Litigation

Subscribe to Litigation via RSS

In a novel interpretation of the Federal Trade Commission (FTC) Act, the U.S. District Court for the District of Delaware recently held in FTC v. Shire ViroPharma that the FTC had failed to plead the facts necessary to invoke its authority to sue for permanent injunction in federal court because it did not allege an ongoing or imminent violation of the FTC Act. This ruling could broadly impact the FTC’s authority to litigate cases in federal court for past violations of the FTC Act and prevent the FTC from seeking permanent injunctive relief in federal court unless the defendant is currently violating, or is about to violate, the act.

Factual Background

The FTC had brought suit against Shire for anti-competitive use of the U.S. Food and Drug Administration’s (FDA’s) citizen petition process to delay generic competition. The FTC alleged that the company exploited the FDA’s petition process to an extraordinary degree, submitting more than 46 regulatory and court filings. The company’s attempts to delay competition were ultimately unsuccessful, as Shire lost its legal challenges to the FDA, and the company was no longer engaged in the practice at the time the FTC’s complaint was filed. Nevertheless, the FTC’s complaint alleged that Shire had succeeded in delaying generic entry at great cost to consumers and demanded relief.
Continue Reading Federal Court Challenges FTC’s Litigation Authority in FTC v Shire ViroPharma

Let’s face it: The residential phone line is on the verge of suffering the same fate as the 8-track tape. Anyone who doesn’t know what an 8-track tape is most assuredly uses a cell phone—and only a cell phone—to communicate. Email takes too long. And younger generations don’t even use the actual phone part of their cell phones.

The reality is that if you want to communicate with a very large segment of the U.S. population, you have to text. This explains why everyone is doing it. Doctors, dentists, veterinary practices, hair salons, airlines, car dealerships—businesses that make appointments—all send text reminders. Schools notify parents of school cancellations by texts. Hotels offer “virtual concierge” services entirely by texts. Retailers offer special discounts via texts. Should your business jump on the text message bandwagon? Maybe. The reward is high, but so is the risk.Continue Reading To Text or Not to Text? That Is the Question

On November 29, 2017, the U.S. Court of Appeals for the Ninth Circuit joined the Third Circuit in narrowly defining “personally identifiable information” under the Video Privacy Protection Act (VPPA), holding in Eichenberger v. ESPN that the disclosure of a unique device identifier does not violate the act.1

The VPPA was passed in 1988 in response to the Washington City Paper obtaining and publishing the video rental history of U.S. Supreme Court nominee Robert Bork.2 The act was intended “to preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.”3 To that end, the VPPA creates a private cause of action against a “video tape service provider”4 who “knowingly discloses … personally identifiable information.”5 The statute defines “personally identifiable information,” as “information which identifies an individual as having requested or obtained specific video materials or services from a video tape service provider.” Violators can be subject to statutory damages, punitive damages, and other penalties.6Continue Reading Ninth Circuit Narrowly Defines “Personally Identifiable Information” Under the VPPA

In November 2017, Judge Edward J. Davila dismissed a major multidistrict litigation accusing Facebook of unlawfully tracking users’ browsing activity across websites while they were signed out of their accounts.1 The plaintiffs originally asserted several common law, tort, and statutory claims. Judge Davila dismissed most of those claims pursuant to earlier motions, leaving only the plaintiffs’ breach of contract claims intact.
Continue Reading Judge Dismisses Facebook Web-Tracking MDL