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In the 11th Circuit’s highly anticipated decision in LabMD, Inc., v. FTC, the court declined to reach the most contentious issue in the case: the scope of the Federal Trade Commission’s (FTC) authority to regulate data privacy and security practices as an unfair act or practice under Section 5(n) of the FTC Act absent evidence of demonstrable harm resulting from a data breach…

Read More The LabMD Decision Reins In the FTC’s Authority to Issue Broadly Worded and Ill-Defined Orders

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 Actions

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?

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 Thresholds

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 Payments

Upcoming revisions to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) will result in numerous additional pharmaceutical licensing transactions becoming subject to filing requirements under the HSR Act. On November 6, the U.S. Federal Trade Commission (the “FTC”) released the final version of amendments to be made to the HSR Act. The amendments will impact the analysis of whether parties to…

Read More Federal Trade Commission Expands Requirements for Reporting Pharmaceutical Patent License Transactions

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?

On October 1, 2012, the Federal Trade Commission (FTC) issued final revisions to its Guides for the Use of Environmental Marketing Claims (Green Guides or Guidance). The FTC will publish the more than 300-page Green Guides in the Federal Register at 16 C.F.R. Part 260; you may review the text of the Guidance here and at the FTC’s website. Though the Guidance does not…

Read More The FTC’s Revised Green Guides

On April 13, 2009, the Federal Trade Commission’s Bureau of Competition, Health Care Division (“BC”) issued a 37-page Advisory Opinion (“Opinion”) to TriState Health Partners, Inc. (“TriState”), a physician-hospital organization based in Hagerstown, Maryland, stating that the BC would not recommend that the Commission challenge TriState’s proposed clinical integration program under the antitrust laws. The Opinion is noteworthy because it provides the most detailed discussion…

Read More Significant Developments in Clinical Integration: Federal Trade Commission Opinion Approves of Physician-Hospital Organization Proposal to Negotiate Jointly with Payers

The Antitrust Division of the U.S. Department of Justice, the Federal Trade Commission, and state attorneys general, as any antitrust aficionado knows, have dramatically improved the level of communication, cooperation, and coordination among themselves in the investigation and prosecution of antitrust violations during the past decade.1 Two important examples of such coordination are the 1998 Protocol for Coordination in Merger Investigations Between the Federal…

Read More Should the Antitrust Division, the FTC, and State Attorneys General Formally Allocate the Market for Antitrust Enforcement?