On May 5, 2016, the Consumer Financial Protection Bureau (CFPB) issued a proposed rule that drastically limits the effectiveness of arbitration clauses in consumer financial product agreements. Specifically, the proposed rule bans providers of “consumer financial products” from including arbitration clauses in their contracts that prohibit consumers from filing or participating in class actions. The proposed rule also sets out specific language regarding the right
Read More CFPB Proposes Rule Banning Class Action ProhibitionsState Antitrust Law and the Constitution
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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
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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?
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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
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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?
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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
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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 ThresholdsFCC Gives Companies Six Months to Seek Retroactive Waiver of Fax Ad Rule
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In a long-awaited decision, the Federal Communications Commission (“FCC”) announced on October 30th that fax advertisements must include a detailed notice that describes the recipient’s right to opt out of receiving future fax ads—even if the recipient consented to receive the fax. But, in an unusual concession, the agency also announced that it would retroactively waive the opt-out notice requirement for companies that had petitioned…
Read More FCC Gives Companies Six Months to Seek Retroactive Waiver of Fax Ad RuleFTC Publishes Revised Guides for Advertising Allowances and Other Merchandising Payments
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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 PaymentsTermination for Convenience Under the Uniform Commercial Code
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Between suppliers and manufacturers, planning for the termination of a supply agreement during its negotiation may seem counterintuitive, awkward, or perhaps insignificant. Termination discussions often take a back seat in the conference room where the negotiating energy is spent primarily on price, quality, and delivery terms. As one court observed, termination is typically “of little interest or concern to the parties” so long as they…
Read More Termination for Convenience Under the Uniform Commercial Code