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 agreements are “not immune from antitrust scrutiny,” it disagreed with the FTC’s analysis of the alleged restraints set forth in the agreements.
Bioplastics: Snickers® Candy Bars Have It Wrapped Up
A team of researchers from Yale University, the University of Maryland and the University of Wisconsin-Madison just published a study on a durable, biodegradable plastic alternative made 100% of wood. This study is just one example of the advent of a new generation of biobased plastics or bioplastics, a term broadly referring to products made from organic matter that have the same properties as “ordinary” plastic. The attractiveness of bioplastics is due to their potential to meet environmental as well as economic goals. According to current estimates, the bioplastics market size is expected to reach at least USD $20.0 billion by 2026.
Court Dismisses “Phantom Markdown” Suit against Saks
On March 22, the U.S. District Court for the Southern District of California dismissed a putative class action against Saks Inc. alleging that Saks advertised “phantom markdowns” of Saks-branded products. The Plaintiff alleged that he purchased a pair of men’s shoes “valued” by Saks at $145 but sold at a discounted price of $79.99. The plaintiff claimed that he only bought the shoes because he believed he was receiving a significant value and that Saks’s $145 market price was false and misleading.
Of “Lunch Stands and Merry-Go-Rounds”: Ninth Circuit Rejects FTC Authority Over Broadband Providers
In late August 2016, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that a core source of FTC authority (Section 5 of the FTC
Antitrust Agencies Propose Updates to IP Licensing Guidelines and Invite Comments
On August 12, 2016, the Federal Trade Commission and the Department of Justice proposed changes to the Antitrust Guidelines for the Licensing of Intellectual Property, also known as the IP Licensing Guidelines. Since they were first issued in 1995, the agencies, courts, and businesses have relied on these Guidelines when
No Harm? No Matter. FTC Broadens Data Security Liability
No harm, no foul? Not according to the FTC.
On July 29, 2016, the Commission held that a showing of tangible injury was not necessary in order for company acts and practices to be considered unfair. The case, In the Matter of LabMD, Inc., arose after a data security company accessed and downloaded a file from a former medical testing company, LabMD. The file contained 1,718 pages of personal information belonging to approximately 9,300 consumers, including names, addresses, dates of birth, social security numbers and medical information. The FTC’s ruling overturned a prior decision by Chief Administrative Law Judge D. Michael Chappell, who had found that LabMD’s supposed failure to institute reasonable data security measures was not likely to cause substantial injury to consumers.
Proposed West Virginia Hospital Merger Could Have Nationwide Effects
West Virginia recently passed legislation aimed at shielding an in-state hospital merger from antitrust review by the Federal Trade Commission, and if the West Virginia Health Care Authority and West Virginia Attorney General approve the merger, other states could follow suit. Recent developments, including the FTC’s reaction to West Virginia’s proposed legislation, preview how future battles between the FTC and other states may unfold as the FTC continues to oppose state action grants of immunity from federal antitrust laws.
Four Takeaways from the ABA Antitrust Section’s 2016 Spring Meeting
Antitrust practitioners, enforcers and industry professionals came together in Washington, D.C. for the 64th installment of the ABA Section of Antitrust Law’s annual Spring Meeting. The Spring Meeting provides