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The FTC is back to business after officials attended the annual ABA Antitrust Spring Meeting held in Washington, DC. Standing on the fundamental principles of antitrust, the FTC has issued orders protecting competition in the market of innovative cancer technology. The FTC has also been busy on the consumer protection front, issuing a flurry of orders, remarks, and letters regarding review hijacking, robocalls, right to repair, chargeback deception, franchise agreements, and online marketing.  In addition, Commissioners Khan and Bedoya gave speeches about hot topics in competition, and the Supreme Court issued a decision making it easier to challenge the constitutionality of agency proceedings. These stories and more after the jump.

Continue Reading FTC Updates (March 27 – April 14, 2023)
CONSUMER PROTECTION CONCEPT

Last Thursday, April 6, the Department of Justice (DOJ) and Consumer Product Safety Commission (CPSC) sued SunSetter Products LP (SunSetter) in a Massachusetts federal court in a rare civil penalty lawsuit. SunSetter manufactures motorized retractable awnings for outdoor use. The Government alleges in its complaint that SunSetter knowingly failed to timely report under Section 15(b) of the Consumer Product Safety Act (CPSA) a hazardous defect related to vinyl covers for its retractable awnings. The complaint seeks permanent injunctive relief, including a third-party monitorship over the company, and civil penalties.

Continue Reading CPSC Seeks Civil Penalty Against SunSetter in Rare Federal Court Action
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The wait is -almost- over!  Eighteen years after the case was filed and nearly one year from the day the Second Circuit heard oral arguments in the MasterCard/Visa Interchange Fee Litigation, the Court of Appeals affirmed District Judge Margo Brodie’s approval of the $5.6 billion class action settlement agreed upon by the parties.  While many observers believed the settlement would ultimately be affirmed, the panel did so with some unanticipated wrinkles, affirming a majority of the district court’s order, but leaving many of appellants’ questions and issues unanswered.

Continue Reading Turning Fees Into Funds: $5.6 Billion Settlement in <em>MasterCard/Visa Interchange Fee Litigation</em> Is Affirmed on Appeal

This week, the FTC filed a brief as Amicus Curiae in the U.S. District Court for the District of Delaware, issued a request for information on the business practices of cloud computing providers, and proposed a “click to cancel” provision in an ongoing review of the 1973 Negative Option Rule. These stories and more after the jump.

Continue Reading FTC Updates (March 20 – March 24, 2023)
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For months, Jack Daniel’s has had a bone to pick with VIP Products, the manufacturer of a parody dog toy called “Bad Spaniels.” In Jack Daniel’s Properties Inc. v. VIP Products, claims of trademark infringement and dilution by tarnishment were raised against the dog toymaker. The Bad Spaniels dog toy at the center of this dispute is shaped and colored like a Jack Daniel’s bottle, with similarly stylized labels stating “Bad Spaniels,” “The Old No. 2,” and “on your Tennessee Carpet.” Regardless of one’s whiskey preferences, this case may leave quite the aftertaste on trademark use in expressive works as it rests at the intersection between trademark law and the First Amendment.

Continue Reading Jack Daniel’s in the Doghouse: SCOTUS Opines on First Amendment and Trademark Law

This week, the FTC extended the comment period for its proposed rule banning harmful noncompete agreements through April 19. As part of a trend in challenging this practice, the FTC struck down noncompetes that harmed low-wage security guard workers. The FTC also announced that it was sending nearly $2.4 million to consumers who were misled by a stock trading website. These stories and more after the jump.

Continue Reading FTC Updates (March 6 – March 10, 2023)

Valentine’s Day at the FTC was marked by the Commission’s breakup with one of its longtime Commissioners, who abruptly announced her retirement in a splashy op-ed that garnered significant media attention.  The agency also announced a new Office of Technology and proposed consent orders related to “review hijacking” and robocalls. These stories and more after the jump.

Continue Reading FTC Updates (February 6 – February 17, 2023)
Household Kitchen Home Appliances

Key Takeaways

  1. In 2023, the Department of Energy is likely to increase enforcement of its energy and water conservation standards.
  2. The penalties associated with violating energy and water conservation standards can exceed $500 per violation and result in multi-million-dollar penalties.
  3. Manufacturers and importers of appliances and other consumer and industrial products can mitigate enforcement risk by refamiliarizing themselves with the energy and water efficiency regime and conducting internal compliance audits.

As the Biden Administration enters its third year, now with a party split in Congress, it seems likely that the Administration will redouble its focus on executive branch regulatory tools that can be used to achieve energy-related policy objectives, including with respect to energy efficiency and reducing carbon emissions. For manufacturers and importers of appliances and certain other consumer, lighting, plumbing and commercial and industrial products, that means the potential for additional scrutiny of their products’ compliance with the Department of Energy’s (DOE) conservation standards for energy and water efficiency. It also likely means a commensurate increase in DOE enforcement activity for non-compliance with the applicable efficiency standards or the associated test procedures required to demonstrate compliance, as well as registration and labeling requirements. Given the magnitude of the penalties associated with violating efficiency standards, currently $503 per violation, which can quickly run into multiple millions of dollars across noncompliant units, manufacturers and importers should consider refamiliarizing themselves with DOE’s conservation standards regime.

Continue Reading Appliance Manufacturers and Importers Should Prepare for Increased DOE Enforcement Activity in 2023
Recall
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The second half of 2022 proceeded much like the first, with manufacturers busy navigating recalls and related litigation, although not necessarily in that order.

Philips CPAP/ BiPAP Machines Still Under Fire

Philips is still battling an onslaught of cases stemming from a June 2021 recall of CPAP and BiPAP breathing machines, including a consolidated consumer class action, In re Philips Recalled CPAP, Bi-Level PAP, & Mechanical Ventilator Products Liability Litigation, No. 2:21-mc-01230 (W.D. Pa.), MDL No. 3014, and a medical device supplier suit, Baird Respiratory Therapy, Inc. v. Philips, 2:22-cv-00886 (E.D. Pa.). Since early 2021, there have been reports of over 260 deaths and thousands of health problems associated with the degrading polyurethane foam found in these devices, which was used inside millions of CPAP and BiPAP machines for over a decade. Philips claims that it has produced over 3.95 million repair kits and replacement devices to date and continues to research potential health risks to users from its machines. Despite these efforts, its legal troubles will continue into 2023, with even more consumer-facing lawsuits, including Braverman v. Koninklijke Philips N.V., No. 2:22-cv-7927, which was first filed at the end of December 2022 in the U.S. District Court for the Eastern District of New York and is one of the first CPAP/BiPAP suits to allege the inhalation of the toxic foam particles caused mouth and tongue cancer.

Continue Reading Recall Litigation Report: Year in Review (2022)