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?Reproduced with permission from Antitrust & Trade Regulation Report, 101 ATRR 408, 09/30/2011. Copyright _ 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com.
I. Introduction
The authority of the Federal Trade Commission (‘‘FTC” or ‘‘the Commission”) to prohibit ‘‘unfair or deceptive acts or practices” dates back to the Wheeler-Lea Amendment to the FTC Act in 1938.[1]
Since then, federal and state courts…
Read More The Second Prong of the “Cigarette Rule’ Continues to Serve as a Basis for Finding Unfairness Under Several “Little FTC Acts’Eight years ago, in the fall of 2002, we authored an article in the pages of the Antitrust Report that warned of the dangers of assuming that state antitrust law would always be the same as its federal counterpart.1 That warning is even more salient today than when originally written. The United States Supreme Court’s 2007 decision in Leegin Creative Leather Products, Inc. v.
Read More So You Still Think You’re Safe Under the Antitrust Laws? Another Word of Advice To Those Who Would Ignore The StatesThis year brings the commencement or increase in enforcement of three major privacy initiatives. First, on March 1, 2010, Massachusetts began enforcement of its specific, and as many would claim, onerous privacy regulation. While only a Massachusetts state regulation, the implementing law states that its jurisdictional reach is to all businesses that possess personal information about a Massachusetts resident. Thus, although this jurisdictional claim has…
Read More Practical Application of Consumer Privacy Laws to Franchised Businesses*Consumer protection and antitrust attorneys seeking to prevent class certifications have three powerful, but underused, defenses upon which they can rely: a completed, a pending, or an anticipated government investigation or lawsuit (collectively, government action). In certain circumstances, these potential defenses could result in denial of a class certification motion, as a court may find that due to the government action, a class action lawsuit…
Read More What is Superiority?Wiggin and Dana proudly announces the release of the Unfair Trade Practices (Vol. 12, Connecticut Practice Series) 2006 Pocket Part. The 300 page pocket part contains an extensive discussion of the “unfairness doctrine” that is considered “must reading” for practitioners in the field. The Pocket contains a new antitrust chapter, Chapter 9, not found in the original book.
The co-authors of the Unfair Trade Practices…
Read More Unfair Trade Practices (Volume 12, Connecticut Practice Series)Franchisors that own intellectual property (patents, copyrights, or trademarks)for use as part of the franchise system have long been confronted with an unfortunate and misguided presumption that their intellectual property rights automatically gave them market power — an essential element of many antitrust claims — in the system’s patented, copyrighted, or trademarked products and services. From an antitrust perspective, this presumption, although rebuttable, created a…
Read More Independent Ink: Supreme Court Abandons Market Power Presumption of PatentsOver the past decade, there has been a growing concern that plaintiffs’ lawyers increasingly filed large, national class actions in certain state court venues perceived to be very favorable to plaintiffs. These locations including Madison County, Illinois; Jefferson County, Texas; and Palm Beach County, Florida have been called everything from “magnet” jurisdictions to “magic” jurisdictions. Despite the fact that these class actions often involved plaintiffs…
Read More Class Action Fairness Act of 2005A 1993 article in this Journal reported, without fanfare, a federal district court ‘s holding that a “franchisor and franchisee were legally incapable of conspiring” in restraint of trade.1 Since that time, two other district courts and two courts of appeals have echoed that decision.2
Reprinted with permission from the Franchise Law Journal (American Bar Association), Volume 23, Number 1, Summer 2003
Read More Antitrust and Franchising: Conspiracies Between Franchisors and Franchisees Under Section 1