Legal Library: Cases and Proceedings

Yellowstone Capital, a provider of merchant cash advances, will pay more than $9.8 million to settle Federal Trade Commission charges that it took money from businesses’ bank accounts without permission and deceived them about the amount of financing business owners would receive and other features of its financing products.

Merchant cash advances are a form of financing in which a company provides money to a small business up front in exchange for a larger amount repaid through daily automatic payments. In this case, the FTC alleged that Yellowstone and its owners continued withdrawing money from businesses’ bank accounts for days after their balance had been repaid. The complaint alleged that these unauthorized withdrawals left businesses without needed cash and that any refunds from the company could take weeks or months.

The Federal Trade Commission is sending 7,731 checks totaling more than $9.7 million to small businesses who were harmed by Yellowstone Capital, a merchant cash advance company that withdrew money from their bank accounts without permission.

The FTC along with law enforcement agencies from six states, sued Frontier Communications alleging that the company did not provide many consumers with Internet service at the speeds it promised them, and charged many of them for more expensive and higher-speed service than Frontier actually provided.

Medical device company Boston Scientific Corp. agreed to divest certain assets to Varian Medical Systems to settle Federal Trade Commission charges that Boston Scientific’s proposed $4.2 billion acquisition of medical equipment and pharmaceutical supplier BTG plc would violate federal antitrust law. According to the complaint, Boston Scientific’s acquisition of BTG would harm consumers in the U.S. market for drug eluting beads, or DEBs, which are microscopic beads used to treat certain liver cancers. Interventional radiologists use DEBs, combined with chemotherapy drugs, in a procedure called transarterial chemoembolization. Under the proposed settlement agreement, Boston Scientific was required to divest to Varian its DEB business, as well as its bland bead product line. Bland beads are used in another type of procedure to block the flow of blood to a liver tumor. On Feb. 18, 2022, the Commission announced modifications to the divestiture agreement with Boston Scientific Corp.

The Federal Trade Commission sued to block Lockheed Martin Corporation’s $4.4 billion proposed vertical acquisition of Aerojet Rocketdyne Holdings Inc, the last independent U.S. supplier of missile propulsion systems. Aerojet supplies advanced power, propulsion, and armament systems, which are critical components for the missiles made by Lockheed and other defense prime contractors. The  agency’s  complaint alleged that if the deal is allowed to proceed, Lockheed will use its control of Aerojet to harm rival defense contractors and further consolidate multiple markets critical to national security and defense. On Feb. 15, 2022, the Commission issued a statement regarding the parties’ decision to abandon the transaction.

The Federal Trade Commission filed a law enforcement action to block U.S. semiconductor chip supplier Nvidia Corp.’s $40 billion acquisition of UK-based semiconductor design firm Arm Ltd., the largest transaction in the history of the semiconductor industry. The FTC’s action seeks to preserve competition in markets for computer chips used in datacenters and in automotive advanced driver assistance systems. The complaint named Nvidia Corp., Arm Ltd., and Arm owner Softbank Group Corp. In February 2022, Nvidia Corp. announced that it had terminated its proposed acquisition of Arm Ltd. (Arm) from SoftBank Group Corp, and the Commission dismissed the complaint.

In 2020, Danaher Corporation agreed to divest assets to settle Federal Trade Commission charges that its proposed $21.4 billion acquisition of General Electric’s biopharmaceutical business, GE Biopharma, would violate federal antitrust law. Sartorius Stedim Biotech S.A. is the approved divestiture buyer. Sartorius agreed to obtain the Commission’s prior approval if it proposed to acquire Novasep Process SAS’s chromatography equipment business. On Feb. 1, 2022, the Commission announced that it granted Sartorius’s petition to proceed with this acquisition.

New York-based supermarket operators The Golub Corp., which owns the Price Chopper chain, and Tops Market Corp. have agreed to divest 12 Tops supermarkets to C&S Wholesale Grocers to settle Federal Trade Commission charges that their proposed merger would likely be anticompetitive in 11 local markets in New York and Vermont. In those markets, according to the complaint, without a remedy the merger is likely to allow the newly merged company to increase prices above competitive levels, unilaterally or by coordinating with competitors. The merger is also likely to diminish the combined company’s incentives to compete on quality and service in its stores. The Decision and Order requires Price Chopper and Tops to divest the 12 Tops stores and related assets to C&S on a rolling basis, beginning by Jan. 17, 2022, at a rate of two stores pe week for six weeks. On Jan. 24, 2022, the Commission announced the final consent agreement in this matter.

Richard Fairbank, CEO of Capital One Financial Corp., has agreed to settle Federal Trade Commission charges that his March 8, 2018, acquisition of Capital One Financial (COF) stock violated the Hart-Scott-Rodino Act. Under a negotiated settlement, Fairbank will pay a $637,950 civil penalty. The complaint alleges that in 2018,  Fairbank violated the notice and waiting period requirements of the HSR Act because he did not file before acquiring COF voting securities in excess of the $100 million filing threshold, as adjusted (which at the time was $168.8 million).

Following a public comment period, the Federal Trade Commission has approved a final order settling charges that three PET resin producers’ proposed $1.1 billion joint acquisition out of bankruptcy of an under-construction PET production facility would violate federal antitrust law.

Pharmaceutical and biologic manufacturers Bristol-Myers Squibb Company and Celgene Corporation agreed to divest Celgene’s Otezla, the most popular oral treatment in the United States for moderate-to-severe psoriasis, for $13.4 billion. The divestiture settled Federal Trade Commission charges that BMS’s proposed $74 billion acquisition of Celgene would violate federal antitrust law. Under the terms of the proposed consent order, the parties were required to divest Celgene’s worldwide Otezla business – including its regulatory approvals, intellectual property, contracts, and inventory – to Amgen, Inc. no later than 10 days after consummating the proposed acquisition. On Nov. 12, 2021, the Commission  announced that it has approved certain modifications to Bristol Meyers Squibb’s divestiture agreements.

The Federal Trade Commission has issued a complaint charging Broadcom with illegally monopolizing markets for semiconductor components used to deliver television and broadband internet services through exclusive dealing and related conduct. The complaint alleges that Broadcom illegally maintained its power in the three monopolized markets by entering long-term agreements with both OEMs and service providers that prevented these customers from purchasing chips from Broadcom’s competitors. The complaint also alleges that Broadcom leveraged its power in the three monopolized chip markets to extract from customers exclusivity and loyalty commitments for the supply of chips in the five related markets. Under the consent order, Broadcom must stop requiring its customers to source components from Broadcom on an exclusive or near exclusive basis.

Announced in June 2019 as part of a crackdown on illegal robocalls against operations around the country responsible for more than one billion calls, thisFTC complaint against five corporate and four individual defendants<, alleges that since at least 2017 the defendants have used a combination of illegal telemarketing robocalls, live telephone calls, text messaging, internet ads, emails, social media, and live events to market and sell consumers fraudulent money-making opportunities. The complaint charges the defendants, who operate from California, Colorado, New York, and Tennessee, with violating the FTC Act, the Telemarketing Sales Rule (TSR), or both, by making deceptive earnings claims through robocalls and other marketing techniques. In September 2021, The Federal Trade Commission sent checks totaling more than $1 million to consumers who were harmed by the company.

In 2018, the FTC and State of New York alleged that Campbell Capital, LLC and its owner, Robert Heidenreich, along with a number of other related companies, collected payments on debts from consumers that exceeded the amounts they allegedly owed. The defendants in the case were able to collect these funds by allegedly using tactics such as threatening that consumers would be arrested or served with legal papers at work if they did not make payments immediately. In some cases, according to the suit filed by the FTC and New York, the collectors pretended to be sheriff’s office employees or process servers when making such threats in phone calls with consumers.

Heidenreich agreed to a settlement with the FTC and New York in February 2020 that permanently banned him from the debt collection industry and required him to turn over funds to be used to provide refunds to affected consumers. In total, $19,826.64 will be sent to consumers, with each receiving a check for $32.88.

The Federal Trade Commission alleged that BlueHippo Funding, LLC, and BlueHippo Capital, LLC operated a deceptive computer financing scheme in violation of a federal court order.