Technology Law Source

Jay L. Levine

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Jay Levine is a partner in the firm’s Washington, D.C. Litigation Department. His practice is concentrated in complex litigation and counseling and he is co-chair of the firm’s Antitrust and Consumer Protection Practice Group. He is also the managing editor of the firm’s innovative Antitrust Law Source blog and host of its podcast, as well editor of the firm’s Food And Agriculture Quarterly.

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FTC’s focus on “patent trolls” not limited to competition concerns

The FTC sent a message to “patent trolls” earlier this month, though how well that message will resonate remains to be seen. On Nov. 6, the FTC’s Bureau of Consumer Protection concluded its investigation into MPHJ Technology Investments, LLC’s practices involving its so-called “inquiry letters” by agreeing to accept a consent order. The consent order … Continue Reading

‘Patent troll’ cannot “derail” FTC investigation

Have to give them an “A” for effort. “Patent troll” MPHJ Technology Investments, LLC sued the FTC hoping to shut down its investigation into the company because the investigation violated MPHJ’s First Amendment rights to petition. A West Texas federal judge recently ruled that MPHJ could not “derail” the FTC investigation with such a claim. … Continue Reading

Ready. Set. Go. FTC patent troll study cleared for takeoff

Last week, the White House’s Office of Management and Budget approved the FTC’s request to study how patent assertion entities (PAEs or, less charitably, patent trolls) operate and to what extent they affect competition and innovation. The study was originally proposed in September 2013 and modified this past May in response to public comment. As … Continue Reading

District court gives the FTC the go-ahead in Wyndham data security enforcement suit

A decision from the U.S. District Court for the District of New Jersey last week affirmed the Federal Trade Commission’s assertion of authority to prosecute data security breaches under Section 5 of the Federal Trade Commission Act. The FTC has increasingly used its authority under Section 5, which makes it unlawful to engage in “unfair … Continue Reading

FTC strikes back against virtual Peeping Tom

Okay, folks, we won’t beat around the bush. This is just plain creepy! On Monday, the FTC finalized its order against Aaron’s, one of the country’s largest rent-to-own (RTO) stores, charging that its franchisees were spying on its customers.1 By the way, by spying, we mean to include taking webcam pictures every two minutes that … Continue Reading

Patent troll moves forward with antitrust claim against defensive anti-troll

Can a group of defendants refuse to settle with a non-practicing entity (NPE)? Can they collectively refuse to license patents from a “troll”? Or does that refusal subject them to antitrust scrutiny? These are the issues at the heart of a Northern District of California case: Cascades Computer Innovation LLC v. RPX Corp. Cascades manages … Continue Reading

LabMD joins Wyndham in challenging FTC’s data privacy authority

Section 5 of the Federal Trade Commission Act — the Act that established the FTC in the first place — makes it unlawful to engage in “unfair methods of competition … and unfair or deceptive acts or practices…” Though the words seem simple enough, its application in today’s world is anything but simple, particularly when you talk about data privacy. Two companies — Wyndham Worldwide Corp. and LabMD Inc. — are publicly, and independently, challenging the FTC’s authority over their data security policies (and subsequent lapses). This post is a quick update about LabMD’s challenge. In August 2013, the FTC filed an administrative complaint against LabMD, alleging that it lacked appropriate data security and unreasonably exposed the health and personal data of its consumers. LabMD conducts clinical laboratory tests on patients and reports its finding to patients’ health care providers. In performing the needed tests, LabMD typically obtains personal information, including names, addresses, dates of birth, SSNs, bank account or credit card information, laboratory tests, test codes and results, diagnoses, clinical histories, and health insurance company names and policy numbers. LabMD possesses such data for approximately 1 million consumers. The FTC charged that LabMD “failed to provide reasonable and appropriate security for personal information on its computer networks.” Among other things, the complaint states that LabMD failed to: … Continue Reading

FTC study on “patent troll” behavior: innovation enhancers or competition killers? Part 2

In the second of this two part series, we dig a bit deeper on the FTC’s recently proposed study on patent assertion entity (PAE) activity. In Part 1, we covered some background on PAEs and why they are singled out separately from other types of patent holders. Here in part 2, we discuss potential antitrust concerns with PAE activity, what … Continue Reading

FTC study on “patent troll” behavior: innovation enhancers or competition killers?

Executive Summary Almost half of all infringement actions brought these days are brought by patentholders that do not practice the invention, but rather by holders who seek to capitalize on the value of the patent through either licensing fees or via damage awards in infringement actions. While simply asserting patent rights cannot be an antitrust … Continue Reading