On June 29, 2023, the Federal Trade Commission (“FTC”) published the final version of its revised “Guides Concerning the Use of Endorsements and Testimonials in Advertising”[1], hereinafter (“Guides”). For the purposes of the Guides, it is important to note that endorsements and testimonials are treated identically.[2]
The revised Guides contain a number of significant changes to the prior version of the Guides…
Read More The FTC Has Revised Its Endorsement and Testimonial GuidesThe Federal Trade Commission (FTC) has announced its intention to ramp up enforcement of the Robinson-Patman Act (RPA), a Great Depression era anti-price discrimination law. Neither the FTC nor the DOJ has significantly enforced the RPA for several decades. This announcement marks a major shift in the enforcement landscape. Companies should work with counsel to take stock of pricing activities and to review potentially impacted…
Read More The FTC to Vigorously Enforce The Robinson-Patman ActThe United States Department of Justice Antitrust Division announced on February 3, 2023, that it has withdrawn from three guidance documents, issued in 1993, 1996 and 2011. The reason given was that the guidance documents were deemed “obsolete.”
The most significant aspect of this announced withdrawal is that each document provided certain “safety zones” for health care providers. Simply stated, if a company complied strictly…
Read More US DOJ Antitrust Division Withdraws Safety ZonesThe Federal Trade Commission (“FTC” or “Commission”) has recently taken bold measures to reshape the Commission’s enforcement priorities for review of mergers and acquisitions. The FTC shares jurisdiction over such reviews with the United States Department of Justice (“DOJ”). Accordingly, new policies have historically been adopted jointly by the FTC and DOJ. Several recent actions of the FTC, however, have been undertaken unilaterally in a stark…
Read More The FTC’s Recent Unilateral Changes in Its Merger Policies Creates Both Uncertainty and Increased RiskOn July 11, 2019, the Antitrust Division of the U.S. Department of Justice published an advisory concerning corporate compliance programs and announced a new approach to criminal charging decisions against companies.[i] Specifically, the advisory states that consideration of a company’s antitrust compliance program can serve as a critical factor in deciding whether to pursue criminal charges against a company. In other words, the…
Read More Important New Guidance — How an Effective Antitrust Compliance Program Could Prevent Criminal Charges Against Your CompanyThe Connecticut Supreme Court issued a ruling yesterday in Soto v. Bushmaster Firearms International, et al. that may greatly expand the reach of Connecticut’s principal consumer protection and business litigation statute, the Connecticut Unfair Trade Practices Act (“CUTPA”), to include business conduct not previously generally understood to be subject to CUTPA. CUTPA is Connecticut’s version of the Federal Trade Commission Act, but unlike the FTC…
Read More Connecticut Supreme Court Ruling in Soto v. Bushmaster Firearms International, et al. Expands Scope of CUTPAIn 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 OrdersIn an important development for colleges and universities throughout the United States, a federal district court judge on February 1, 2018 certified a class of medical school faculty members in an antitrust suit against Duke University and the University of North Carolina. The class action suit alleges that Duke and UNC had an agreement not to permit lateral moves of faculty members between Duke and…
Read More Faculty Non-Poaching Agreements Pose Significant Antitrust RisksIntroduction
Customer reviews are ubiquitous in today’s commercial environment. Whether the business is Amazon.com or the doctor’s office down the street, consumers are accustomed to rating and reviewing goods and services online and having access to reviews from other consumers to help inform their purchasing decisions. Ratings are important because consumers sometimes have limited opportunities to interact with sellers, prompting them to rely on accounts…
Read More Consumer Review Fairness Act Prevents Companies From Stifling Negative Consumer ReviewsIn 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