Legal Library: Adjudicative Proceedings

The Federal Trade Commission sued to block the largest proposed supermarket merger in U.S. history—Kroger Company’s $24.6 billion acquisition of the Albertsons Companies, Inc.—alleging that the deal is anticompetitive.

The Federal Trade Commission is acting against a large automotive dealer group, Asbury Automotive, for systematically charging consumers for costly add-on items they did not agree to or were falsely told were required as part of their purchase. The FTC also alleges that Asbury discriminates against Black and Latino consumers, targeting them with unwanted and higher-priced add-ons.

In an administrative complaint, the FTC alleges that three Texas dealerships owned by Asbury that operate as David McDavid Ford Ft. Worth, David McDavid Honda Frisco, and David McDavid Honda Irving, along with Ali Benli, who acted as general manager of those dealerships, engaged in a variety of practices to sneak hidden fees for unwanted add-ons past consumers. These tactics included a practice called “payment packing,” where the dealerships convinced consumers to agree to monthly payments that were larger than needed to pay for the agreed-upon price of the car, and then “packed” add-on items to the sales contract to make up that difference.

The Federal Trade Commission is taking action against tax preparation company H&R Block for unfairly deleting consumers’ tax data and requiring them to contact customer service when they downgrade to more affordable online products, and deceptively marketing their products as “free” when they were not free for many consumers. These practices cost consumers time and money.

The Federal Trade Commission moved to block Tempur Sealy International, Inc.’s (Tempur Sealy) proposed $4 billion acquisition of Mattress Firm Group Inc. (Mattress Firm).

The Commission issued an administrative complaint and authorized a lawsuit in federal court to block the acquisition, alleging that Tempur Sealy—the world’s largest mattress supplier and manufacturer—will have the ability and incentive to suppress competition and raise prices for mattresses for millions of consumers once it acquires Mattress Firm.

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.

In April 2023, the Commission issued an opinion and order reversing the Administrative Law Judge’s dismissal of the proceeding and requiring Illumina to divest Grail. In June 2023, Illumina petitioned the Fifth Circuit to review the Commission’s order and opinion, and the Fifth Circuit heard arguments in the case in September 2023.  

On December 15, 2023, the Fifth Circuit issued an opinion in the case finding that there was substantial evidence supporting the Commission’s ruling that the deal was anticompetitive. The Fifth Circuit vacated the Commission’s order and remanded it for further proceedings based on the standard the Commission applied when reviewing one aspect of Illumina’s rebuttal evidence. On December 17, 2023, Illumina then announced it would divest Grail.

The Federal Trade Commission authorized an administrative complaint against the proposed merger between Microsoft Corp. and Activision Blizzard, Inc., a video game developer that creates and publishes games such as Call of Duty, World of Warcraft, Diablo, and Overwatch. Microsoft sells the Xbox gaming console and also offers a video game subscription service called Xbox Game Pass, as well as a cloud-based video game streaming service. The agency alleges that the deal would enable Microsoft to suppress competitors to its Xbox gaming consoles and its rapidly growing subscription and cloud-gaming business. The Commission withdrew the matter from adjudication in July 2023, and returned it to adjudication on September 26, 2023.  The evidentiary hearing will commence 21 days after the issuance of the district court's decision in FTC v. Microsoft.  

The operators of a massive real estate investment coaching scheme face permanent bans and will pay approximately $12 million for consumer redress as part of a settlement in a lawsuit filed by the Federal Trade Commission and the Utah Department of Commerce Division of Consumer Protection (UDCP).

The FTC and UDCP alleged that Zurixx, LLC, its owners Cristopher Cannon, James Carlson, and Jeffrey Spangler, and a number of associated companies operated a real estate investment coaching scheme that sold live seminars and telephone coaching using false earnings claims that convinced tens of thousands of consumers to pay them thousands or tens of thousands of dollars.

The Federal Trade Commission is sending more than $12 million in refunds to consumers who paid Zurixx, LLC for a real estate investment training program that allegedly made empty promises about earning big profits by “flipping” houses.

The FTC filed a complaint against SuperGoodDeals.com, Inc. and its owner, Kevin J. Lipsitz, alleging that the defendants falsely promised consumers next-day shipping of facemasks and other personal protective equipment (PPE) to deal with the coronavirus pandemic. In addition, the FTC alleged that some of the other merchandise sold through the SuperGoodDeals website were falsely advertised as “authentic” or “certified.”

Kevin Lipsitz, who defrauded consumers by falsely promising “next day” shipping of facemasks and respirators to consumers at the height of the COVID-19 pandemic, will be banned from selling personal protective equipment (PPE) and be required to turn over more than $145,000 to the FTC.