Section 5

News & Analysis as of

Interagency Guidance Issued Regarding Deposit Reconciliation Practices

Federal banking agencies have advised financial institutions to adopt deposit reconciliation policies and practices for customer accounts, and to effectively manage the institution’s deposit reconciliation practices to comply...more

Advertising Law - May 2016 #3

Fake Subscription Notices, Real FTC Lawsuit - Fake subscription notices are the subject of a new lawsuit filed by the Federal Trade Commission in an Oregon federal court. The defendants, a web of dozens of...more

The Penn State Hershey–Pinnacle Merger: A Turning Point in FTC’s Enforcement Authority, or Just a Temporary Setback?

As we have reported previously, the Federal Trade Commission recently has taken an aggressive stance in regulating mergers in the healthcare sector. The Commission has racked up a string of victories, but last week the...more

Innovative Social Media Marketing Cannot Overlook Old-Fashioned Compliance

Social media is all about innovation, so it is no surprise that social media marketers are always looking for innovative ways—such as courting social media “influencers” and using native advertising—to promote products and...more

FTC Settles Monopolization Charges Stemming from Contract Exclusivity Terms Used by First-to-Market Medical Polymer Maker

The mere possession of monopoly power does not violate federal antitrust laws. The laws only address the anticompetitive acquisition, maintenance, or abuse of that power. The Federal Trade Commission (“FTC”) entered into a...more

LabMD’s Waiting Game: Lingering Questions over FTC’s Authority in Data Security Matters

A contentious legal battle over data security between the Federal Trade Commission and LabMD, a small medical testing lab, is chronicled in the latest edition of Bloomberg Businessweek. Dune Lawrence’s report raises...more

Judge Flunks Case Against LabMD, FTC Appeals

In March 2015, I wrote about the ongoing dispute between the FTC and LabMD, an Atlanta-based cancer screening laboratory, and looked at whether the FTC has the authority to take enforcement action over data-security practices...more

Advertising with Environmental Certifications and "Green" Seals of Approval

As consumer demand for eco-friendly, non-toxic, and sustainably-sourced products continues to rise, so does the use of environmental certifications on packaging and advertisements for virtually every kind of consumer product,...more

Advertising Law - April 2016 #2

FTC Hits Volkswagen With Suit Over Emissions Ad Campaign - The Federal Trade Commission filed suit against Volkswagen Group of America, charging the automaker with deceiving consumers in violation of Section 5 of the...more

Authenticating Purchases with Facial Recognition

Facial recognition technology has rapidly advanced in sophistication and accuracy over the years. Early use of the technology was focused on facial detection in security systems. Since 2014, the federal government has...more

The Federal Trade Commission Issues Warning Letters To App Developers

On March 17, 2016, the Federal Trade Commission (“FTC”) announced it had issued warning letters to twelve application (“app”) developers who installed in their apps software created by the company SilverPush that is capable...more

Recent Enforcement Under Section 5 of the FTC Act: So That's What a Standalone Claim of Unfair Competition Looks Like

Last August, the Federal Trade Commission issued its Statement of Enforcement Principles Regarding “Unfair Methods of Competition” Under Section 5 of the FTC Act (Statement), in an effort to provide clarity with respect to...more

The FTC's Three Current Hospital Merger Challenges: Will the FTC Ever Lose?

Beginning with the Federal Trade Commission’s 2007 decision in Evanston Northwestern Healthcare Corp., holding that a hospital merger in the North Chicago suburbs violated the antitrust laws, the FTC has experienced...more

Advertising Law - March 2016 #3

New in False Advertising Lawsuits: Security Systems and Oatmeal - Class action complaints alleging false advertising run the gamut of products and services, and recent lawsuits filed across the country bear this...more

FTC issues warning to app developers about use of microphone software—it monitors consumers’ TV use without their knowledge

Most people don’t think about the microphone on their mobile phone unless it isn’t working. Most people don’t know that if it is on, it is working all of the time and is capturing private data that it has access to....more

FTC Puts Teeth into Native Ads Guidance: Lord & Taylor Settles Deceptive Ad Claim

Last week, fashion retailer Lord & Taylor reached a settlement with the FTC over its allegedly deceptive advertising campaign, the first such action since the FTC released its Enforcement Policy Statement on Deceptively...more

Can You Hear Me Now? Audio Snooping Triggers FTC Warning to Mobile App Developers

This week, a dozen mobile app developers received warning letters from the FTC concerning audio monitoring software used in their apps, but not clearly disclosed to consumers. The app developers allegedly used software...more

U.S. Antitrust Agencies Continue Enforcement Push Targeting Invitations to Collude

Recent federal antitrust enforcement activity demonstrates that companies that invite or merely suggest collusive agreements to competitors can be found liable. As the federal antitrust authorities continue their path to...more

Mobile Applications that Track User Information Have the FTC’s Attention

Similar to website browsers, many mobile applications collect a variety of information from the user, including, the user’s identity, usage history, past log-ins, and location. This enables the application to provide various...more

An Honest Struggle to Advertise "Natural" Products

On February 12, 2016, two consumers brought a proposed New York state class action lawsuit against The Honest Company, Inc., a personal care products company co-founded by actress Jessica Alba. The lawsuit alleges that The...more

FTC Announces Settlement with ASUS over Insecure Routers and Cloud Services

Yesterday, the FTC announced that it had entered into a settlement agreement with Taiwan-based computer hardware manufacturer ASUSTeK Computer Inc., resolving allegations that the company failed to take reasonable steps to...more

Inadequate OCR Technology and Policy Result in Few Consequences for Repeat HIPAA Violators

The Office for Civil Rights within the U.S. Department of Health and Human Services (OCR) is the federal agency tasked with enforcing the Health Insurance Portability and Accountability Act (HIPAA). HIPAA, as most folks...more

FTC Continues To Crack Down On App Developers

On February 5, 2016, the Federal Trade Commission (“FTC”) announced that it reached a settlement with the San Francisco company General Workings Inc., also doing business as Vulcun, and its founders. The FTC brought a...more

FTC Issues a Friendly Warning on Certain Types of Online Advertising

Do you know how much of the content on your favorite digital news site or print magazine is advertising? Probably more than you think. Many advertisements are obvious because they have a clear promotional message, style...more

Courts Send Mixed Messages on Standing for Plaintiffs in Data Breach Litigation

New decisions from two federal courts may allow defendants in data breach class action litigation to breathe somewhat easier, following a run of adverse decisions last year. These decisions illustrate an emerging trend of...more

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