FTC’s Letters to Retailers Regarding Concussion-Related Products Has Us Scratching Our Heads

By | All About Advertising Law | August 26, 2014
FTC’s Letters to Retailers Regarding Concussion-Related Products Has Us Scratching Our Heads

It is almost football season and the FTC tries to stay seasonal; around this time in 2012, it announced a settlement with football mouthguard manufacturer Brain-Pad regarding unsubstantiated concussion prevention claims.  Subsequently, the FTC has sent warning letters to other manufacturers of sporting equipment regarding concussion prevention claims.  This year, however, the FTC has called a different play.  On August 21, the FTC announced

Even Being in Jail or Consulting with a Lawyer May Not Help Avoid Personal Liability for FTC Claims

By | All About Advertising Law | August 25, 2014
Even Being in Jail or Consulting with a Lawyer May Not Help Avoid Personal Liability for FTC Claims

A recent ruling by the Ninth Circuit affirmed a district court’s order permanently enjoining an individual defendant (Kyle Kimoto) in an FTC action from engaging in a variety of marketing tactics and requiring the individual to pay restitution.  In doing so, the Ninth Circuit rejected the defendant’s argument that his being incarcerated for mail and wire fraud  related to prior FTC violations precluded the requisite level of involvement necessary to impose liability.  The court also rejected his effort to invoke an “advice of counsel” defense.

Family Dollar to Merge with Dollar Tree – Manipulating Antitrust in High Stakes Mergers

By | TMT Perspectives | August 25, 2014
Family Dollar to Merge with Dollar Tree – Manipulating Antitrust in High Stakes Mergers

Family Dollar, a troubled discount store, is up for sale. They have entered an agreement to merge with Dollar Tree for US$8.5 billion. Recently, Dollar General, a competitor, offered US$9.7 billion. On August 21, 2014, Family Dollar’s board unanimously rejected Dollar General’s offer and reasserted their desire to go forward with Dollar Tree. The grounds were that Dollar General failed to address Family Dollar’s antitrust concerns. Somewhat ironically, this rationale has likely given Dollar General a roadmap to a bid that Family Dollar’s board couldn’t refuse without breaching their fiduciary duties.