unilateral Price Policies in the Contact Lens Industry: Can Manufacturers Be Forced to Sell to Every Retailer?
It is a cardinal rule of antitrust that – absent very limited exceptions – parties can do business, or refuse to do business, with whomever they choose. The Supreme Court solidified that premise in United States v. Colgate & Co., 250 U.S. 300, 307 (1919), and has
Read More Competition News, June 2015North Carolina State Board of Dental Examiners v. FTC — What Hath the Supreme Court Wrought?
The federalism debate has continued to serve as a point of controversy and division in American politics and jurisprudence.1 The balance of power between the states and the federal government has shifted over time reflecting the realities of this debate. Historically, the states were thought to possess the exclusive power to regulate ‘‘their purely internal affairs” through the exercise of their police powers.2
Read More North Carolina State Board of Dental Examiners v. FTC — What Hath the Supreme Court Wrought?FTC Announces New Premerger-Notification and Interlocking-Directorate Thresholds
The Federal Trade Commission (FTC) has announced its annual adjustment of the thresholds for premerger notification filings under the Hart-Scott-Rodino Act (HSR), as well its adjustment for the thresholds for prohibitions on certain interlocking directorates under Section 8 of the Clayton Act.
The new HSR thresholds will be effective thirty days after publication in the Federal Register. Publication is expected sometime during the week of
Read More FTC Announces New Premerger-Notification and Interlocking-Directorate ThresholdsFTC Publishes Revised Guides for Advertising Allowances and Other Merchandising Payments
Recently, for the first time in 24 years, the Federal Trade Commission (“FTC”) published revisions to its guidelines on advertising allowances and other promotional payments and services, widely known as the Fred Meyer Guides (“Guides”). Originally published in 1969, the Guides explain Sections 2(d) and 2(e) of the Robinson-Patman Act, which require a seller that pays for or provides promotional allowances to customers to do
Read More FTC Publishes Revised Guides for Advertising Allowances and Other Merchandising PaymentsNew Guidance on Providing Financial Services to Medical Marijuana Businesses
Connecticut recently awarded licenses to four medical marijuana producers, marking the beginning of Connecticut’s legal medical marijuana industry. Although medical marijuana businesses are licensed and heavily regulated by the State of Connecticut,[1] they have had difficulty securing basic financial services due to ambiguities in federal policy. Financial institutions are wary of servicing such clients owing to the requirements of the Bank Secrecy Act and
Read More New Guidance on Providing Financial Services to Medical Marijuana BusinessesBusiness Torts as Little FTC Act Claims: Does the Difference Really Make a Difference?
Section 5(a)(1) of the Federal Trade Commission Act (the FTC Act), 15 U.S.C. § 45(a)(1), prohibits, among other offenses, “unfair or deceptive acts or practices.” Twenty-eight states have en-acted FTC Act analogues, which are commonly referred to as “Little FTC Acts.” See chart appended as Exhibit A.
Because these state statutes are based on the FTC Act, states have long looked to precedent under
Read More Business Torts as Little FTC Act Claims: Does the Difference Really Make a Difference?