May 21, 2020

COVID-19 and Competition: Antitrust Law During the Global Pandemic


Overview COVID-19’s rapid spread has necessitated collaborations to equip communities with the proper tools to combat the disease. Many have risen to the occasion and worked tirelessly to help protect the health and safety of the United States.  As the DOJ and FTC (the “Agencies”) put it in their March 24th Joint Antitrust Statement, however, “others may use [COVID-19] as an opportunity to subvert competition or prey on vulnerable Americans.”[1] The FTC, DOJ, and Trump Administration have taken measures to guide businesses on how to collaborate legally and have sent forceful reminders about the repercussions of violating antitrust laws during… Read more

Mar 15, 2019

FTC Imposes Record COPPA Fine

Children at computers: COPPA establishes basic online privacy protections for children under the age of 13

Continuing its aggressive approach to the enforcement of privacy law violations, the FTC last week imposed on, Inc., the operator of the popular TikTok app (formerly called, a record-setting fine of $5.7 million for the company’s violations of the Children’s Online Privacy Protection Act (“COPPA”). COPPA establishes basic online privacy protections for children under the age of 13 and generally requires parental consent for the collection and sharing of any personal data for children younger than 13. The TikTok app allows users to make videos of themselves lip-syncing to popular songs and then post those videos online. In… Read more

Jun 7, 2018

Is Inadequate Data Security an Unfair Trade Practice?

Doctor's Office: Inadequate Data Security?

In LabMD, Inc. v. Federal Trade Commission, Case No. 16-16270 (decided June 6, 2018) the United States Court of Appeals for the Eleventh Circuit addressed the enforcement of an FTC order finding that a business’s allegedly inadequate data security practices were unfair trade practices under Section 5(a) of the Federal Trade Commission Act. LabMD operated a medical laboratory that conducted diagnostic testing for cancer. Contrary to LabMD policy, an employee installed on a company computer a file-sharing application. That application allowed an outside party to download a file that contained the personal information of thousands of customers. The FTC initiated… Read more

Apr 23, 2015

FTC Tracking Company Settlement Highlights Importance of Keeping Privacy Promises

It has long been the Federal Trade Commission’s (FTC) position that if you make a privacy promise to consumers you should expect to be held to that promise.  The FTC’s complaint and its proposed settlement, announced on April 23, 2015, with Nomi Technologies, Inc. (Nomi) highlights this. Nomi’s tracking applications allow retailers to capture the unique media access control address (and other information) of mobile devices of persons who enter a retailer’s physical store as well as persons within a certain distance from the stores. Nomi then made this information available to its retailer customers for analytics purposes. Nomi promised that it would… Read more

Apr 14, 2015

Can’t Just Phone In U.S.-E.U. Safe Harbor Compliance

Recent civil actions this month brought by the Federal Trade Commission (FTC) against two companies that allowed their certification under the U.S.-E.U. Safe Harbor Framework to lapse while still claiming to be compliant is a timely reminder that the Framework requires annual re-certification. The FTC cited this lapse as a deceptive trade practice by each of TES Franchising, LLC and American International Mailing, Inc.  By way of background, shortly after the European Union’s Data Privacy Directive (the Privacy Directive) became effective in 1998, the U.S. Department of Commerce worked with European Union data protection authorities to develop the U.S.-E.U. Safe Harbor… Read more

Apr 12, 2015

FTC Cautions on Use of Consumer Data Following Business Acquisitions

The Federal Trade Commission (FTC) has long been aggressive in holding businesses accountable for the commitments made to consumers in online privacy policies. Among the related issues that the FTC has revisited over the years is the validity of changing data use practices after a business acquisition or merger. As early as 2000 in the Toysmart bankruptcy case, the FTC adopted a strict view that an acquirer — even one in a bankruptcy setting — could either not acquire (depending on the transaction structure) or undertake new uses of consumer data collected by an acquired company if the acquired company’s privacy policy… Read more

Nov 26, 2012


On October 1, 2012 the Federal Trade Commission (“FTC”) published final guidelines for businesses that market their products as “green” or environmentally friendly. The guidelines are not rules, but they do set out the agency’s views of what type of environmental claims the agency might find deceptive under Section 5 of the Federal Trade Commission Act. It is anticipated that, with the release of the green guides, there will be an increase in FTC enforcement action, and an increase in actions between competitors to enforce compliance. The new guidelines, which have not been revised since 1998, direct marketers to focus… Read more

Oct 11, 2010

FTC Releases Revised Green Guides

For the first time in 12 years, the Federal Trade Commission (“FTC”) has released an update on its “Green Guides” guidance for environmental marketing and claims. Originally released in 1992, and last updated in 1998, the Green Guides provide guidance for advertisers and marketers in the green space and warn against making broad claims, such as that a product is “eco-friendly,” if the company cannot provide supporting documentation. “In recent years, businesses have increasingly used ‘green’ marketing to capture consumers’ attention and move Americans toward a more environmentally friendly future. But what companies think green claims mean and what consumers… Read more