Intellectual Property Consumer Protection Antitrust & Trade Regulation

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Are Your Consumer Contracts Being Invalidated By The Consumer Review Fairness Act?

On March 14, 2017, the Consumer Review Fairness Act (CRFA) will officially invalidate a whole bunch of consumer contract clauses that pertain to online reviews....more

Updated Antitrust Guidelines for IP Licensing Address New Laws, Omit Some Key Areas

In 1995, the U.S. Department of Justice (DOJ) and the Federal Trade Commission (FTC) (collectively, the Agencies) published guidelines that delineated how and when the Agencies would evaluate intellectual property licensing...more

The New Joint DOJ/FTC Antitrust Guidelines for the Licensing of Intellectual Property

On January 12, 2017, the U.S. Department of Justice and the Federal Trade Commission released updated Antitrust Guidelines for the Licensing of Intellectual Property (the “Guidelines”). These Guidelines replaced those issued...more

Obama Administration Antitrust Enforcers Take Last-Minute IP Licensing Actions

As the Obama Administration drew to a close, its antitrust enforcers took two actions of note for those involved in intellectual property (IP) licensing. The first, the joint release by the U.S. Department of Justice (DOJ)...more

In a Groundbreaking Decision, Third Circuit Provides Framework for Evaluating Numerosity

One of the least disputed elements of class certification is Rule 23(a)(1) numerosity, and so there is relatively little analysis from the courts about it. Last month, however, a divided panel of the Third Circuit provided a...more

Business Litigation Report - September 2016

Second Circuit Rejects Massive Class Action Settlement and Affirms Importance of Adequate Representation and Due Process Rights for Absent Class Members - The Second Circuit Court of Appeals recently considered whether...more

Third Circuit Creates Framework for Analyzing Numerosity

The Third Circuit recently vacated class certification, granted by the Eastern District of Pennsylvania after nearly a decade of litigation, in an antitrust case alleging that a pharmaceutical company entered into agreements...more

Third Circuit Decertifies Class on Numerosity Grounds, Listing Relevant Factors for the First Time

The Modafinil decision bodes well for defendants and represents another step toward increased scrutiny of the class action device in the Third Circuit. On September 13, a divided panel of the U.S. Court of Appeals for...more

District Court Narrowly Defines the Relevant Market in Post-Actavis Pay-For-Delay Suit

On August 8, the District of Connecticut issued a noteworthy ruling on how to approach defining the relevant market definition in a pay-for-delay suit. In In re Aggrenox Antitrust Litigation, 3:14-md-02516 (D. Conn.), three...more

Antitrust Agencies Propose Updates to IP Licensing Guidelines and Invite Comments

In 1995, the Federal Trade Commission and the Department of Justice first issued the Antitrust Guidelines for the Licensing of Intellectual Property. They represent the antitrust enforcement policy of the agencies with...more

Judge Cote Finds Initiating Lawsuits to Obtain Settlements Rather Than a Determination on the Merits is Not an Abuse of Process

On July 28, 2016, District Judge Denise Cote (S.D.N.Y.) granted defendants AlphaCap Ventures, LLC’s, a non-practicing entity, and Richard Juarez’s (collectively, “AlphaCap”) motion to dismiss plaintiff Gust, Inc.’s (“Gust”)...more

The FTC’s Analysis of Lord & Taylor’s Social Media Marketing Campaign

New ways of monetizing digital media has brought challenges in regulating advertising. The FTC has recently issued guidelines to provide businesses and advertisers with insights as to how to comply with the FTC Act. Despite...more

The 2015 FTC Policy Statement: An Advertisement Can Be Deceptive Based On Formatting

Starting a few years ago, the FTC began increasing its efforts to address online disclosures in new media. For example, in 2013, the FTC issued .com Disclosures: How To Make Effective Disclosures in Digital Advertising, which...more

Anti-Competitive Conduct Claims In ITC Section 337 Cases

Last week in Investigation No. 337-TA-1002 (certain carbon and alloy steel products); the U.S. International Trade Commission instituted an investigation of imported steel products from China. The investigation will include...more

Advertising Law - April 2016 #3

SPECIAL FOCUS: #Twitter at Ten: Ten Times Twitter Made Ad Law History - Ten years ago the world was introduced to Twitter, a microblogging site offering users the chance to express themselves just 140 characters at a...more

Quo Vadis FTC: What Does the Commission's Complaint Against Endo Pharmaceuticals and Others Say About the Future of Post-Actavis...

This alert, the title of which is adapted from a March 30, 2016 FTC Staff Attorney blog post, considers the FTC's first lawsuit challenging a so-called "no-AG" agreement. No-AG agreements are components of Hatch-Waxman...more

FTC’s Latest “Pay for Delay” Action Focuses on Noncash “Payments” and New “Product Hopping” Theory of Harm

The Federal Trade Commission (FTC) filed an antitrust complaint this week against Endo Pharmaceuticals and several generic companies, alleging that these companies entered into anticompetitive “reverse payment” settlements of...more

FTC’s Amicus Brief in Wellbutrin XL Appeal Highlights Significance for Interpretation of Actavis

The FTC has recently weighed in again on the evolving interpretation of the Supreme Court’s 2013 opinion in FTC v. Actavis, 133 S. Ct. 2223 (2013). The agency submitted an amicus brief to the Third Circuit in the appeal of...more

1st Circuit Joins 3rd Circuit: Non-Cash Reverse Payments Subject to Antitrust Scrutiny

Courts continue to evaluate the degree to which “reverse payments” are permitted post-Actavis. In the latest of these decisions, issued on February 22, 2016, the First Circuit held that non-cash payments may run afoul of the...more

Are the Patent Trolls Vulnerable to Antitrust Claims?

We previously wrote about the nascent efforts of legislators, regulators, and representa­tives of technology-dependent industries to use the antitrust laws, such as Section 2 of the Sherman Act or Section 7 of the Clayton...more

FTC Report Tallies Hatch-Waxman Settlements in First Full Year After Actavis

On January 13, 2016, the Federal Trade Commission (FTC or the Commission) released an overview of the pharmaceutical patent settlements filed with the Commission in Fiscal Year 2014 (October 1, 2013 – September 30, 2014). The...more

Advertising Law - January 2016

Ending Challenge to FTC's Data Security Authority, Wyndham Settles - In a significant development, Wyndham Hotels and Resorts reached a deal with the Federal Trade Commission in the high-profile litigation that began...more

The FTC Weighs In on Big Data

The United States Federal Trade Commission (FTC) has issued a new Report on Big Data, entitled “Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues,” to provide guidance to companies about their Big Data...more

Third Circuit Says Actavis Not Limited to Cash

In the first decision by a federal appeals court interpreting the U.S. Supreme Court’s landmark ruling in FTC v. Actavis, the Third Circuit recently held in King Drug Co. of Florence v. SmithKline Beecham Corp. that so-called...more

Patent Defeats Antitrust in Latest Test at Supreme Court

In Kimble v. Marvel Entertainment, 576 U.S. ____ (2015), the U.S. Supreme Court considered whether to overturn Brulotte v. Thys, 379 U.S. 29 (1964), its 1964 decision holding that it was per se unlawful for a patent owner to...more

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