Legal Library: Cases and Proceedings

The Federal Trade Commission is taking action against healthcare company Benefytt Technologies, two subsidiaries, former CEO Gavin Southwell, and former vice president of sales Amy Brady, for lying to consumers about their sham health insurance plans and using deceptive lead generation websites to lure them in. According to the FTC complaint, Benefytt also illegally charged people exorbitant junk fees for unwanted add-on products without their permission. The proposed court orders require Benefytt to pay $100 million in refunds and prohibit the company from lying about their products or charging illegal junk fees. Southwell and Brady will be permanently banned from selling or marketing any healthcare-related product, and Brady will also be banned from telemarketing.

The Federal Trade Commission imposed strict limits on JAB Consumer Partners’ future acquisitions of specialty and emergency veterinary clinics as a condition of JAB’s proposed $1.1 billion acquisition of specialty and emergency veterinary services provider SAGE Veterinary Partners, LLC. The Commission also alleged that the acquisition was likely to be anticompetitive in three geographic markets, ordering divestitures for various types of veterinary care in and around Austin, Texas, in and around San Francisco, California, and in and between Oakland, Berkeley, and Concord, California, and it ordered divestitures in these market.  On Aug. 5, 2022, the Commission announced the final consent agreement in this matter.

In March 2022, the FTC issued an administrative complaint against Denver-based HomeAdvisor, Inc. – a company affiliated with Angi – alleging it used a wide range of deceptive and misleading tactics in selling home improvement project leads to service providers since 2014, including small businesspeople operating in the “gig” economy.

Opendoor Labs Inc. promised to revolutionize home selling by offering to buy
consumers homes for market value while reducing transaction costs. It promised to provide speed and certainty to home sellers while saving them thousands compared to selling on the market or selling traditionally, as the company describes such sales.
Although Opendoor generally delivered on its promises to provide a faster and more certain transaction, it did not save consumers money. In fact, consumers who sold to Opendoor typically lost thousands compared to what they would have made on the market. Contrary to the company's marketing, it made submarket offers and had associated costs higher than in traditional sales. The company's marketing and the opacity of the transaction, however, left
consumers unaware that they had lost money.

The Federal Trade Commission took action against payment processing company First American Payment Systems and two of its sales affiliates for targeting small- and medium-sized businesses. The FTC alleges that the defendants made false claims about fees and cost savings to lure merchants, many of whom had limited English proficiency. Once merchants were enrolled, the defendants withdrew funds from their accounts without their consent, and made it difficult and expensive for them to cancel the service. Under a proposed federal court order, the defendants will be required to return $4.9 million to harmed businesses, stop their deception, and make it easier for merchants to cancel their services. 

The Federal Trade Commission sued apparel company Lions Not Sheep Products, LLC, and its owner Sean Whalen for falsely claiming that its imported apparel is Made in USA. According to the FTC’s complaint, the company added phony Made in USA labels to clothing and accessories imported from China and other countries. The FTC’s proposed order requires Lions Not Sheep and Whalen to stop making bogus Made in USA claims, come clean about foreign production, and pay a monetary judgment. On July 28, 2022, the Commission announced the final consent agreement in this matter.

The Federal Trade Commission authorized a lawsuit in federal court to block the proposed merger between virtual reality (VR) giant Meta and Within Unlimited, the VR studio that markets Supernatural, a leading VR fitness app. Formerly known as Facebook Inc., Meta sells the most widely used VR headset, operates a widely used VR app store, and already owns many popular VR apps, including Beat Saber, reportedly one of the best-selling VR apps of all time, which it markets for fitness use. The agency alleges that Meta’s proposed acquisition of Within would stifle competition and dampen innovation in the dynamic, rapidly growing U.S. markets for fitness and dedicated-fitness VR apps. A federal court complaint and request for preliminary relief was filed in U.S. District Court for the Northern District of California to halt the transaction.

The Federal Trade Commission and a group of 18 states sued national jewelry retailer Harris Jewelry to stop the company from cheating military families with illegal financing and sales practices. According to the complaint, the jewelry company deceptively claimed that financing jewelry purchases through Harris would raise servicemembers’ credit scores, misrepresented that its protection plans were not optional or were required, and added the plans to purchases without consumers’ consent. The complaint also includes a charge that the jewelry company violated the Military Lending Act, the FTC’s first action under this Act.

In 2019, the operators of a sweepstakes scam that appeared to target seniors agreed to forfeit a record $30 million in cash and assets and will be permanently banned from the prize promotion business under a settlement with the Federal Trade Commission. In July 2022, the FTC returned almost $25 million to consumers worldwide who were defrauded by the scheme.

As a condition of Hikma Pharmaceuticals PLC’s $375 million acquisition of generic drug services company Custopharm, Inc., the Federal Trade Commission required Custopharm’s parent company, private equity fund Water Street Healthcare Partners, LLC to retain and transfer Custopharm’s assets related to the corticosteroid drug triamcinolone acetonide, or TCA, to another company Water Street owns, Long Grove Pharmaceuticals, LLC. According to the complaint, absent a remedy, Hikma likely would have stopped developing its injectable TCA product, forestalling the increased price competition it would have brought to the market. Thus without this remedy, the acquisition likely would have harmed future competition in the U.S. market for injectable triamcinolone acetonide.

The Federal Trade Commission is taking action against grill maker Weber-Stephen Products, LLC, for illegally restricting customers’ right to repair their purchased products.The FTC’s complaint charges that Weber’s warranty included terms that conveyed that the warranty is void if customers use or install third-party parts on their grill products. Weber is being ordered to fix its warranty by removing illegal terms and recognizing the right to repair and come clean with customers about their ability to use third-party parts.

The Federal Trade Commission filed an administrative complaint and authorized a suit in federal court, to block Hackensack Meridian Health, Inc.’s proposed acquisition of Englewood Healthcare Foundation. The complaint alleges that the merged healthcare system would control three of the six inpatient general acute care hospitals in Bergen County, New Jersey. The proposed acquisition would eliminate close competition between Hackensack Meridian Health and Englewood in Bergen County and leave insurers with few alternatives for inpatient general acute care services, which encompass a broad range of inpatient medical and surgical diagnostic and treatment services that require an overnight hospital stay. On Aug. 4, 2021, the FTC obtained a preliminary injunction halting the acquisition while the administrative trial is underway. On March 22, 2022, the Third Circuit Court of Appeals affirmed the preliminary injunction. The administrative trial is scheduled to begin on April 22, 2022.

The Federal Trade Commission filed an administrative complaint alleging that Altria Group, Inc. and JUUL Labs, Inc. entered a series of agreements, including Altria’s acquisition of a 35% stake in JUUL, that eliminated competition in violation of federal antitrust laws. According to the complaint, this series of agreements involved Altria ceasing to compete in the U.S. market for closed-system electronic cigarettes in return for a substantial ownership interest in JUUL, by far the dominant player in that market. In an initial decision announced on Feb. 24, 2022, Chief Administrative Law Judge D. Michael Chappell dismissed the antitrust charges in the complaint.

The Federal Trade Commission filed an administrative complaint and authorized a federal court lawsuit to block Illumina’s $7.1 billion proposed acquisition of Grail—a maker of a non-invasive, early detection liquid biopsy test that can screen for multiple types of cancer in asymptomatic patients at very early stages using DNA sequencing. Illumina is the only provider of DNA sequencing that is a viable option for these multi-cancer early detection, or MCED, tests in the United States.

The complaint alleges the proposed acquisition will diminish innovation in the U.S. market for MCED tests, which could be used to detect up to 50 types of cancer. Most of these types of cancer are not screened for at all today, and the MCED test could save millions of lives around the world. The trial began on Aug. 24, 2021. On May 20, 2021, the FTC authorized staff to dismiss its federal court complaint for Preliminary Injunction and Temporary Restraining Order.

The Federal Trade Commission authorized an administrative complaint and a suit in federal court to block the acquisition of Saint Peter’s Healthcare System by RWJBarnabas Health, or RWJ, which is one of the largest hospital systems in New Jersey. The complaint alleges that in Middlesex County, in the central part of the state, the acquisition will harm competition for inpatient general acute care services, which are a broad range of essential medical and surgical diagnostic and treatment services that require an overnight hospital stay. The FTC’s federal court suit seeks a temporary restraining order and preliminary injunction to stop the deal and maintain the status quo while the agency pursues an administrative trial on the merits of the case. On June 14, 2022, the parties announced that they had abandoned the transaction.

The Federal Trade Commission has required Prince International Corp. and Ferro Corp. to divest three facilities used to make porcelain enamel frit, glass enamel, and forehearth colorants, as a condition of Prince’s parent company – American Securities Partners VII, L.P. – acquiring competitor Ferro Corp. for $2.1 billion.  According to the complaint, the acquisition as proposed likely would allow the merged firm to unilaterally raise prices for porcelain enamel frit in the North American market, and for forehearth colorants in the world market. It  also would eliminate Prince as an independent competitor in the world market for glass enamel, increasing the likelihood of coordination between the merged firm and its largest competitor, Fenzi Holdings SPV S.p.A. On July 5, 2022, the Commission announced the final consent agreement in this matter.

In March 2022, the FTC announced that two Texas-based companies and their owner are banned from advertising or selling dietary supplements, and from making claims that their products treat, cure, or reduce the risk of disease, under a proposed settlement with the Federal Trade Commission. The agency announced final approval of the order in June 2022.