The amazing story of how a Federal Trade Commission inquiry devastated a thriving company, following a push from a spurned vendor, is the subject of a feature by Dune Lawrence at Business Week. My take last year at Cato, and more.
George Mason lawprof and former Federal Trade Commission commissioner Joshua Wright, who specializes in antitrust, guestblogging at Daniel Fisher’s on FTC v. McWane:
Proving antitrust harm with rigorous economic evidence is hard. The FTC would prefer to avoid that route and instead favor an approach where lower courts would just defer to its “expert” judgment and conclude that whatever business practices the agency says are anticompetitive are in fact so. This outcome is unsurprising given that the FTC has ruled for itself in 100 percent of its cases over the past three decades – though it is reversed more often than the decisions of federal court judges. So much for unbiased rigor and expertise. But the Supreme Court has consistently rejected the view that the FTC or any antitrust plaintiff can make out a case with a stack of complaints from disgruntled rivals. Instead, the Supreme Court has made clear that the antitrust rules applied to the behavior of a single firm acting alone – that is, a firm alleged to have monopolized an industry on its own rather than joined a cartel with rivals – are to be governed by economic thinking and economic evidence instead of hand-waving and complaints from rivals alone.
- Fee-vergnügen: John Edwards, who knows a thing or two about tactical concealment, seeks to rep Volkswagen owners in mass litigation [Grist, Politico]
- Speaking of auto litigation: first General Motors ignition case goes to trial, automaker charges fraud, plaintiffs hire criminal counsel [Bloomberg, more]
- The Maryland redistricting project I was involved in this past fall has now resulted in a bill filed with the legislature by Gov. Larry Hogan [Danielle Gaines/Frederick News-Post, WBAL, Anjali Shastry/Washington Times, Baltimore Sun, earlier]
- Discovery and other procedural reforms in the federal courts: “Chief Justice Roberts on speedier civil litigation … and dueling?” [Howard Wasserman, PrawfsBlawg]
- Shackled Philly priest died in prison, accused by “Billy Doe.” But how well does Doe’s story hold up? Questions about another big sex assault story from Rolling Stone/Sabrina Rubin Erdely that preceded their U.Va./”Jackie” tale [Ralph Cipriano/Newsweek, Robby Soave/Reason].
- “Oversimplification is at the heart of a Coates-style approach to the reparations issue.” [John McWhorter on an unexpected bid to get me to side with Bernie Sanders; more on reparations, Glenn Loury and (missed this earlier) Jonathan Blanks, Rare, 2014]
- Federal Trade Commission went after LabMD on data security complaint. Unlike so many targets, LabMD chose to fight the FTC. And then… [Steven Boranian, Drug and Device Law, earlier]
- Alan Dershowitz, Harvard lawprof, suing TD Garden over slip and fall in bathroom three years back [Boston Globe]
- “Harsh Sanction Proposed For Attorney Who Blogged About Probate Case” [Mike Frisch, Legal Profession Blog]
- Maryland veto sets back reform: “Governor Hogan, Civil Asset Forfeiture Is Inherently Abusive” [Adam Bates, Cato]
- “‘Vape’ bans have little to do with public health” [Jacob Grier, Oregonian in February]
- Academics prosper through expert witness work, part one zillion [Ira Stoll]
- Sounds good: call for civil procedure reform includes fact-based pleading, strict discovery limits, case-specific rules, and more [Jordy Singer, Prawfs, on recommendations from American College of Trial Lawyers Task Force on Discovery and Civil Justice and Institute for the Advancement of the American Legal System]
- Draft plan would arm FTC with vast power over data practices [James C. Cooper, Morning Consult, via @geoffmanne]
I’ve got a new post at Cato summarizing dramatic new testimony in the case (briefly noted here last year) of a laboratory company that got reported to the Federal Trade Commission for data breach — and drawn into a crushingly expensive legal battle — after it declined to buy data security services offered by a company with Homeland Security contracts. The battle has been raging for a while, with the nonprofit Washington, D.C. group Cause of Action representing LabMD and outlets like Mother Jones running coverage unsympathetic to its case.
Regulators wanna regulate, but leaving the search giant alone was the more rational antitrust course [Geoffrey Manne, Truth on the Market]
Last fall the editors of the Vermont Law Review were kind enough to invite me to participate in a discussion on food and product labeling, part of a day-long conference “The Disclosure Debates” with panels on environmental, financial, and campaign disclosure. Other panelists included Christine DeLorme of the Federal Trade Commission, Division of Advertising Practices; Brian Dunkiel, Dunkiel Saunders; George Kimbrell, Center for Food Safety; and David Zuckerman, Vermont State Senator and Farmer, Full Moon Farm.
The Federal Trade Commission acting simultaneously as lawmaker, judge, prosecutor, appellate panel, bailiff, clerk of the court, and many other public servants probably up to and including executioner [Gary Lawson via Steven Hayward, Power Line]
And goodbye to an Atlanta-based lab services business [Ed Hudgins, Atlas Business Rights Center] Law-enforcement-for-profit sidelight: according to owner Michael Daugherty, allegations of data insecurity at LabMD emanated from a private firm that held a Homeland Security contract to roam the web sniffing out data privacy gaps at businesses, even as it simultaneously offered those same businesses high-priced services to plug the complained-of gaps.