Minding Your Business

Proskauer’s perspective on developments and trends in commercial litigation.

Tag Archives: Federal Trade Commission (FTC)

Second Circuit Overturns FTC Antitrust Decision Against 1-800-Contacts Involving Trademark Settlement Agreements

Earlier this month, the Second Circuit overturned a decision by the Federal Trade Commission (the “FTC”) holding 1-800-Contacts violated antitrust law by entering into trademark settlement and related agreements that restricted bidding on auctions held by companies that operate search engines. 1-800 Contacts v. Federal Trade Commission. Although the Second Circuit recognized that trademark settlement … Continue Reading

Illuminating Vertical Merger Challenges: FTC Challenges Illumina’s Reacquisition of a Nascent Company it Founded

After a bit of hiatus on aggressively challenging vertical mergers, regulators both here in the United States and abroad have resumed initiated actions to challenge vertical mergers. Traditionally a difficult lift for the FTC, vertical vergers involve companies above and below each other in the supply chain. Instead of directly competing, an upstream company acquires … Continue Reading

The FTC’s Enforcement Power: How AMG Reshapes the Landscape

In a unanimous opinion, the U.S. Supreme Court held that Section 13(b) of the FTC Act does not authorize the Federal Trade Commission to seek monetary relief in the form of restitution or disgorgement, despite the agency’s redoubled practice of seeking such relief under the Act since 2012. The Court’s opinion significantly reshapes the FTC’s … Continue Reading

Zillow Change to Its Platform Poses New Antitrust Questions

A major technology innovator finds itself on the defensive this week after a start-up company filed an antitrust lawsuit for alleged deceptive business practices. A tech-based online broker named Rex alleged that the National Association of Realtors (“NAR”) and Multiple Listing Services (“MLS”) operate as a cartel to control access to real estate markets, and … Continue Reading

The Future of the FTC, Part II

A previous blog post discussed FTC Chairwoman Slaughter’s first priority as the newly designated chairwoman – the COVID-19 pandemic. The FTC’s second priority, racial equity, can be broken down into two sub issues. First, the FTC plans to investigate biased and discriminatory algorithms that target vulnerable communities. As the FTC acknowledges, the analysis of data … Continue Reading

The Future of the FTC, Part I

On January 21, 2021, President Biden designated Federal Trade Commission (the “FTC”) Commissioner Rebecca Kelly Slaughter as acting chair of the FTC. Soon thereafter in one of her first speeches in her new role, Chairwoman Slaughter announced two substantive areas of priority for the FTC – the COVID-19 pandemic and racial equity. Read the full … Continue Reading

Could the FTC Pass the Torch to the Consumer Financial Protection Bureau to Oversee the Fintech Industry?

The change in the White House administration combined with a potential ground-breaking Supreme Court decision may move the oversight and enforcement for marketing by the fintech sector from the Federal Trade Commission (“FTC”) to the Consumer Financial Protection Bureau (“CFPB”).  This would be a tectonic shift.… Continue Reading

Clearance to Reduce Capacity May Not Be Clearance to Raise Prices: Can Business Review Letters Impact Price Gouging Compliance?

In response to the current pandemic, antitrust enforcers at the Department of Justice have been issuing business review letters at record pace. One of these business review letters addressed an inquiry from the pork industry about reducing supply based on the COVID pandemic disruption. This raises the question as to whether the DOJ letter about antitrust … Continue Reading

Cybersecurity: Threats, Consequences, and the Regulatory Framework

In today’s world, cybersecurity breaches and threats are pervasive concerns for any business entity, without exception. Working from home arrangements due to COVID-19 constraints only magnify the risk and create further vulnerabilities for companies. Companies should be aware of (1) the key cyber threats they face, (2) the consequences of a breach, and (3) the … Continue Reading

A New Frontier or Back to Basics? FTC Issues New Guidance on Artificial Intelligence Technology

In the latest piece to come out of the FTC’s new focus on emerging technologies, the FTC Bureau of Consumer Protection issued new guidance on the use of artificial intelligence (“AI”) and algorithms. The guidance follows up on a 2018 hearing where the FTC explored AI, algorithms, and predicative analysis. As the FTC recognizes, these … Continue Reading

Antitrust Enforcers Target Coronavirus-related Violations

As businesses across the globe grapple with the changing realities presented by the COVID-19 pandemic, U.S. and international antitrust enforcers have warned that business should continue to mind the antitrust laws. Global enforcers are also focusing on the role competition laws play as industries – both essential and hard-hit – grapple with the new environment.… Continue Reading

A Primer on the SHIELD Act: New York’s Move to Adopt More Stringent Data Security Requirements, Part II

What would companies need to do to comply with the law? The Stop Hacks and Improve Electronic Data Security (SHIELD) Act imposes requirements in two areas: cybersecurity and data breach notification. The cybersecurity provisions of the proposed SHIELD Act would require companies to adopt “reasonable safe-guards to protect the security, confidentiality and integrity” of private … Continue Reading

FTC Announces 2018 Thresholds Under HSR Act and Clayton Act

On January 26, 2018, the Federal Trade Commission announced revisions to HSR Act and Clayton Act Section 8 thresholds, which are indexed annually to account for inflation. We have identified the adjustments that are likely to be the most relevant to our clients, and reiterate several important practice tips. The Hart-Scott-Rodino Antitrust Improvements Act of 1976, commonly … Continue Reading

Chambers and Partners Releases Pharmaceutical Advertising 2018 Guide

Chambers and Partners released its first ever Pharmaceutical Advertising 2018 guide, authored by Proskauer partners Lawrence Weinstein and Alexander Kaplan with assistance from several litigation associates. The guide provides a comprehensive look at the laws and regulations governing pharmaceutical advertising in various markets, and provides important developments in the most significant jurisdictions and legal commentary on … Continue Reading
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