Antitrust and CUTPA: General Principles, Hot Topics, and What Makes Connecticut Law Special June 10, 2019 9:00 a.m – 11:00 a.m Connecticut Convention Center Hartford, CT CT Bar Institute Inc CT: 2.0 CLE Credits (General) NY: 2.0 CLE Credits (AOP) Seminar Materials Sponsored by No representation or warranty is made as to the accuracy of these materials Readers should check primary sources where appropriate and use the traditional legal research techniques to make sure that the information has not been affected or changed by recent developments Page of 29 Lawyers’ Principles of Professionalism As a lawyer I must strive to make our system of justice work fairly and efficiently In order to carry out that responsibility, not only will I comply with the letter and spirit of the disciplinary standards applicable to all lawyers, but I will also conduct myself in accordance with the following Principles of Professionalism when dealing with my client, opposing parties, their counsel, the courts and the general public Where consistent with my client's interests, I will communicate with opposing counsel in an effort to avoid litigation and to resolve litigation that has actually commenced; Civility and courtesy are the hallmarks of professionalism and should not be equated with weakness; I will not file frivolous motions; I will endeavor to be courteous and civil, both in oral and in written communications; I will make every effort to agree with other counsel, as early as possible, on a voluntary exchange of information and on a plan for discovery; I will not knowingly make statements of fact or of law that are untrue; I will attempt to resolve, by agreement, my objections to matters contained in my opponent's pleadings and discovery requests; I will agree to reasonable requests for extensions of time or for waiver of procedural formalities when the legitimate interests of my client will not be adversely affected; In civil matters, I will stipulate to facts as to which there is no genuine dispute; I will refrain from causing unreasonable delays; I will endeavor to be punctual in attending court hearings, conferences, meetings and depositions; I will endeavor to consult with opposing counsel before scheduling depositions and meetings and before rescheduling hearings, and I will cooperate with opposing counsel when scheduling changes are requested; I will at all times be candid with the court and its personnel; When scheduled hearings or depositions have to be canceled, I will notify opposing counsel, and if appropriate, the court (or other tribunal) as early as possible; Before dates for hearings or trials are set, or if that is not feasible, immediately after such dates have been set, I will attempt to verify the availability of key participants and witnesses so that I can promptly notify the court (or other tribunal) and opposing counsel of any likely problem in that regard; I will refrain from utilizing litigation or any other course of conduct to harass the opposing party; I will refrain from engaging in excessive and abusive discovery, and I will comply with all reasonable discovery requests; In depositions and other proceedings, and in negotiations, I will conduct myself with dignity, avoid making groundless objections and refrain from engaging I acts of rudeness or disrespect; I will not serve motions and pleadings on the other party or counsel at such time or in such manner as will unfairly limit the other party’s opportunity to respond; In business transactions I will not quarrel over matters of form or style, but will concentrate on matters of substance and content; I will be a vigorous and zealous advocate on behalf of my client, while recognizing, as an officer of the court, that excessive zeal may be detrimental to my client’s interests as well as to the proper functioning of our system of justice; While I must consider my client’s decision concerning the objectives of the representation, I nevertheless will counsel my client that a willingness to initiate or engage in settlement discussions is consistent with zealous and effective representation; I will withdraw voluntarily claims or defense when it becomes apparent that they not have merit or are superfluous; I will remember that, in addition to commitment to my client's cause, my responsibilities as a lawyer include a devotion to the public good; I will endeavor to keep myself current in the areas in which I practice and when necessary, will associate with, or refer my client to, counsel knowledgeable in another field of practice; I will be mindful of the fact that, as a member of a self-regulating profession, it is incumbent on me to report violations by fellow lawyers as required by the Rules of Professional Conduct; I will be mindful of the need to protect the image of the legal profession in the eyes of the public and will be so guided when considering methods and content of advertising; I will be mindful that the law is a learned profession and that among its desirable goals are devotion to public service, improvement of administration of justice, and the contribution of uncompensated time and civic influence on behalf of those persons who cannot afford adequate legal assistance; I will endeavor to ensure that all persons, regardless of race, age, gender, disability, national origin, religion, sexual orientation, color, or creed receive fair and equal treatment under the law, and will always conduct myself in such a way as to promote equality and justice for all It is understood that nothing in these Principles shall be deemed to supersede, supplement or in any way amend the Rules of Professional Conduct, alter existing standards of conduct against which lawyer conduct might be judged or become a basis for the imposition of civil liability of any kind Adopted by the Connecticut Bar Association House of Delegates on June 6, 1994 Page of 29 Faculty Biographies Allan Hillman is a litigator and transactional lawyer, a shareholder of Garcia & Milas PC, in New Haven In a 46 year career he has specialized in, written dozens of articles and chapters on, and taught antitrust, intellectual property, and franchise law, and has been named often in Best Lawyers in America and in the Northeast, as well as chairing Bar sections in CT and MD Page of 29 ROBERT M LANGER PARTNER Hartford, CT +1 860 297 3724 rlanger@wiggin.com EDUCATION J.D., University of Connecticut School of Law B.A., Franklin & Marshall College ADMISSIONS Connecticut COURT ADMISSIONS US Court of Appeals for the Second Circuit US Court of Appeals for the Third Circuit US District Court (District of Connecticut) US Supreme Court Bob is recognized as one of the country’s foremost authorities on antitrust, consumer protection, and trade regulation law He possesses unparalleled experience in counseling, litigation, and regulatory investigations in the field, and he is co-author of the definitive treatise on unfair trade practices and antitrust legal practice A Partner in the firm's Litigation Department and Co-chair of the firm's Antitrust and Consumer Protection Practice Group, Bob’s experience includes class actions and representing clients in both federal and state courts and before the Federal Trade Commission, the Antitrust Division of the U.S Department of Justice (DOJ), and offices of state attorneys general and state consumer protection agencies throughout the U.S Bob leverages more than two decades of experience as the Assistant Attorney General in charge of antitrust and consumer protection in Connecticut, where he litigated numerous antitrust and consumer matters in federal and state trial and appellate courts His four decades of accomplishments have earned him a host of prestigious accolades, including The Medal of Excellence from the University of Connecticut Law School Alumni Association, the 11th recipient in 40 years A Distinguished Legal Writing Award from the Burton Awards, granted to 35 authors from more than 1,000 submitting firms A Marvin Award from the National Association of Attorneys General (NAAG) An outstanding service award from the Connecticut Department of Consumer Protection Bob is a Charter Fellow and former Chair of the James W Cooper Fellows Program and a Fellow of the American Bar Foundation He was named Best Lawyers’ antitrust lawyer of the year for Hartford on several occasions Prior to joining Wiggin and Dana in 1994, Bob participated in more than 20 cases in the Connecticut Supreme Court and the Connecticut Appellate Court, including the first decisions under both the Connecticut Antitrust Act (in a 1975 case) and the Connecticut Unfair Trade Practices Act (CUTPA) in a 1981 case He has also assisted in drafting amendments for both statutes Additionally, Bob has participated in numerous cases in the U.S Supreme Court, including Leegin v PSKS (2007), which overturned century-old precedent related to vertical price fixing, and Hartford Fire v California (1993), a defeat against foreign reinsurers conspiring to harm U.S consumers CONTINUED C O N N E C T I C U T I N E W Y O R K I P H I L A D E L P H I A I WA S H I N G TO N , D C I PA L M B E A C H www.wiggin.com Page of 29 ROBERT M LANGER PARTNER CONTINUED In September 2005, at the behest of the Congressional Antitrust Modernization Commission, Bob was one of three participants to testify on the subject of the state action immunity doctrine From 1990 to 1992, Bob served as Chair of the NAAG Multistate Antitrust Task Force NAAG established the now commonplace model of multistate attorney general cooperation in consumer protection That model was born with Bob’s and others’ work in the 1970s to forge a landmark agreement with General Motors for secretly installing Chevrolet engines in Oldsmobiles Bob has participated in numerous pro bono initiatives, including the Fair Factories Clearinghouse (FFC), which, after Bob helped FFC obtain a successful Business Review Letter from the Antitrust Division of the DOJ, now shares documented data about wages and working conditions in foreign manufacturing settings He also successfully obtained Advisory Opinions from the Federal Trade Commission to enable healthcare nonprofits to pass savings on to their employees and others As Chair of the Cooper Fellows, he helped launch a program to capture the oral histories of pioneering women in the law in Connecticut Bob lectures and writes regularly on antitrust, consumer protection, and healthcare topics Bob is the co-author of Unfair Trade Practices, Business Torts and Antitrust, a treatise for Connecticut judges, lawyers, and academicians His op-ed articles have appeared in The New York Times and The Hartford Courant Since 1979, Bob has taught at the University of Connecticut School of Business Administration's MBA Program and the University of Connecticut School of Law Bob obtained his J.D from the University of Connecticut School of Law and his A.B from Franklin & Marshall College Bob was admitted to practice in 1973 www.wiggin.com Page of 29 Jill M O'Toole Partner P (860) 251-5909 / F (860) 251-5218 jotoole@goodwin.com Jill O’Toole is the Co-Chair of the firm's Business Litigation Practice Group She has significant experience representing clients in complex commercial litigation, including state and federal class actions and multi-district litigation Her cases cover a broad range of business disputes involving antitrust, trade regulation, securities, fiduciary duties, insurance, contracts, business torts, and intellectual property Jill has worked extensively with experts in diverse fields such as agriculture, econometrics, software testing, corporate trust, and securities Jill has been lead trial lawyer in state and federal courts in technology and financial services disputes She has also represented clients in international arbitrations, and appeals before various federal Circuit Courts of Appeals, and the Connecticut appellate courts Her clients include financial institutions, financial services companies, closely held corporations, limited liability companies, and partnerships In the area of government investigations and white collar criminal defense, Jill represents clients for civil, criminal, and military matters involving various federal and state agencies She handles investigations into matters involving bribery, theft, kickbacks, conspiracy, fraud, false statements, False Claims Act, Foreign Corrupt Practices Act, terrorist financing laws, military contracts, and federal and state government contracts She also works with clients to evaluate and develop compliance programs Jill serves on the firm’s E-Discovery and Information Governance Group and advises her peers and clients on electronic data preservation, collection, review, and production in state and federal courts – Jill O'Toole Page of 29 Antitrust and CUTPA: General Principles, Hot Topics, and What Makes Connecticut Law Special (CLC2019‐A02) Agenda Time 2 min 12 min Speaker Langer Hillman 12 min O’Toole 16 min Langer TOTAL Part I: 42 min 1 min Langer 15 min Hillman 15 min O’Toole 12 min Hillman 12 min O’Toole TOTAL Part II: 55 min 2 min Langer 7 min Hillman 7 min O’Toole 7 min Langer TOTAL Part III: 23 min Outline Section I. Overview of Relevant Laws ‐ introduction A. Federal Antitrust Laws 1. Sherman Act 2. Clayton Act B. CT Antitrust Act (CATA), including important differences between the federal antitrust laws and CATA C. CUTPA II. Recent Developments – introduction A. Applicable Framework for Antitrust Cases, including per se and rule of reason, with discussion of Ohio v. American Express Co. B. Illinois Brick Repealer Statutes, including US Supreme Court decision, overview of repealer statutes, and developments in Illinois Brick repealer statutes (and discussion specific to CT) C. Recent CT Case, including discussion of federal and state laws D. Statutes of Limitations and Class Actions ~ limitations on tolling, piggybacking, and stacking in wake of China Agritech, Inc. v. Resh III. Trends in Enforcement of Antitrust and Consumer Protection Laws – introduction A(1). Antitrust enforcement trends based on guidance from DOJ ~ Non‐poaching agreements by competitors A(2). Enforcement trends from antitrust authorities at FTC and DOJ suggest focus healthcare and medical devices: preserve innovation B. Consumer protection laws (and discussion of Soto v. Bushmaster) Page of 29 5/17/2019 Connecticut Bar Association Connecticut Legal Conference June 10, 2019 © Shipman & Goodwin LLP 2019. All rights reserved Antitrust and CUTPA: General Principles, Hot Topics and What Makes Connecticut Law Special Allan Hillman, Robert Langer, and Jill O’Toole Presenters • • • Allan Hillman, Garcia & Milas, P.C., Shareholder. Allan is a litigator and transactional lawyer in New Haven. In a 46 year career he has specialized in, written dozens of articles and chapters on, and taught antitrust, intellectual property, and franchise law, and has been named often in Best Lawyers in America and in the Northeast, as well as chairing Bar sections in Connecticut and Maryland Robert Langer, Wiggin and Dana LLP, Partner. Bob is recognized as one of the country’s foremost authorities on antitrust, consumer protection, and trade regulation law. He possesses unparalleled experience in counseling, litigation, and regulatory investigations in the field, and he is co‐author of the definitive treatise on unfair trade practices and antitrust legal practice. A Partner in the firm's Litigation Department and Co‐chair of the firm's Antitrust and Consumer Protection Practice Group, Bob’s experience includes class actions and representing clients in both federal and state courts and before the Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice (DOJ), and offices of state attorneys general and state consumer protection agencies throughout the U.S. Bob has taught antitrust, consumer protection and constitutional law for the past 40 years as an adjunct professor at both UConn Law School and UConn’s School of Business Administration, MBA Program Jill O’Toole, Shipman & Goodwin, LLP, Partner. Jill is Co‐Chair of the firm's Business Litigation Practice Group. She has significant experience representing clients in complex commercial litigation, with a focus on antitrust and securities issues, in state and federal courts, domestic and international arbitrations, and appeals before various federal Circuit Courts of Appeals, and the Connecticut appellate courts. Before joining the firm in 2006, she was an associate with Simpson Thacher & Bartlett in New York, NY and was a law clerk to the Hon. Gerard L. Goettel, U.S. District Judge for the Southern District of New York and Hon. William I. Garfinkel, U.S. Magistrate Judge for the District of Connecticut Overview of Today’s Program • Introduction to Relevant Laws • Recent Developments • Trends in Enforcement of Antitrust and Consumer Protection Page of 29 5/17/2019 Part I – Overview of Relevant Laws • Federal Antitrust Laws Sherman Act Clayton Act • Connecticut’s Antitrust Law • TheConnecticutUnfairTradePracticesAct ShermanAct Section1 15U.S.C.Đ 1(1890) ã Condemnscontracts,combinationsand conspiraciesinrestraintoftrade ã Unreasonablerestraintsareunlawful • Unilateral conduct is not unlawful Sherman Act “Conscious Commitment to a Common Scheme” Page of 29 5/17/2019 ShermanAct Section2 15U.S.C.Đ 2(1890) ã Monopolization ã AttempttoMonopolize ã ConspiracytoMonopolize ClaytonAct 15U.S.C.ĐĐ 12etseq.(1914) ã ExclusiveDealing ã RobinsonPatman PriceDiscrimination(1936) ã HartScottRodino PreMergerNotification ClaytonAct ã 15U.S.C.Đ 15 TrebleDamages PrivateSuits AttorneysFees ã 15U.S.C.Đ 26 InjunctiveRelief Page 10 of 29 5/17/2019 CUTPA – “Unfair” Acts or Practices Factor 1 – Offense to Public Policy • Factor 1 of the cigarette rule asks if the practice offends public policy. Connecticut often looks to legislation to determine the answer • It is possible to offend public policy without strictly violating a statute CUTPA – “Unfair” Acts or Practices Factor 2 – immoral, unethical, oppressive or unscrupulous conduct • Examples of conduct that is considered immoral, unethical, oppressive or unscrupulous Refusal to conform to industry standard in order to maximize profits Other examples are virtually limitless CUTPA – “Unfair” Acts or Practices Factor 3 – Injury to Consumers • Factor 3 asks if there is an unjustified consumer injury (1) (2) (3) The injury is substantial The injury is not outweighed by countervailing benefits to consumers or competition The injury could not be reasonably avoided by consumers • All three elements are required Page 15 of 29 5/17/2019 CUTPA – Deceptive Acts and Practices • Three elements from FTC policy statement and Connecticut Supreme Court (1) (2) (3) A representation, omission or other practice likely to mislead Consumers must interpret the message reasonably under the circumstances; and The representation, omissions or practice must be material – meaning likely to affect consumer decisions or conduct CUTPA – Ascertainable Loss • Per se violation of CUTPA versus ascertainable harm or injury CUTPA – Relief Available • • • • • Actual damages Punitive damages Costs Reasonable attorneys’ fees Equitable relief Page 16 of 29 5/17/2019 Questions Part II – Recent Developments • Applicable framework for antitrust cases, discussing per se and rule of reason standards • Illinois Brick repealer statutes, discussing ability of indirect purchasers to sue • Recent Connecticut cases in state and federal courts • Statutes of limitations, discussing class actions, tolling, and “piggy‐backing” Applicable Framework for Antitrust Cases • Per se • Rule of reason Page 17 of 29 10 5/17/2019 Per Se • Pernicious effect • No redeeming virtue • No defense allowed Horizontal Restraints • • • • Price‐fixing Market allocation Output restrictions Group boycotts Rule of Reason • Consider justifications and defenses for restraint • Key determinant Effect on relevant market Page 18 of 29 11 5/17/2019 Relevant Market • • • • • • Interbrand Intrabrand Geographic market Product market Appreciable number of customers Cross‐elasticity of demand Vertical (Resale) Restraints • • • • Resale price maintenance Territorial and customer restraints Tying and exclusive dealing Vertical boycotts Supreme Court on Framework • Ohio v. American Express Co., 138 S. Ct. 2274 (2018) • Latest Supreme Court case on antitrust • The Court did not strike down anti‐steering rules prohibiting merchants from persuading customers to use competitive cards • Will Amex have application outside of the two‐sided credit card market? Page 19 of 29 12 5/17/2019 Illinois Brick and Repealer Statutes • U.S. Supreme Court decision in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) Only direct purchasers may sue sellers who violate the antitrust laws The purchaser’s customers (the “indirect” purchasers) may not • Supreme Court example: If manufacturer A sells to retailer B, and Retailer B sells to consumer C, then Only B can sue A C may not sue A And C can sue B if B is also an antitrust violator Illinois Brick – Policy Considerations • Risk of duplicative recovery if every person along distribution chain can claim damages • Difficulty (if not impossibility) of apportioning damages between direct and indirect purchasers “Pass on” or “pass through” issues Illinois Brick ‐ Exceptions • Potential for exceptions Pre‐existing, cost‐plus contracts for fixed quantity of goods Direct purchaser is owned or controlled by another party (either indirect purchaser or seller) Co‐conspirators Page 20 of 29 13 5/17/2019 Illinois Brick ‐ Exceptions • Pre‐existing, cost‐plus contracts for fixed quantity of goods Expectation that it would rarely apply. Kansas v. Utilicorp United Inc., 497 U.S. 199, 218 (1990) Not recognized by all circuits Illinois Brick ‐ Exceptions • Own or control “No realistic possibility” that direct purchaser will file suit Wholly‐owned subsidiaries or divisions Narrowly construed Illinois Brick ‐ Exceptions • Co‐conspirator Is this really an exception? Origins in Arizona v. Shamrock Foods Co., 729 F.2d 1208 (9th Cir. 1984) Direct horizontal competitors Caution to lower federal courts against creating new exceptions to Illinois Brick rule Page 21 of 29 14 5/17/2019 Illinois Brick after Pepper • Apple, Inc. v. Pepper, ‐‐‐ S. Ct. ‐‐‐, No. 17‐204, 2019 WL 2078087 (May 13, 2019) Consumer challenge to over‐charged apps Consumers argued Apple monopolized retail market for app sales, using monopoly power to charge consumers higher‐than‐competitive prices Supreme Court rejected Apple’s “who sets the price” theory Recognition that Apple may face multiple suits by different plaintiffs (i.e policy concern #1) Message: the “central concern of antitrust” is “protecting consumers from monopoly prices” Illinois Brick Repealer Statutes • State legislative action in response to Illinois Brick Direct cause of action for indirect purchasers State Attorney General may bring claims on behalf of indirect purchasers • Alternative to repealer statutes: state unfair competition statutes, unjust enrichment, or other tort claims Connecticut’s Repealer Statute • Vacco v.Microsoft,260Conn.59(2002), reaffirmedIllinoisBrickholdingthatindirect purchaserslackstandingtosue ã Conn.Gen.Stat.Đ 3546a RemovesIllinoisBrickasadefense 2stepprocesstoamendCAA Different than typical repealer statutes Repeal initially limited to pharmaceutical and medical device market Broader exemption effective October 1, 2018 Page 22 of 29 15 5/17/2019 Recent Caselaw – CT State Court • The Reserve Realty, LLC v. Windemere Reserve, LLC, 174 Conn. App. 130 (2017) Tying claim dismissed, adhering to State v. Hossan‐Maxwell, Inc., 181 Conn. 655 (1980) • Tremont Public Advisors, LLC v. Conn. Resources Recovery Authority, No. CV13‐6039811S, 2017 WL 2452164 (Conn. Super. Ct. May 5, 2017) CATA applies to quasi‐public agencies Extensive standing to sue analysis under leading U.S. Supreme Court case and leading Conn. Supreme Court case (dictum) Recent Caselaw – CT Federal Court • MacDermid Printing Sols. LLC v. Cortron Corp., 833 F.3d 172, 180 (2d Cir. 2016) Reversal of nearly $65 million award Section 1 Sherman Act claim No proof of adverse effect on competition On remand, damages recomputed to $11.8 million Recent Caselaw – CT Federal Court • Conn. Ironworkers Employers’ Ass’n v. New England Reg. Council of Carpenters, 324 F. Supp. 3d 293 (D. Conn. 2018) No group boycott Sherman Act claims dismissed because no actual adverse effect on competition No showing of lower output and higher prices in properly defined market Page 23 of 29 16 5/17/2019 Statute of Limitations Issues • Sherman Act and Clayton Act claims 4 year window 15U.S.C.Đ 15b ZenithRadioCorp.v.HazeltineResearch,401U.S.321 (1971) Recoverdamagesforovertactsoccurringwithin limitationsperiod StatuteofLimitationsIssues ã Whathastohappenwithinlimitationsperiod Acts versus effects Klehr v. A.O. Smith Corp., 521 U.S. 179, 180‐81 (1997) – requires commission of separate, new predicate act within 4‐year period to recover for the damages that act caused Most courts adopt 5th Circuit test prohibiting plaintiff from recovering damages for “abatable but unabated inertial consequences” of acts Statute of Limitations Issues • Continuing Violation Doctrine Restarts statute of limitations if: New and independent acts Not merely reaffirmation of previous act Must inflict new and accumulating injury Defendant’s conduct versus duration plaintiff’s injury Page 24 of 29 17 5/17/2019 Statute of Limitations Issues • Class Action Tolling American Pipe & Constr. Co. v. Utah, 414 U.S. 538 (1974) Tolls statute of limitations during class action as to all members of the class who would have been parties if the suit had been permitted to continue as a class action Policy limitation ~ notice to defendants not only of substantive claims but also of the “number and generic identities” of potential plaintiffs Statute of Limitations Issues • Narrowing of American Pipe in China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018) “American Pipe does not permit the maintenance of a follow‐on class action past expiration of the statute of limitations” Plaintiffs cannot rely on different, earlier class action for tolling Questions Page 25 of 29 18 5/17/2019 Part III – Trends in Enforcement of Antitrust and Consumer Protection Laws • Antitrust enforcement trend: no poaching agreements among competitors • Enforcement trends from FTC and DOJ: focus on healthcare and medical devices • Trends in consumer protection laws, discussing Soto v. Bushmaster Antitrust Enforcement • Department of Justice – Antitrust Division Government Enforcement Only Civil Suits Hart‐Scott‐Rodino Review Criminal Prosecutions Antitrust Enforcement • Federal Trade Commission Commissioners – recent turnover Regional Offices • State Attorneys General Connecticut New York – Donnelly Act NY General Business Law, §§ 340‐347 (1899) Page 26 of 29 19 5/17/2019 Non‐Poaching Agreements • In re Railway Industry Employee No‐Poach Antitrust Litig., 2:18‐mc‐000798 (W.D. Pa.), DOJ Statement of Interest, filed Feb. 8, 2019 (ECF No. 158) Declares “no‐poach agreements among competitors are per se unlawful unless they are ancillary to a separate legitimate transaction or collaboration” (at 4) “Just as an agreement among competitors to allocate customers eliminates competition for these customers, an agreement among them to allocate employees eliminates competition for those employees” (at 8) “Naked no‐poach agreements are per se illegal” (citing Dep’t of Justice, FTC Antitrust Guidelines for HR Professionals (2016)) (at 9) DOJ states its intent to prosecute such cases criminally (at 9 n.3) Non‐Poaching Agreements • DOJ Antitrust Division, Spring 2018 Update Outlines ongoing efforts to investigate and prosecute naked no‐poach and wage‐fixing agreements between employers, both civilly and criminally Enforcement Trends from Antitrust Authorities at FTC and DOJ • Recent activity suggests focus on healthcare and medical devices Message: preserve innovation • Other areas identified: Consumer privacy and data security Financial marketplace Advertising Consumer Fraud Page 27 of 29 20 5/17/2019 Enforcement Trends from Antitrust Authorities at FTC and DOJ • Recent FTC activity May 7, 2019 – ALJ upheld FTC complaint against Otto Bock Healthcare North America, Inc. and Freedom Innovations challenging merger of companies making microprocessor prosthetic knees Feb. 1, 2019 – FTC payments made to consumers who had purchase health products that promoted weight loss, muscle building, or wrinkle‐reduction Enforcement Trends from Antitrust Authorities at FTC and DOJ • Recent DOJ activity May 1, 2019 – insulation contractor pleaded guilty in D. Conn. for bid‐rigging in violation of antitrust laws; contracts for installing insulation in universities, hospitals, and other entities Feb. 8, 2019 – largest ever negotiated merger divestiture (value ~ $9 billion) to preserve competition to innovate in agricultural products market involving Bayer and Monsanto Trends in Consumer Protection • CUTPA’s commercial relationship test Evisceration after Soto v. Bushmaster Firearms International, 331 Conn. 53 (2019) Estates of victims of Sandy Hook school shooting can pursue claims against manufacturer of weapon used during massacre Potential to greatly expand reach of CUTPA Page 28 of 29 21 5/17/2019 Trends in Consumer Protection • What is the Future of the Cigarette Rule? Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 317 Conn. 602, 622 n.13, 119 A.3d 1139 (2015) “[A] serious question exists as to whether the cigarette rule remains the guiding rule utilized under federal law.” “Because of the likelihood that this court will be required to address this issue in a future case . . . The legislature may wish to clarify its position with respect to the proper test.” Questions Thank you Page 29 of 29 22