The Federal Trade Commission (“FTC” or “Commission”) recently announced that it has adjusted the maximum civil penalty dollar amounts for violations of 16 provisions that the Commission enforces. The increase is required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and is intended to account for inflation. The act directs agencies to implement annual inflation adjustments based on a prescribed formula. Given the uptick in FTC enforcement actions, companies are likely to begin feeling the impact of the increased penalties in the coming year.

As our readers likely recall, the Supreme Court’s 2021 ruling in AMG Capital Management LLC v. Federal Trade Commission removed a powerful tool that the FTC had previously relied on to pursue monetary relief in federal court. The Supreme Court unanimously held that the Federal Trade Commission cannot obtain equitable monetary relief, such as disgorgement or restitution, when it pursues district court litigation directly under Section 13(b) of the Federal Trade Commission Act (“FTC Act” or “Act”). Rather, to obtain such relief, the FTC must first follow its administrative adjudication procedures under Section 5 of the Act.

Continue Reading How Much Could Violating a FTC Rule Cost You? $50,120 Per Violation?

Yesterday, the Federal Trade Commission proposed a sweeping new rule that would ban employers from including non-compete terms in employment agreements with virtually all of their workers – from janitors to senior executives. Describing such agreements as an “exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses,” the FTC’s rule deems non-compete agreements to be an “unfair method of competition” under Section 5 of the FTC Act, without regard for any business justifications or reasonableness. Potential rulemaking against non-compete clauses has been percolating for some time and has support from the White House, but the breadth of the proposed rule is nonetheless surprising.

The FTC’s push for this rule under its Section 5 authority surely will spark legal—including constitutional—challenges that could delay implementation of any final rule for months, if not years. Companies need not immediately start rescinding or avoiding reasonably tailored non-compete agreements with employees, but should take note that the FTC is not likely to sit on the sidelines and wait for a final rule to come into effect before taking further action against some employers based on the scope of their non-compete agreements.  The proposed rulemaking and the FTC’s recent enforcement actions  targeting specific companies’ use of non-compete provisions as violations of Section 5 reflect the FTC’s and DOJ’s aggressive approach to antitrust enforcement in the labor markets – including the FTC’s desire to bring enforcement actions in this area even before any final rule goes into effect.

Continue Reading FTC Proposes Rule to Categorically Ban Non-Compete Agreements

The FTC kicked off the holiday season analyzing data on fraudulent online shopping, cryptocurrency, and employment advertisements that are popular on social media. The Commission also announced updates to the Eyeglass Rule while also announcing the public comment period for potential updates to the Green Guides. These stories and more after the jump.

Continue Reading FTC Updates (December 5 – December 16, 2022)

The Federal Trade Commission (“FTC”) announced it is seeking public comment on potentially updating, expanding, and/or altering the Guides for the Use of Environmental Marketing Claims, known as the Green Guides (16 CFR pt 260).  Yesterday, December 14, 2022, the FTC held an open Commission meeting where the Commissioners voted 4-0 to approve the publication of a Federal Register notice announcing a public comment period.  The notice is expected to be published in mid-January.  Once the notice is published in the Federal Register, comments will be due within sixty days.   

The FTC’s Green Guides are designed to help advertisers avoid making environmental claims that may mislead consumers.  77 Fed. Reg. 62122 (Oct. 11, 2012).  The Green Guides discourage unqualified environmental benefit claims, nothing that they are difficult, if not impossible, to substantiate.  The Green Guides were first issued in 1992 and last updated in 2012.  An update to the Green Guides has been expected and desired by many as the Green Guides help businesses to make accurate environmental marketing claims and, if followed, help businesses ward off allegations of deceptive advertising claims.

Continue Reading FTC Seeks Public Comments on the Green Guides

Following Thanksgiving and Native American Heritage Day, the FTC announced an almost $10 million settlement with Google and iHeartMedia related to their allegedly deceptive past endorsements of Google’s Pixel 4 phone and released the Commission’s annual market concentration analysis of the ethanol production industry. These stories after the jump.

Continue Reading FTC Updates (November 28 – December 2, 2022)

The week and a half proceeding the Thanksgiving federal holiday was busy for the Federal Trade Commission. Not only did the Commission release yearly updates such as its Fiscal Year 2022 Agency Financial Report and National Do Not Call Registry Data Book for Fiscal Year 2022, it also filed three complaints, an amicus brief and announced an advanced notice of proposed rulemaking. The Bureau of Consumer Protection has been busy in November and focused on many false advertising and deceptive business practice issues. These stories, plus more, after the jump.

Continue Reading FTC Updates (November 14-23, 2022)

Thursday, November 10, was a big day for the FTC asserting its competition authority, from an announcement to strengthen FTC enforcement of Section 5 to weighing in on hiring restrictions. These stories, plus warnings of limited options for medication, an upcoming open Commission meeting, and more, after the jump.

Continue Reading FTC Updates (November 7-11, 2022)

The FTC hosted an online privacy seminar that brought together researchers, academics, and industry representatives to discuss trends related to consumer privacy and data security. The agency announced a lawsuit against an education technology provider for allegedly lax data security practices that exposed sensitive information about millions of customers and employees. The agency also announced a settlement with a major telecommunications company over alleged junk fees and dark pattern practices. These stories and more after the jump.

Continue Reading FTC Updates (October 31 – November 4, 2022)