The MoginRubin blog offers informative analysis and insightful commentary on timely issues related to competition and antitrust actions, mergers, acquisitions and associated regulatory and legislative activity.
The Ninth Circuit Court of Appeals has, yet again, held that data scraping public websites is not unlawful. hiQ Labs, Inc. v. LinkedIn Corp., decided on April 18, affirms the court’s previous decision that plaintiffs may not rely on the Computer Fraud and Abuse Act (“CFAA”) to enjoin third parties from scraping data from their websites. Data scraping refers to the extraction of data from websites, whether public facing or not. Because that practice is not per se illegal, parties must rely on statutes like the CFAA to protect that data. That is ...
Companies seeking insurance coverage for losses from cyberattacks received good news this month. The New Jersey Superior Court for Union County found that Merck & Co., Inc.’s claim for coverage under their $1.75 billion insurance policy with ACE American Insurance Company (now The Chubb Corporation) is not barred by the policy’s war exclusion clause. Merck successfully asserted their expectation that the exclusion only bars claims resulting from “traditional forms of warfare.” This case sends a strong signal from the judiciary to carriers: ...
The Seventh Circuit U.S. Court of Appeals has certified a question to the Illinois Supreme Court over the accrual of claims under the Illinois Biometric Information Privacy Act (BIPA). The question, posed by the court in Cothron v. White Castle Systems, Inc., reads: “Do section 15(b) and 15(d) claims accrue each time a private entity scans a person’s biometric identifier and each time a private entity transmits such a scan to a third party, respectively, or only upon the first scan and first transmission?” The case was brought by an employee ...
A quick recap of recent antitrust-related developments in semiconductors, real estate, college sports, insurance brokerage, digital advertising, agriculture, health data privacy, retail, automotive manufacturing, and defense contracting, plus a change that all but guarantees more antitrust enforcement activity from the FTC. Broadcom’s Three-Chip Monopoly Draws FTC Charges, Consent Decree FTC has charged leading chipmaker Broadcom with illegally monopolizing markets via exclusive dealing for semiconductor components necessary to deliver ...
A biometric information privacy protection bill introduced in the New York Assembly this month is pending in that body’s Consumer Affairs and Protection Committee as of Jan. 21, 2021. Introduced by 17 Democrats and seven Republicans, the bill would require private entities storing biometric identifiers or biometric information to develop written policies establishing a retention schedule and guidelines for permanently destroying the data “when the initial purpose for collecting or obtaining such identifiers or information has been satisfied or ...
This is especially true in antitrust, where industries and markets undergo constant change brought about by innovation and changing consumer behavior. Confronted with ever evolving commercial circumstances, the courts face a constant struggle to keep up. With the filing of the antitrust cases against the Facebook “monopoly” by the Federal Trade Commission and 47 state attorneys general, U.S. antitrust faces one of its most significant tests since the case of U.S. v. Microsoft, now 20 years old. In the intervening decades, the Internet has ...
Jonathan Rubin, Jennifer M. Oliver
December 10, 2020Facebook’s acquisitions of one-time rivals Instagram in 2012 and WhatsApp in 2014 drew a great deal of criticism from pro-competition experts. And now, just when the government was poised to revisit those deals with a fresh round of litigation, the transition to a new presidential administration has stalled the suit. State and federal investigators had been preparing to bring antitrust charges against Facebook that would challenge the social platform company’s acquisitions, alleging the deals helped create an anti-competitive powerhouse that ...
News of a data breach at Dickey’s Barbeque broke in October 2020, revealing that the payment card information of three million customers’ had been stolen and was being sold on the digital black market. MoginRubin filed a class action complaint in federal court on behalf of consumers on Nov. 9, 2020, saying the popular restaurant chain failed to maintain reasonable controls and systems to protect the personal identifying information they collect from customers. Dickey’s only learned of the hack from third-parties 16 months after the hack began. ...
In late May 2020 by online stationery and crafts company Minted disclosed that it had suffered a breach that compromised millions of consumers’ private information — including passwords. Consumers may find indications on their credit reports that their data is being sold illegally via the online black market, commonly called The Dark Web. MoginRubin filed a class action complaint in federal court on behalf of affected consumers on June 11, 2020, alleging violations of the California Consumer Privacy Act. Because Minted failed to take ...
MoginRubin LLP, Jennifer Oliver
December 02, 2020In its 56-page Feb. 13 report, the GAO listed three issues that should be considered: Which agency or agencies should oversee Internet privacy. What authorities an agency or agencies should have to oversee Internet privacy, including notice-and-comment rulemaking authority and first-time violation civil penalty authority. How to balance consumers’ need for Internet privacy with industry’s ability to provide services and innovate. The Federal Trade Commission, the lead agency when it comes to Internet privacy, has not issued privacy regulations ...
By Jonathan Rubin The case involves questions "on the frontier edges" of U.S. antitrust law, according to the judge overseeing it. It is a legal battle between a $4 billion company (Epic Games, Inc.) and a $260 billion company (Apple, Inc.) in a market that's valued at $160 billion globally. At the center of the legal battle is the distribution of a digital one: a mobile application played by hundreds of millions of gamers on billions of devices around the world. It's no small matter, and Apple has scored a temporary victory in the suit, which ...
At a conference earlier this year on the Committee on Foreign Investment in the United States, or CFIUS, Assistant Treasury Secretary Thomas P. Feddo spoke with pride of the Committee’s increased funding, jurisdiction, expenditures, and more aggressive review activities. Feddo began the speech by detailing how CFIUS has implemented the 2018 Foreign Investment Risk Review Modernization Act, or FIRMMA, which expanded its jurisdiction and increased its funding. The Committee has invested in new IT infrastructure and personnel, and since May of ...
Dan Mogin, Jonathan Rubin, Jennifer M. Oliver, and Timothy Z. LaComb
October 15, 2020'Apple wanted us out of the App Store.' In January 2018 Apple investors complained publicly about the lack of parental controls on their popular devices. At one point even CEO Tim Cook expressed concern about the addictive nature of social media. Vancouver-based app entrepreneur Justin Payeur saw this as validation for the Boomerang Parental Control app he was developing. What is really needed, apparently, is an app to move apps through the Apple Store app approval process. Reasons for rejecting and requiring changes to the app were numerous, ...
While rare, this use of CFIUS powers may be a harbinger. Making good on his threats and citing national security risks, President Donald J. Trump signed an executive order on Friday, Aug. 14, 2020, demanding the unwinding of a Chinese company's acquisition of what would become TikTok, the short-form video-sharing-app sensation. This begins the unspooling of Beijing-based ByteDance Ltd.'s $1 billion acquisition of Shanghai-based Musical.ly in 2017, the predecessor to TikTok. ByteDance, which is incorporated in British territory in the Cayman ...
On Feb. 24, 2020, the Seventh Circuit U.S. Court of Appeals revived refusal-to-deal and tying claims brought against Comcast Corp. by Viamedia Inc. The case drew significant attention from antitrust practitioners given its potential impact on the viability of refusal-to-deal claims brought under Section 2 of the Sherman Act, which has long been the source of debate among antitrust practitioners. Comcast recently said it will ask the Supreme Court to review the Seventh Circuit’s decision. Photo by Cupcake Media on Unsplash Background Cable ...
Jonathan Rubin, Timothy Z. LaComb
June 16, 2020Driven by competitive pressure and pandemic-related losses, Uber Technologies Inc. has expressed its intention to acquire competitor Grubhub Inc. to improve its position in the digital food-delivery market, where its Uber Eats service lost ground in 2019. A group of Democratic lawmakers says this is a “troubling,” opportunistic, and anti-consumer move that U.S. antitrust law enforcers should watch closely. Photo by Kai Pilger on Unsplash Sen. Amy Klobuchar of Minnesota, former presidential candidate and senior member of the Senate Antitrust ...
Antitrust law doesn't take a back seat to bankruptcy. While bankruptcy is no one's idea of a dream, the beauty of the U.S. Bankruptcy Code is that it makes a business failure less of a nightmare for debtors and creditors alike. Litigation is stayed. Debts are put on hold. Assets of the estate may be purchased -- once certain conditions are met -- "free and clear."But, like anything, especially when it comes to law, details are a tricky thing. That applies especially to the nuanced practice of antitrust law. Are court-ordered asset sales under ...
Live Nation Threatens Anyone Who Doesn’t Play Along, Plaintiffs Allege Concert-goers tired of paying “supracompetitive fees” on ticket purchases from Ticketmaster LLC filed a class action against the company and its parent, promoter Live Nation Entertainment, Inc., in U.S. District Court for the Central District of California on April 28 for abusing its more than 70% share of the primary ticketing market (i.e. where tickets are initially sold) for major concerts. The merged companies are also aggressively deploying anticompetitive tactics in ...
Big Tech mergers make big headlines, but there is much more to a deal than how much money changes hands. More important questions need to be answered, such as how much future innovation might be lost, how much healthy competition will be eliminated, and what volumes of consumer data will suddenly be controlled by one or only a handful of companies. Some lower-cost acquisitions fly under the radar of antitrust law enforcement agencies. But should they? Criticized for ignoring “killer acquisitions” and going too easy on Big Tech – approving more ...
The U.S. Treasury Department’s final regulations, giving it more power to scrutinize any national security risks that may arise from deals between U.S. and foreign companies, are scheduled to go into effect this week, Feb. 13, 2020. The regs implement the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) and provide the interagency Committee on Foreign Investment in the United States (CFIUS) broader authority over certain investments and real estate transactions. Critics say the regs will change cross-border M&A deal-making ...
Claiming Comcast Corp. is using its significant buying power and ambitious nationwide acquisition strategy to dominate the lucrative regional sports network industry, Altitude Sports & Entertainment has sued the cable colossus in a Colorado federal court for Sherman Act and Colorado Antitrust Act violations. Altitude alleges Comcast is deploying “predatory” negotiation tactics to drive it out of business and then raise consumer prices once competition is eliminated. With so much buying muscle in the Rocky Mountain region, Comcast is a ...
You have to give Google credit. It’s no quitter. Despite pressure in the United States and Europe that might tell other companies to take a breath, Google took another in a series of steps to collect and leverage individuals’ healthcare data. In a deal valued at $2.1 billion, the company has entered into a definitive agreement to acquire Fitbit, Inc., the maker of popular health-tracking device wearables. This deal is yet another one that challenges the conventional analysis of what might constitute an anticompetitive merger in the context of ...
Reuters broke the story that the Treasury Department’s Committee on Foreign Investment in the United States (CFIUS) is conducting a national security review of the owners of TikTok, a social media video-sharing platform that claims a young but formidable U.S. audience of 26.5 million users. CFIUS is engaged in the context of TikTok owner ByteDance Technology Co.’s $1 billion acquisition of U.S. social media app Musical.ly two years ago, a deal ByteDance did not present to the agency for review. Meanwhile, U.S. legislators are concerned about ...
Moderator & Speaker: Daniel J. Mogin | Managing Partner, MoginRubin LLP Speakers: Jennifer M. Oliver, CIPP/US | Partner, MoginRubin LLP Thomas N. Dahdouh | Director, Western Region, Federal Trade Commission Franklin M. Rubinstein | Partner, Wilson Sonsini Goodrich & Rosati Randi W. Singer, CIPP/US, CIPT | Partner, Weil, Gotshal & Manges Contributor: Dina Srinivasan | Independent Researcher & Author of The Antitrust Case Against Facebook Dina was unable to present but we thank her for her content contributions. Highly publicized ...
California Governor Gavin Newsom has signed several amendments to the California Consumer Privacy Act of 2018. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. You can read MoginRubin Partner Jennifer M. Oliver's take on the changes in her Oct. 10 post, titled CCPA Changes Sent to Governor’s Desk as January Effective Date Draws Closer and Compliance Costs Loom Large. Going into ...
Several amendments to the California Consumer Privacy Act of 2018 are headed to Gov. Gavin Newsom’s desk. Issues range from the timing of employer disclosure requirements to data gathered and used in consumer identity verification, vehicle recalls and warranties, consumer credit checks, and business due diligence work. One bill, which attempted to address the non-discriminatory provisions of the CCPA and its potential impact on sellers’ popular customer rewards programs, didn’t make it out of the Senate. Going into effect in January and still ...
September 30, 2019, was a big day for college athletics. Alongside Lakers’ star LeBron James (who ironically skipped college), California Governor Gavin Newsom signed the Fair Pay to Play Act (FPTPA), which permits collegiate athletes in California to profit from the use of their names, images and likenesses (NILs) beginning in 2023. The governor said “colleges and universities reap billions from these student athletes’ sacrifices and success but block them from earning a single dollar. That’s a bankrupt model — one that puts institutions ...
Timothy Z. LaComb, Jennifer M. Oliver
October 05, 2019While Facebook is under assault from multiple agencies and branches of government in the U.S. and Europe, it received a little good news from Germany, at least for now. The Higher Regional Court in Düsseldorf on Aug. 26 suspended a German cartel office ruling that barred the company from using data it scrapes from the web and, unless users consent, data from its Instagram and WhatsApp platforms. The Federal Cartel Office (FCO) – or the Bundeskartellamt in German – had said Facebook uses its restrictive user agreement to dominate the German ...
Google says cookies are good. They are critical to generating advertising revenue and they help the company improve its product from functionality and privacy perspectives. Competing search engines do more to give users control over how these tiny tracking files monitor them. In April Google said it would move in that direction. It has since come out strongly against their complete elimination, however, arguing that it would be bad for privacy. Without cookies, Google says, more risky tracking methods will proliferate. This increasingly heated ...
Mandatory arbitration clauses in California just became a lot less mandatory. The Ninth Circuit U.S. Court of Appeals handed consumers in three unrelated cases a victory on June 28, saying they may proceed with litigation of their claims against an appliance rent-to-own company, a cellular phone service, and an internet-cable company despite the existence of mandatory arbitration clauses in their contracts. The decision is being hailed by consumer and employee rights advocates who say the proliferation of mandatory arbitration clauses has been ...
Jennifer M. Oliver, Timothy Z. LaComb
July 09, 2019Maine -- Governor Janet Mills signed the state’s tough new consumer privacy act into law June 6, requiring internet providers to obtain a consumer’s express consent before using, selling or distributing their personal information. Hailed by some as the strictest privacy law in the U.S., technology and communications companies, including Verizon and AT&T, testified that it may be in violation of Federal Communications Commission regulations, the First Amendment, and the Interstate Commerce Clause. LD 946, which takes effect July 1, 2020, ...
Jennifer M. Oliver, Nicole Ambrosetti
June 14, 2019The newly proposed New York Privacy Act, S5642, would give consumers substantial control over the use of their personal data, such as the right to demand review, corrections and/or deletions of their private information, and the authority to bring civil actions against companies. The tech industry immediately called the proposed law “unworkable.” Proposed by state Senator Kevin Thomas, the bill would require companies to “disclose their methods of de-identifying personal information, to place special safeguards around data sharing and to allow ...
Jennifer M. Oliver, Nicole Ambrosetti
June 07, 2019The line of politicians, regulators, and legislators in the U.S. and abroad expressing serious concerns about the market power held by big technology companies seems to grow longer by the day. This week, U.S. House of Representatives Antitrust Subcommittee Chairman David N. Cicilline (D-RI) announced a bipartisan investigation, saying the "market power in digital markets presents a whole new set of dangers" for the U.S., both politically and economically. "After four decades of weak antitrust enforcement and judicial hostility to antitrust ...
The committee has been playing a bigger role on the global M&A stage, figuring prominently in the U.S.-China trade war and putting the breaks on some giant acquisitions. The Committee on Foreign Investment in the United States (CFIUS) is authorized to review -- and block, if necessary -- transactions involving foreign investment to determine whether they threaten national security. The committee operates pursuant to Section 721 of the Defense Production Act of 1950, authorizing the president to suspend or prohibit transactions. The ...
The Appropriations Committee of the California Senate on May 17 halted efforts to add to the California Consumer Protection Act (CCPA) a private right of action that would have allowed individuals to sue businesses directly for violations of the law's privacy-related rights. The expansion was proposed via SB 561 which was supported by the state's Attorney General's office and privacy rights groups, and opposed by business groups. The CCPA still allows individual consumers to sue for certain types of data breaches, but leaves enforcement of ...
Companies will want to know of the often similar but frequently very different requirements created by the California Consumer Privacy Protection Act of 2018 (CCPA) and the European Union’s Global Data Protection Regulation (GDPR). Two things are certain: first, if you didn’t know, the data privacy protection landscape is changing rapidly – probably too fast for many companies covered by these laws – and, second, failure to comply with their provisions will result in significant financial liability. The GDPR went live a year ago on May 25, ...
On Friday, April 12, 2019, Senator Edward J. Markey (D-MA) introduced the Privacy Bill of Rights Act "in the wake of a series of revelations about myriad companies sharing consumers’ personal information without their consent, as well as unauthorized breaches of the data of hundreds of millions of consumers," a statement issued by the senator's office reads. The law would establish rules for both online and offline companies and ban the use of personal information for harmful, discriminatory purposes, such as housing and employment ...
SACRAMENTO -- April 10, 2019 -- The California Senate Standing Committee on Judiciary yesterday voted 5-3 in support of SB 561 which would expand the private right of action under the California Consumer Protection Act (CCPA) beyond damages for data breaches. The bill would also remove the 30-day cure period for Attorney General enforcement actions and remove the AG’s obligation to provide compliance opinions. The bill now moves to the Senate Standing Committee on Appropriations. The hearing on SB 561 lasted for several hours yesterday during ...
The landmark California Consumer Privacy Act of 2018 granted consumers new rights to protect themselves with respect to the collection and use of their private personal information. They will soon have more transparency in the collection and use for a variety of data types. Social Security Numbers and drivers’ licenses and passports are off limits. Data about what people buy, what they search, where they go, and where they work all fall within the scope of the law. Nor may businesses profile consumers based on private information and may not ...
Mississippi Attorney General Jim Hood told CNBC on Monday, March 18, that he is developing his antitrust case against Google similar to the one brought against Microsoft in the 1990s. According to CNBC, he also intends to address the privacy policies of Google parent company, Alphabet. If it seems like everyone everywhere is pursuing Google and other tech giants, it’s because they are. Hood is just one of the state attorneys general going after tech companies, and the EU Commission has hit Google with three fines in three years totaling $9.4 ...
Bipartisan legislation to improve the cybersecurity of Internet-connected devices was introduced March 11 in both the Senate and the House of Representatives. The legislation -- The Internet of Things (IoT) Cybersecurity Improvement Act of 2019 -- would require that devices purchased by the U.S. government meet minimum security requirements. The legislation was introduced in the Senate by U.S. Sens. Mark R. Warner (D-VA) and Cory Gardner (R-CO), co-chairs of the Senate Cybersecurity Caucus, along with Sens. Maggie Hassan (D-NH) and Steve ...
In a move that could redefine how 2.6 billion people use Facebook Messenger and Facebook’s acquired WhatsApp and Instagram apps, The New York Times reported on Jan. 25 that Facebook CEO Mark Zuckerberg plans to integrate the platforms. The announcement turned up the volume on antitrust and privacy warnings directed at the social media giant. The Times cited unnamed sources involved in the project who said the apps will continue as stand-alone services, but their “underlying technical infrastructure will be unified” so people can chat across ...
Sign up to start receiving our blog posts straight to your inbox.
Check your inbox for details about your MoginRubin Blog subscription.
