Ron Lanton 1/25/25 Ron Lanton 1/25/25

Effects of the Federal Trade Commission's Repeal of Non-Compete Agreements on the Pharma Industry

In an interview with Associate Editor Donald Tracy, MA, Ron Lanton III, Esq., Partner, Lanton Law offers his thoughts on the recent Federal Trade Commission (FTC) repeal of non-compete agreements, and how it could effect the #pharma industry.

The interview can be viewedhere.

Ron Lanton 7/27/23 Ron Lanton 7/27/23

H.R. 3831: The AI Disclosure Act of 2023 Explained

H.R. 3831, the AI Disclosure Act of 2023, is a bill that would require companies that use artificial intelligence (AI) to disclose certain information about their use of AI. This information would include the purpose of the AI system, the data that the AI system is trained on, the algorithms that the AI system uses, and the potential risks and benefits of the AI system. The bill would also create a new agency within the Federal Trade Commission (FTC) to oversee the implementation of the law.

This bill is important because it would increase transparency and accountability in the use of AI. By requiring companies to disclose information about their use of AI, the bill would help consumers to understand how AI is being used and to make informed decisions about whether to use AI-powered products and services.

It is still too early to say whether H.R. 3831 will become law. However, the bill has generated a lot of interest and debate, and it is likely to continue to be a topic of discussion in the coming months.

If you are a stakeholder in the AI industry, you should be aware of H.R. 3831 and its potential implications for your business. Lanton Law’s technology section can help you to understand the bill and to help you develop a strategy to comply with looming regulatory oversight.

Contact Lanton Law today to learn more about how we can help you with your AI legal and policy needs.

Ron Lanton 6/17/22 Ron Lanton 6/17/22

FTC Takes Aggressive Policy Stance Against Drug Manufacturers and Pharmacy Benefit Managers (PBMs)

The Federal Trade Commission (FTC) has come out aggressively against both pharmaceutical manufacturers and pharmacy benefit managers (PBMs). The agency has released its policy statement seen here, announcing that the agency “will ramp up enforcement against any illegal bribes and rebate schemes that block patients’ access to competing lower-cost drugs.”

Here is what the FTC is specifically targeting in its policy statement:

Exclusionary rebates that foreclose competition from lower-cost medicines may constitute unreasonable agreements in restraint of trade under Section 1 of the Sherman Act; unlawful monopolization under Section 2 of the Sherman Act; or exclusive dealing under Section 3 of the Clayton Act.
Inducing prescription drug middlemen to place higher-priced drugs on formularies instead of lower-cost alternatives in a manner that shifts costs to payers and patients may violate the prohibition against unfair methods of competition or unfair acts or practices under Section 5 of the FTC Act.
Paying or accepting rebates or fees in exchange for excluding lower cost drugs may constitute commercial bribery under Section 2(c) of the Robinson-Patman Act, which prohibits compensating an intermediary to act against the interests of the party it represents in the transaction.

This follows the recently revealed PBM study by the FTC will officially examine the impact of vertically integrated PBMs on the access and affordability of prescription drugs. As part of this inquiry, the FTC will send compulsory orders to CVS Caremark; Express Scripts, Inc.; OptumRx, Inc.; Humana Inc.; Prime Therapeutics LLC; and MedImpact Healthcare Systems, Inc.

Lanton Law is a national boutique regulatory law and lobbying firm that focuses on healthcare/life science and technology. If you are an industry stakeholder with questions about the current landscape or if you would like to discuss how your organization’s strategic initiatives might be impacted by either Congress, regulatory agencies or legal decisions, contact us today.

Ron Lanton 12/15/21 Ron Lanton 12/15/21

Senator Wyden Requests FTC To Investigate Retail Pharmacy Market Consolidation

In a recent press release Senator Wyden (D-OR) has sent a letter to the Federal Trade Commission (FTC) to according to “investigate recent consolidations in Oregon’s retail pharmacy market to assess whether large national pharmacy chains and health plans have acted to make this market less competitive.”

“Wyden’s letter highlights ongoing industry dynamics that pose significant challenges to small, independent pharmacies. One particular practice known as direct and indirect remuneration, a form of retrospective fees imposed on pharmacies by pharmaceutical benefit managers (PBMs) has been cited as a particular challenge for these pharmacies to maintain healthy finances. According to a report by the Centers for Medicare and Medicaid Services (CMS), PBMs increased pharmacy DIR fees under Medicare Part D by 91,500 percent from 2010 to 2019.”

DIR fees have been something that the Senator has been monitoring. His press release states “In October, Wyden also urged the federal Centers for Medicare and Medicaid Services (CMS) to review pharmacy closures nationwide in the last five years with a focus on how fees imposed by Medicare Part D plans and middlemen known as pharmacy benefit managers are driving those closures.”

Lanton Law is a national boutique law and lobbying firm that focuses on healthcare/life sciences and technology. Our pharmacy practice has been helping pharmacies nationwide with operational issues, mergers and acquisitions, regulatory inquiries, audits, licensure, employment issues and contracting. Our lobbying efforts help pharmacies nationwide achieve improved business climates through carefully crafted legislation.

If you are an industry stakeholder with questions about the current landscape or if you would like to discuss how your organization’s strategic initiatives might be impacted by either Congress, regulatory agencies or legal decisions, contact us today.

Ron Lanton 10/14/21 Ron Lanton 10/14/21

Antitrust Legislation Targeting Merger Filing Fees Passes Senate

U.S. Senator Amy Klobuchar (D-MN), Chair of the Senate Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, and Senator Chuck Grassley (R-IA) who along with Senator Durbin (D-IL) as cosponsors have announced Senate passage of the Merger Filing Fee Modernization Act.

The bill which can be found here, proposes to “Promote antitrust enforcement and protect competition through adjusting premerger filing fees, and increasing antitrust enforcement resources.”

With a more aggressive FTC and a renewed emphasis on antitrust policy, commerce stakeholders should definitely pay attention to recent proposals on how to modify antitrust laws for the 21st century.

Lanton Law is a national boutique regulatory law and lobbying firm that focuses on technology and healthcare/life science. If you are an industry stakeholder with questions about the current landscape or if you would like to discuss how your organization’s strategic initiatives might be impacted by either Congress, regulatory agencies or legal decisions, contact us today.

Ron Lanton 10/14/21 Ron Lanton 10/14/21

Senator Markey (D-MA) and Representatives Castor (D-FL) and Trahan (D-MA) Urge FTC To Use Authority to Make Tech Companies More Accountable

According to Senator Markey’s press release Senator Markey and Representatives Castor and Trahan have sent a letter to the Federal Trade Commission, urging the agency to use its full authority—including its authority under Section 5 of the FTC Act—to ensure these companies comply with their new policies. The Age Appropriate Design Code (AADC) took effect in the U.K. this September and requires online services available to children and teens to meet 15 key children’s privacy standards, many of which are similar to legislative proposals to update Senator Markey’s 1998 law, the Children’s Online Privacy and Protection Act (COPPA), in the United States.

It is no secret that technology stakeholders should be mindful of additional regulatory and policy scrutiny. Lanton Law is a national boutique regulatory law and lobbying firm that focuses on technology and healthcare/life science. We continue to monitor the policy and legal developments around the FTC.

Ron Lanton 10/5/21 Ron Lanton 10/5/21

FTC Report to Congress on Privacy and Security

The Federal Trade Commission (FTC) last month issued the FTC Report to Congress on Privacy and Security.

What’s in the Report?

According to the agency “This report responds to the Joint Explanatory Statement accompanying the Consolidated Appropriations Act, 2021, P.L. 116-260, directing the Federal Trade Commission (“Commission” or “FTC”) to “conduct a comprehensive internal assessment measuring the agency’s current efforts related to data privacy and security while separately identifying all resource-based needs of the FTC to improve in these areas. The agreement also urges the FTC to provide a report describing the assessment’s findings to the Committees [on Appropriations of the House and Senate] within 180 days of enactment of this Act.”

Additionally, “The report first provides an overview of the FTC’s authority related to privacy and security, highlighting certain recent efforts in those areas. Second, it discusses priorities for improving the effectiveness of our efforts to protect Americans’ privacy. Third, it identifies areas in which we could use additional resources to further ensure Americans’ privacy is protected. Finally, it discusses the need for Congressional action on the FTC’s authority.”

Lanton Law is a national boutique regulatory law and lobbying firm that focuses on healthcare/life science and technology. We continue to monitor the policy and legal developments around the FTC.

Ron Lanton 6/17/21 Ron Lanton 6/17/21

Lina Khan Sworn in as FTC Chair

The Federal Trade Commission (FTC) released a June 15th press release announcing Lina Khan as the Chair of the FTC, with her term expiring on September 25, 2024. Ms. Khan was confirmed by the U.S. Senate on June 15, 2021.

Lanton Law has been monitoring the FTC for our technology and healthcare clients. This move may signal that the Biden Administration and Congress may take on a more aggressive role in antitrust policy. Technology stakeholders should take note.

Ron Lanton 4/28/21 Ron Lanton 4/28/21

Tech Stakeholders Alert: FTC Workshop on Dark Patterns

The Federal Trade Commission (FTC) has announced an April 29, 2021 virtual workshop to examine digital “dark patterns,” a term that has been used to describe a range of potentially manipulative user interface designs used on websites and mobile apps.

The Federal Trade Commission (FTC) announced an April 29, 2021 virtual workshop to examine digital “dark patterns,” a term that has been used to describe a range of potentially manipulative user interface designs used on websites and mobile apps.

“Bringing Dark Patterns to Light: An FTC Workshop” will explore the ways in which user interfaces can have the effect, intentionally or unintentionally, of obscuring, subverting, or impairing consumer autonomy, decision-making, or choice. For example, some sites sneak extra items into a consumer’s online shopping cart, or require users to navigate a maze of screens and confusing questions to avoid being charged for unwanted products or services.

Some of the topics the workshop will examine include:

how dark patterns differ from sales tactics employed by brick-and-mortar stores;
how they affect consumer behavior, including potential harms;
whether some groups of consumers are unfairly targeted or are especially vulnerable;
what laws, rules, and norms regulate the use of dark patterns; and
whether additional rules, standards, or enforcement efforts are needed to protect consumers.

The FTC will be seeking public comment on the following topics with a deadline to submit comments by May 29, 2021.

Defining dark patterns
Prevalence of dark patterns
Factors affecting dark pattern adoption
Dark patterns and machine learning
Effectiveness of dark patterns
Harms of dark patterns
Consumer perception of dark patterns
Market constraints and self-regulation
Solutions

Dark pattern policy discussion has increased over the last few months. If you are a technology stakeholder, it is a discussion to take note of.

Lanton Law is a national boutique law and lobbying firm that focuses on fintech, technology and healthcare. If you are an industry stakeholder with questions about the current landscape or if you would like to discuss how your organization’s strategic initiatives might be impacted by either Congress, regulatory agencies or legal decisions, contact us today.

Ron Lanton 4/23/21 Ron Lanton 4/23/21

U.S. Supreme Court Limits the FTC’s Ability to Obtain Restitution for Deceptive Practices

On April 22, 2021, Justice Breyer wrote the majority opinion for AMG CAPITAL MANAGEMENT, LLC, ET AL. v. FEDERAL TRADE COMMISSION, which was a shock to many consumer advocates where the Court ruled unanimously against the Federal Trade Commission (FTC).

According to the case, the Federal Trade Commission filed a complaint against Scott Tucker and his companies alleging deceptive payday lending practices in violation of §5(a) of the Federal Trade Commission Act. The District Court granted the Commission’s request pursuant to §13(b) of the Act for a permanent injunction to prevent Tucker from committing future violations of the Act, and relied on the same authority to direct Tucker to pay $1.27 billion in restitution and disgorgement. On appeal, the Ninth Circuit rejected Tucker’s argument that §13(b) does not authorize the award of equitable monetary relief.

The Court held that “Section 13(b) does not authorize the Commission to seek, or a court to award, equitable monetary relief such as restitution or disgorgement.” Congress is set to address this issue soon as it looks to reaffirm the agency’s power to provide consumer relief.

FTC Acting Chairwoman Rebecca Kelly Slaughter released a statement about the case where she stated:

“In AMG Capital, the Supreme Court ruled in favor of scam artists and dishonest corporations, leaving average Americans to pay for illegal behavior,” Acting Chairwoman Rebecca Kelly Slaughter said. “With this ruling, the Court has deprived the FTC of the strongest tool we had to help consumers when they need it most. We urge Congress to act swiftly to restore and strengthen the powers of the agency so we can make wronged consumers whole.”

Over the past four decades, the Commission has relied on Section 13(b) of the Federal Trade Commission Act to secure billions of dollars in relief for consumers in a wide variety of cases, including telemarketing fraud, anticompetitive pharmaceutical practices, data security and privacy, scams that target seniors and veterans, and deceptive business practices, among many others. More recently, in the wake of the pandemic, the FTC has used Section 13(b) to take action against entities operating COVID-related scams. Section 13(b) enforcement cases have resulted in the return of billions of dollars to consumers targeted by a wide variety of illegal scams and anticompetitive practices, including $11.2 billion in refunds to consumers during just the past five years.

Lanton Law is a national boutique law and lobbying firm that focuses on highly regulated industries such as technology, fintech, healthcare and clean energy. If you are an industry stakeholder with questions about the current landscape or if you would like to discuss how your organization’s strategic initiatives might be impacted by either Congress, regulatory agencies or legal decisions, contact us today.

Ron Lanton 2/13/20 Ron Lanton 2/13/20

What is the Potential Fallout from FTC’s Decision to Investigate Big Tech?

The Federal Trade Commission (FTC) issued a press release announcing that the agency will examine prior acquisitions by large technology companies between the years of January 1, 2010-December 31, 2019. With a 5-0 vote, the Commission seeks to examine subsequent trends of large cap acquisition on smaller firms to determine whether competition was restricted or whether competitive concerns should have been raised.

What is the Potential Fallout from FTC’s Decision to Investigate Big Tech?

“The Federal Trade Commission issued Special Orders to five large technology firms, requiring them to provide information about prior acquisitions not reported to the antitrust agencies under the Hart-Scott-Rodino (HSR) Act. The orders require Alphabet Inc. (including Google), Amazon.com, Inc., Apple Inc., Facebook, Inc., and Microsoft Corp. to provide information and documents on the terms, scope, structure, and purpose of transactions that each company consummated between Jan. 1, 2010 and Dec. 31, 2019.

The Commission issued these orders under Section 6(b) of the FTC Act, which authorizes the Commission to conduct wide-ranging studies that do not have a specific law enforcement purpose. The orders will help the FTC deepen its understanding of large technology firms’ acquisition activity, including how these firms report their transactions to the federal antitrust agencies, and whether large tech companies are making potentially anticompetitive acquisitions of nascent or potential competitors that fall below HSR filing thresholds and therefore do not need to be reported to the antitrust agencies.”

What specifically is the FTC looking for?

“The Special Orders require each recipient to identify acquisitions that were not reported to the FTC and the U.S. Department of Justice under the HSR Act, and to provide information similar to that requested on the HSR notification and report form. The orders also require companies to provide information and documents on their corporate acquisition strategies, voting and board appointment agreements, agreements to hire key personnel from other companies, and post-employment covenants not to compete. Last, the orders ask for information related to post-acquisition product development and pricing, including whether and how acquired assets were integrated and how acquired data has been treated.”

What are the options for the FTC under this action?

With this review being operated by the agency’s Office of Policy Planning under Section 6(b) of the FTC Act the review could trigger an enforcement action but that this inquiry would not be able to share information with the Department of Justice unless there is an enforcement action.

So what does this mean?

The FTC has significant power to scrutinize mergers and stop them. In this case, the FTC’s aim is to examine how big tech became big tech? The answer is simple, not only did they innovate to create go to products, but these large companies like Amazon, Facebook, Alphabet, Microsoft and Apple grew through acquisitions. Determining whether to incorporate competition or “kill” acquired companies has heavily contributed to their success. While the FTC does have power to make problems for these companies, the fact that the agency’s scrutiny could go on for years poses the question of whether the FTC has enough resources to make any meaningful differences. Additionally, will these same scrutinized big tech companies provide a marketplace solution themselves by divesting certain businesses before policymakers require them to do so.

This may be different for tech companies that aren’t large cap tech. Knowing what the competitive playing field is along with how regulators are overseeing this market is crucial to your success. Contact Lanton Law to learn about your options to put together a solid strategy to reach your goals.

For more information contact

Ron Lanton III, Esq.

Principal

Lanton Law

rlanton@lantonlaw.com

Disclaimer

The materials and information provided in this update is for informational purposes only and not for the purpose of providing legal advice. Use of and access to this article or any of the materials or information contained within this article do not create an attorney-client relationship between Lanton Law and the user or viewer. You should contact an attorney to obtain advice with respect to any particular issue or problem.