Legal Library: Cases and Proceedings

The Federal Trade Commission and the State of Illinois are taking action against Napleton, a large, multistate auto dealer group based in Illinois, for sneaking illegal junk fees for unwanted “add-ons” onto customers’ bills and for discriminating against Black consumers by charging them more for financing. Napleton will pay $10 million to settle the lawsuit brought by the FTC and the State of Illinois, a record-setting monetary judgment for an FTC auto lending case.  The Federal Trade Commission is sending payments totaling more than $9.8 million to consumers who were harmed by Illinois-based Napleton Automotive Group’s junk fees and discriminatory practices.

The Federal Trade Commission has taken action against a for-profit medical school in the Caribbean and its Illinois-based operators, alleging they deceptively marketed the school’s medical license exam test pass rate and residency matches to lure prospective students. The school and its operators are also charged with violating the Holder Rule, which preserves rights for injured consumers, and the Credit Practices Rule, which protects consumers in credit contracts. The $1.2 million judgment against Saint James School of Medicine and its operators will go toward refunds and debt cancellation for students harmed by the deceptive marketing.

The Federal Trade Commission sued Electrowarmth Products, LLC and its owner, Daniel W. Grindle, alleging that they falsely claimed the heated fabric mattress pads they sell for truck bunks were made in the USA. The FTC charged Grindle and Electrowarmth with violating the Textile Act and the Federal Trade Commission Act. According to the complaint, Grindle and Electrowarmth violated these acts by labeling and advertising the origin of the textiles used in their products as the United States, when these textile fiber products were wholly imported from China. The proposed order prohibits Grindle and Electrowarmth from making any country-of-origin claim about a product or service unless the claim is not misleading and they have a reasonable basis that substantiates their claim. It also requires Grindle and Electrowarmth to make certain disclosures about the country of origin of any product subject to the Textile Fiber Products Identification Act, and to provide compliance reports. The FTC announced approval of the final order in October 2022.

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.

Restaurant chain owner and investment fund operator Biglari Holdings Inc. will pay a $1.4 million civil penalty to settle charges that two acquisitions it made on March 26, 2020 of shares of restaurant operator Cracker Barrel Old Country Store, Inc. violated the Hart-Scott-Rodino Act. According to the complaint, these two acquisitions, together with Biglari’s prior holdings of Cracker Barrel, caused it to exceed an HSR filing threshold, triggering its obligation to file an HSR Form and wait before completing the acquisition. Failing to do so violated the HSR Act.

San Juan IPA, Inc., a physicians’ independent practice association operating in northwestern New Mexico, agreed to settle Commission charges that it orchestrated and carried out agreements among its member doctors to set the price that they would accept from health plans, to bargain collectively to obtain the group’s desired price terms, and to refuse to deal with health plans except on collectively determined price terms. According to the complaint, the effect of this conduct was higher prices for medical services for the area’s consumers. The consent order prohibits the association from collectively negotiating with health plans on behalf of its physicians and from setting their terms of dealing with such purchasers. This consent involves 120 physicians who make up about 80 percent of the doctors practicing independently in the area of Farmington, New Mexico.

San Juan IPA, Inc., an independent physician association in Farmington, New Mexico, has agreed to pay a $263,000 civil penalty to the FTC to settle allegations that it violated a 2005 order. The 2005 case alleged that San Juan IPA orchestrated agreements among competing member physicians to coordinate joint pricing, collectively negotiated contracts with payors on behalf of members, and refused to deal with payors except on collectively determined price terms.

To remedy these allegations, the 2005 order prohibited San Juan from, among other things, entering into, maintaining, enforcing, or facilitating any agreement or understanding among any physicians (1) to negotiate on behalf of any physician with any payor, (2) to deal, refuse to deal, or threaten to refuse to deal with any payor, (3) regarding any term upon which any physician deals with a payor, including price terms, and (4) not to deal individually with any payor or not to deal with a payor except through the IPA. The order also prohibited San Juan from attempting to engage in, or encouraging any person to engage in, any prohibited action.

The Federal Trade Commission filed suit against the operators of the online store Glowyy for failing to deliver on promises that they could quickly ship products like face masks, sanitizer, and other personal protective equipment (PPE) related to the coronavirus pandemic.

The lawsuit alleges that the company violated the FTC’s Mail, Internet and Telephone Order Rule (Mail Order Rule), which requires that companies notify consumers of shipping delays in a timely manner and give consumers the chance to cancel orders and receive prompt refunds.

In January 2022, New York City-based Vision Path, Inc., the online seller of direct-to-consumer Hubble lenses, agreed pay penalties and redress totaling $3.5 million to settle FTC charges that it violated the Contact Lens Rule in several ways, including by failing to obtain prescriptions and to properly verify prescription information, and by substituting Hubble lenses for those actually prescribed to consumers. The FTC also alleged the company violated the FTC Act when it failed to disclose that many reviews of Hubble lenses were not by unbiased consumers but were written by reviewers who were compensated for their reviews, and, in at least one instance, by one of its own executives.

In May 2021, the FTC filed a complaint against Kushly Industries LLC and its CEO, Cody Alt, for allegedly marketing products containing cannabidiol (CBD) using unsubstantiated health and establishment claims. According to the complaint Kushly sold a variety of CBD products to the public through its website, kushly.com, and social media platforms from January 2019 to August 2020. The FTC order announced at the same time as the complaint banned the company and Alt from the alleged illegal conduct. The Commission approved the final order in July 2021. In August 2022, the FTC announced it was returning almost $21,000 to defrauded consumers.

In September 2019, the FTC announced a complaint against the operators of two student loan debt relief schemes, and a financing company that assisted them, with bilking millions of dollars from consumers. The FTC alleged Manhattan Beach Ventures and Equitable Acceptance Corporation and Student Advocates Team, and the financing company that assisted them illegally charged upfront fees that the companies led consumers to believe went towards their student loans, and falsely promised that their services would permanently lower or even eliminate their loan payments or balances. On August 18, 2022, the FTC it was sending more than $822,000 back to defrauded consumers.

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.

A federal court has ordered Harris Jewelry to reopen its claims process and renotify consumers, most of whom are active duty servicemembers, to submit their claims for refunds. The court found Harris Jewelry violated its prior settlement with the Federal Trade Commission and a multistate group led by the New York Attorney General’s Office by prematurely shutting down the claims portal.

The new claims process is open for 33 days, starting November 18, 2024 and ending Saturday, December 21, 2024.  

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 required Medtronic, Inc. to divest a key subsidiary of Intersect ENT, Inc. as a condition of acquiring Intersect. Under the FTC consent decree, Instersect’s Fiagon subsidiary, which makes ear, nose, and throat navigation systems and balloon sinus dilation products, will be sold to Hemostasis, LLC. According to the complaint, without this divestiture, the acquisition would pose a threat to future competition in the United States for both ENT navigation systems and balloon sinus dilation products. On June 30, 2022, the Commission announced the final consent agreement in this matter.

In September 2019, the operators of a deceptive negative option scheme agreed to a court-ordered preliminary injunction temporarily barring them from a wide range of conduct.  The preliminary injunction stops the defendants from misleading consumers about supposedly “free trial” offers, enrolling them in unwanted continuity plans, billing them without their authorization, and making it nearly impossible for them to cancel or get their money back. In June 2022, the Commission announced it was returning $5.4 million to defrauded consumers.

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 Federal Trade Commission sued SPM Thermo-Shield, Inc., and its principals Peter J. Spiska, and George P. Spiska, alleging they make false or unsubstantiated R-value and energy savings claims about their architectural coatings products. In July 2020, the FTC sued four companies that sell paint products used to coat buildings and homes, alleging that they deceived consumers about their products’ insulation and energy-savings capabilities. In complaints filed in federal court, the FTC charged that the companies falsely overstated the R-value ratings of the coatings, making deceptive statements about heat flow and insulating power. The FTC announced a summary judgment ending the litigation in June 2022.