Legal Library: Cases and Proceedings

In June 2020, the marketers of a low-level light therapy device (LLLT) called Willow Curve agreed to stop making allegedly deceptive claims that the device treats chronic, severe pain and associated inflammation, under a settlement with the FTC. 

In a complaint filed in federal court the FTC alleged that the marketers of Willow Curve promoted the device nationwide since 2014, touting it as a “smart” device that is “clinically proven,” even though they lack scientific evidence to support these claims. The order settling the complaint also requires two defendants to pay $200,000 each to the Commission. In August 2021, the FTC sent refunds totaling more than $350,000 to defrauded consumers.

In July 2021, the owners of a New Jersey-based company that sells septic tank cleaning products agreed to a permanent ban on telemarketing and will pay more than $1.6 million to settle FTC charges that the company and its telemarketer made illegal robocalls to consumers, including tens of millions of calls to numbers listed on the agency’s DNC Registry. In addition, the defendants will turn over a residential property as part of the settlement. The complaint names as defendants: Environmental Safety International, Inc. or ESI; ESI’s two officers, brothers Joseph Carney and Sean Carney; and their other brother Raymond Carney.

SLAC (also doing business as Aspyre), Navloan, Student Loan Assistance Center, and Adam Owens -- three California-based student loan debt relief companies and their owner -- have agreed to be permanently banned from the debt relief business in order to settle Federal Trade Commission charges that they falsely promised to lower or eliminate consumers’ student loans for an illegal upfront fee. The FTC also alleged that the companies and Owens failed to disclose that they paid consumers for positive Better Business Bureau (BBB) reviews.

Casey’s General Stores, Inc., Buck’s Intermediate Holdings, LLC, and Steven Buchanan agreed to divest retail fuel assets in local gasoline and diesel fuel markets across two states to settle Federal Trade Commission charges that Casey’s proposed acquisition would violate federal antitrust law. The complaint alleges that the acquisition as proposed would harm competition for retail sale of gasoline in seven local markets in Nebraska and Iowa. Under the terms of the proposed consent order, Casey’s is required to divest six retail fuel outlets, three Casey’s outlets and three Bucky’s outlets, to Western Oil II, LLC and its affiliate Danco II, LLC within 10 days after Casey’s completes the acquisition. On June 9, 2021 the Commission announced the final consent agreement in this matter.

Reckitt Benckiser Group plc has agreed to pay $50 million to settle Federal Trade Commission charges that it violated the antitrust laws through a deceptive scheme to thwart lower-priced generic competition to its branded drug Suboxone. According to the complaint, before the generic versions of Suboxone tablets became available, Reckitt and its former subsidiary Reckitt Benckiser Pharmaceuticals, now known as Indivior, Inc., developed a dissolvable oral film version of Suboxone and worked to shift prescriptions to this patent-protected film. Worried that doctors and patients would not want to switch to Suboxone Film, Reckitt allegedly employed a “product hopping” scheme where the company misrepresented that the film version of Suboxone was safer than Suboxone tablets because children are less likely to be accidentally exposed to the film product. Indivior has agreed to pay an additional $10 million to settle FTC charges. On May 10, 2021, the FTC announced that it sent nearly $60 million in payments to consumers who were victims of the scheme.

The FTC's administrative complaint against Impax charges that in 2010, Impax and Endo Pharmaceuticals Inc. illegally agreed that Impax would not compete by marketing a generic version of Endo’s Opana ER until January 2013. In exchange, Endo paid Impax more than $112 million.

Endo agreed to settle these charges in a stipulated order entered in federal court. See FTC v. Allergan plc, and Watson Laboratories, Inc. et al.

The Commission’s 2019 opinion held that the FTC staff had proven that the agreement between Impax and Endo Pharmaceuticals Inc. violated Section 5 of the Federal Trade Commission Act. The Commission’s opinion reversed Chief Administrative Law Judge D. Michael Chappell’s initial decision.

In April 2021, the U.S. Court of Appeals for the Fifth Circuit upheld the Commission’s opinion.

Wine and spirits maker E. & J. Gallo Winery has agreed to divest several product lines and remove certain others from its asset purchase agreement with competitor Constellation Brands, Inc. to settle Federal Trade Commission charges that their proposed $1.7 billion transaction would violate federal antitrust law. The complaint alleges that unremedied, the proposed acquisition would eliminate head-to-head competition between Gallo and Constellation and thereby was likely to substantially lessen competition in the United States for six types of wine-and-spirits products: entry-level on-premise sparkling wine, low-priced sparkling wine, low-priced brandy, low-priced port, low-priced sherry, and high color concentrates.The FTC announced approval of the final order in April 2021.

On October 21, 2019, the FTC announced it had halted the deceptive online marketing tactics of two companies and their principals, the first of which allegedly sold fake indicators of social media influence, and the second of which allegedly used fake product reviews posted by its employees on a well-known retail website. In the first case, Devumi, LLC and its owner and CEO, German Calas, Jr., agreed to settle the FTC’s first-ever complaint challenging the sale of fake indicators of social media influence. In the second case, cosmetics firm Sunday Riley Modern Skincare, LLC and its CEO agreed to settle an FTC complaint charging them with misleading consumers by posting fake reviews of the company’s products on a major retailer’s website, at the CEO’s direction, and by failing to disclose that the reviewers were company employees. The court entered the final order on October 22, 2019.

Pharmaceutical companies Pfizer Inc. and Mylan N.V. have agreed to divest assets and abide by other conditions to settle Federal Trade Commission charges that the proposed combination of Upjohn Inc. and Mylan N.V. will harm current or future competition in ten generic drug markets. The FTC’s complaint alleges that the proposed combination would harm current U.S. competition in seven product markets by reducing the number of existing suppliers, and that it would harm future U.S. competition in three additional product markets. The proposed consent order requires divestitures in all 10 markets.

The FTC issued an administrative complaint challenging the merger of two prosthetics manufacturers that are top sellers of prosthetic knees equipped with microprocessors. According to the FTC’s complaint, Otto Bock’s consummated acquisition of FIH Group Holdings (owner of Freedom Innovations) harmed competition in the U.S. market for microprocessor prosthetic knees by eliminating head-to-head competition between the two companies, removing a significant and disruptive competitor, and entrenching Otto Bock’s position as the dominant supplier. Microprocessor knees, which use microprocessors to adjust the stiffness and positioning of the joint in response to variations in walking rhythm and ground conditions, provide a stable platform for amputees. Compared to other products, microprocessor prosthetic knees reduce the risk of falling, cause less pain, and promote the health and function of the sound limb. In addition to issuing an administrative complaint, the Commission authorized agency staff to seek a temporary restraining order, preliminary injunction, and ancillary relief in federal court, should doing so be necessary to ensure the Freedom Innovations business remains viable and to preserve the Commission ability to order effective relief. On Dec. 1, 2020, the Commission announced approval for the divestiture of the Freedom assets.

The marketers of a dietary supplement called Synovia agreed to settle FTC charges by halting the deceptive tactics they allegedly used to mislead consumers into thinking Synovia could treat arthritis and alleviate joint pain. In December 2020, the Commission announced it was returning almost $775,000 to consumers who both the deceptively marketed product.

CoreLogic, Inc. agreed to settle FTC charges that its proposed $661 million acquisition of DataQuick Information Systems, Inc. from TPG VI Ontario 1 AIV L.P. would likely substantially lessen competition in the market for national assessor and recorder bulk data. The FTC’s proposed settlement order requires CoreLogic to license to Renwood RealtyTrac national assessor and recorder bulk data as well as several ancillary data sets that DataQuick provides to its customers. The order allows RealtyTrac to offer customers the data and services that DataQuick now offers and to become an effective competitor in the market.

In response to an FTC complaint, in April 2020, a California-based marketer of a supplement consisting mainly of Vitamin C and herbal extracts has agreed to a preliminary order barring him from claiming that it is effective at treating, preventing, or reducing the risk of COVID-19. Pending the resolution of a parallel administrative case, the proposed preliminary order also bars Marc Ching, doing business as Whole Leaf Organics, from claiming that three CBD-based products he sells are effective cancer treatments. The Commission approved the final administrative order in this case in October 2020.

In response to an FTC complaint, in April 2020, a California-based marketer of a supplement consisting mainly of Vitamin C and herbal extracts has agreed to a preliminary order barring him from claiming that it is effective at treating, preventing, or reducing the risk of COVID-19. Pending the resolution of a parallel administrative case, the proposed preliminary order also bars Marc Ching, doing business as Whole Leaf Organics, from claiming that three CBD-based products he sells are effective cancer treatments.

Arko Holdings Ltd. and Empire Petroleum Partners, LLC have agreed to divest retail fuel assets in local gasoline and diesel fuel markets across four states to settle Federal Trade Commission charges that Arko’s proposed acquisition of Empire would violate federal antitrust law. The Commission announced final approval of the consent order in October 2020.

In September 2016, nutritional supplement marketer NutraClick agreed to settle FTC charges that it lured consumers with “free” samples of supplements and beauty products and then violated the law by charging them a recurring monthly fee without their consent. Four years later, in September 2020, the FTC filed a complaint alleging the company and its two principals were continuing to deceptively market their products, in violation of the FTC order. The settlement order, announced simultaneously with the complaint, bans the defendants from negative option marketing and requires them to pay more than $1 million for consumer redress. 

A Florida-based company that has promoted its Isoprex supplement to older adults as a miracle cure for pain and joint inflammation has agreed to a settlement with the FTC that bars the company from continuing to make its unproven claims. In September 2020, the FTC announced it was sending refunds totaling more than $76,000 to consumers who bought the deceptively marketed product.

Under a settlement with the Federal Trade Commission announced in March 2020, the marketers of an electrical nerve stimulation device called Quell have agreed to pay $4 million and stop making deceptive claims that the device treats pain throughout the body when placed below the knee. They also will stop claiming the device’s efficacy is clinically proven and that it has been cleared by the FDA to treat pain throughout the body. In early September 2020, the FTC announced it was returning almost $3.9 million to defrauded consumers.

Pharmaceutical companies AbbVie Inc. and Allergan plc have agreed to divest assests to settle Federal Trade Commission charges that AbbVie's proposed $63 billion acquisition of Allergan would violate federal antitrust law. On Sept. 4, 2020, the Commission announced the final consent agreement in this matter.