Federal Trade Commission

Tuesday, November 2, 2021

Deceptive or Misleading Conduct & Consumer Protection

  • The FTC recently issued full refunds totaling over $2 million to consumers who lost money through certain deceptive direct mail schemes. The agency recovered the refunds via a federal district court order resulting from the FTC’s lawsuit against Agora Financial, LLC, NewMarket Health, and other defendants. The lawsuit was based upon two publications defendants marketed to older consumers. One publication contained a protocol promising to permanently cure type 2 diabetes in 28 days, while the other promised to show how to claim money from a secret giveaway by Congress. The FTC obtained the order including consumer refunds before the Supreme Court stripped the agency of its ability to obtain equitable monetary relief in federal court in the April 22, 2021 AMG Capital decision. Congress has not yet acted on the FTC’s request to reinstate this power.


Continue Reading FTC Updates (November 1-5, 2021)

Monday, October 25, 2021

Bureau of Competition and FTC Operations

  • The FTC issued a policy statement restoring its pre-1995 practice of requiring parties under a merger consent decree to obtain the Commission’s permission before pursuing additional acquisitions in that market. This “Prior Approval” policy is designed to protect consumers and deter “clearly anticompetitive” deals, per Holly Vedova, the Director of the Bureau of Competition. The FTC will consider a number of factors when deciding whether to permit a deal, including (1) the nature of the transaction, (2) the level of market concentration and the degree to which the transaction increases market concentration, (3) the degree of pre-merger market power, (4) the parties’ history of acquisitiveness, and (5) evidence of anticompetitive market dynamics. The Commission approved the statement by a vote of 3-2; the Commissioners voting against the policy subsequently issued a dissenting statement.


Continue Reading FTC Updates (October 25-29, 2021)

On October 25, 2021, the FTC announced that it will seek to impose prior approval provisions on merging parties in all future consent decrees. These provisions will require parties to merger consent decrees to request formal Commission approval before closing any future transactions in the same market, and potentially adjacent markets, regardless of whether those subsequent transactions are reportable under the HSR Act. This shift reinstates a policy abandoned by the FTC in 1995, and seeks to provide the Commission the unilateral ability to block future transactions it views as problematic, without having to carry the legal burden in court.
Continue Reading FTC Plans to Impose Prior Approval Requirements for Future Transactions

Monday, October 18, 2021

Deceptive or Misleading Conduct & Protecting Older Consumers

  • The FTC issued its latest report to Congress on protecting older consumers, which highlights updated findings from the Commission’s fraud reports showing trends in how older adults report being affected by fraud with the most frequent type of fraud reported by older adults

On October 8, 2021, the Federal Trade Commission (“FTC”) settled its charges against mattress company Resident Home LLC and its owner for allegedly making unsubstantiated claims that DreamCloud mattress’ are “proudly made with 100 percent USA-made premium quality materials.” In reality, the DreamCloud mattresses are finished abroad, and in some cases, they are completely imported or contain significant imported materials.
Continue Reading The FTC Settles “Made in USA” Case for $753,000 After New Rule Goes Into Effect

Tuesday, October 5, 2021

Advertising and Marketing & Privacy and Security

  • The FTC approved a settlement with the operators of MoviePass over allegations that they took steps to block subscribers from using the service as advertised, while also failing to secure subscribers’ personal data. The FTC alleged that MoviePass Inc.—along with CEO Mitchell Lowe, and MoviePass’ parent company and its CEO, deceptively marketed its “one movie per day” service, then deployed deceptive tactics aimed at preventing subscribers from using the service as advertised —actions the FTC alleged violated both the FTC Act and the Restore Online Shoppers’ Confidence Act. The FTC also alleged MoviePass’s operators left a database containing large amounts of subscribers’ personal information unencrypted and exposed, leading to unauthorized access.


Continue Reading FTC Updates – October 2021

Tuesday, September 14, 2021

Bureau of Competition and Bureau of Consumer Protection

  • The FTC and Justice Department issued a joint statement detailing antitrust guidance for businesses taking part in relief efforts and those involved in rebuilding communities affected by Hurricane Ida without violating the antitrust laws. The statement highlighted that the agencies will hold businesses or individuals accountable for attempting to “illegally subvert competition or engage in fraudulent conduct under the guide of disaster recovery.”

FTC Operations

  • The FTC approved a series of resolutions that will enable agency staff to efficiently and expeditiously investigate conduct in core FTC priority areas over the next ten years. The Bureau of Consumer Protection and the Bureau of Competition recommended that the Commission authorize eight new compulsory process resolutionsin these essential areas: (1) Acts or Practices Affecting United States Armed Forces Service Members and Veterans; (2) Acts or Practices Affecting Children; (3) Bias in Algorithms and Biometrics; (4) Deceptive and Manipulative Conduct on the Internet; (5) Repair Restrictions; (6) Abuse of Intellectual Property; (7) Common Directors and Officers and Common Ownership; and (8) Monopolization Offenses.


Continue Reading FTC Updates – September 2021

On July 1, 2021, the Federal Trade Commission’s (FTC) finalized a new Made in USA labeling rule that becomes effective August 13, 2021. The new rule codifies the FTC’s “all or virtually all” standard for unqualified “Made in USA” claims.  The rule is intended to “crack down on marketers who make false, unqualified claims that