FTC Brings First PPE Case Under COVID-19 Consumer Protection Act
The FTC has sued a seller of personal protective equipment (PPE), bringing its first PPE-related case under the COVID-19 Consumer Protection Act (CCPA). The lawsuit demonstrates the FTC's continued focus on COVID-19-related advertising practices. Although this is not the first time the FTC has brought an action for a failure to deliver PPE on time, it is the first PPE case to be brought under the CCPA, which carries civil penalties of up to $43,792 per violation.
You Asked, We Answered – State AGs and Consumer Protection: An Update and Outlook
State attorneys general nationwide have continued to be aggressive consumer protection law enforcers. In the wake of April's unanimous Supreme Court decision curtailing the Federal Trade Commission's (FTC) ability to recoup equitable monetary relief from businesses accused of fraudulent or deceptive practices, state-level enforcement activity and state-federal coordination are expected to increase. In our recent webinar, Venable partners Eric Berman, of our Advertising and Marketing Group, and Erik Jones, of our eCommerce, Privacy, and Cybersecurity Group, addressed state AG enforcement trends and strategies for responding to a state AG investigation.
FTC Holds First Open Meeting in 20 Years
There's a new sheriff – er, chairwoman – in town over at the FTC, and she's planning to shake things up. During the Commission's first open meeting in more than 20 years, Chairwoman Khan announced a new era of streamlined, widespread rulemaking, and increased public participation, transparency, and fairness. However, as every single vote broke along party lines, with the Democratic majority steamrolling Republican requests for increased dialogue, public comment periods, and expert input, the open meetings may be little more than political theater intended to cover a massive change in how the FTC operates. In fact, public comments were relegated to the end of the meeting, after votes were already cast, and the commissioners were given only five days, the bare minimum time, to consider the new rules and regulations.
Rolling with the Punches: The FTC Goes with Civil Penalties after AMG Capital Management Takes Away Section 13(b) Authority
Following the Supreme Court's April ruling in AMG Capital Management that the FTC is not entitled to monetary relief under Section 13(b) of the FTC Act, the FTC has pivoted to other weapons in its enforcement arsenal to obtain monetary relief from those subject to enforcement actions. The latest example is the FTC's pursuit of civil penalties against a merchant cash advance provider.
After an Almost Four-Year Battle, the Second Circuit Sees Anti-Competitive Concerns Differently Than the FTC in 1-800 Contacts Case
A recent decision by the Second Circuit in an antitrust case involving advertising may have long-standing effects on how competitors use each other's names and trademarks in advertising and on settlement agreements in the intellectual property space. The Second Circuit's decision in 1-800 Contacts, Inc. v. FTC could allow competitors more freedom to agree on restraints on the use of their trademarks. While agreements between competitors should still be carefully considered from an antitrust perspective, this decision has signaled a deference to parties' negotiated trademark settlements that could allow new and more robust approaches to trademark protection. This is especially true where, as here, competitors attempt to agree on limits to the use of their trademarks in search terms purchased for advertising purposes on search engines such as Google.