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In FTC

United States: FTC puts companies on notice that failure to provide support for their product claims could result in civil penalties

by , , , and 3 Mins Read

In brief On 13 April 2023, the Federal Trade Commission (FTC) issued a letter containing a Notice of Penalty Offenses Concerning Substantiation of Product Claims to approximately 670 advertisers, putting each company on notice that deceiving consumers with advertisements that make unsubstantiated product claims could subject the company to civil penalties of up to USD 50,120 per violation under 15 U.S.C. § 45(m)(1)(B). The FTC noted that, while the initial distribution of the Notice was specific to those making…

In SEC

United States: SCOTUS upholds district court’s jurisdiction over challenges to SEC and FTC actions

by , and 4 Mins Read

In brief On 14 April 2023, the United States Supreme Court issued its opinion in Axon Enterprise, Inc. v. Federal Trade Commission et al., and unanimously held that a litigant challenging the constitutionality of an agency administrative enforcement action need not await the outcome of that action before bringing their constitutionality challenge in federal district court. In depth The Court in Axon Enterprise, Inc. considered two separate matters based on administrative enforcement proceedings: one from the…

In Class Actions

Canada: Mutual Fund Managers Liable For Failing To Prevent “Market Timing” Activity In Rare Class Action Common Issue Trial

by and 6 Mins Read

In a class action spanning nearly 20 years, Ontario’s Superior Court of Justice has found two mutual fund managers liable for negligence related to “market timing”. Justice Koehnen held in Fisher v. IG Investment that the mutual fund managers failed to take reasonable steps to prevent frequent, short-term trading in their funds that harmed long-term investors. The mutual fund managers did not, however, breach their fiduciary duties. This decision offers important takeaways concerning class proceedings,…

In Attorney-Client Privilege

United States: In re Grand Jury

by , and 4 Mins Read

In brief After initially granting certiorari and hearing oral arguments in In re Grand Jury ─ a matter concerning the application of the attorney-client privilege to dual-purpose communications ─ the United States Supreme Court “dismissed as improvidently granted” the case. Tax practitioners had hoped that a ruling by the Supreme Court would resolve a circuit split regarding the extent to which such communications fall within the ambit of the privilege. Background As a general rule, a lawyer’s…

In Corporate Enforcement Policy

United States: Department of Justice tweaks Criminal Division Corporate Enforcement Policy

by 6 Mins Read

On January 17, 2023, the US Department of Justice (DOJ or the “Department”) issued a revised version of its Corporate Enforcement Policy (CEP). The CEP sets out the Department’s approach to resolving criminal cases with corporations. In particular, it addresses how the Department will credit companies which voluntarily disclose criminal conduct and cooperate with the Department’s investigation and resolution of the matter. The latest revisions to the CEP are an evolution of existing Department policy…

In Privacy

Ontario Court of Appeal halts “intrusion upon seclusion” claims against defendants whose databases are hacked by third-parties

by , and 3 Mins Read

Introduction On November 25, 2022 the Ontario Court of Appeal released three decisions clarifying the scope of the common law tort for invasion of privacy called “intrusion upon seclusion”. These cases are Owsianik v Equifax Canada Co., Obodo v Trans Union of Canada, Inc. and Winder v Marriott International, Inc. The issue before the Court was “whether a claim for intrusion upon seclusion can succeed against the collectors and custodians of private information (“Database…

In Class Actions

Alberta Court of Appeal contemplates enhanced gatekeeping in class action certification

by , , and 3 Mins Read

In Flesch v Apache Corporation, the Alberta Court of Appeal (“ABCA”) upheld the certification of an employee class action arising out of the cancellation of a long-term incentive compensation plan. This case is significant because the court discussed increasing its gatekeeping function in the certification of class actions, and it serves as a warning to employers who seek to amend or cancel incentive plans. Background In July 2017, the Apache Corporation (“Apache”), an American oil…

In False Claims Act

United States: Washington, DC Circuit’s ruling in Honeywell reins in large false claims act damages

by , and 7 Mins Read

In brief On 30 August 2022, the DC Circuit ruled in United States v. Honeywell International, Inc. that the pro tanto rule applies to damages in cases under the False Claims Act (FCA). This means that, at least in the DC Circuit, damages in FCA cases will be subject to dollar-for-dollar reduction by other settlement offsets in cases involving multiple jointly and severally liable defendants. The ruling clarifies the settlement offset rule applied to FCA cases and…

In Canada

Canadian Federal Court of Appeal Slams the Door on Buy-Side Conspiracy Claims

by , , and 4 Mins Read

Introduction In Mohr v National Hockey League, 2022 FCA 145, the Canadian Federal Court of Appeal (FCA) dismissed an appeal from a motion to strike a proposed class action claim. The proposed representative plaintiff alleged an anti-competitive conspiracy among professional and major junior hockey leagues. This decision is significant because the FCA confirmed that prohibitions under section 45 of the Canadian Competition Act apply to “supply side” agreements only. They do not apply to “buy…

In ESG

Plastic and Recyclability Litigation: Best Practices to Minimize Risk

by and 4 Mins Read

With a growing trend toward taking more ESG measures, some companies are at risk of lawsuits from consumers involving plastic packaging. Here are some best practices boards should know about to mitigate the risk of litigation. In a recent trend, citizen advocates and environmental groups have been filing lawsuits asserting novel theories against major companies that use or rely on plastic, even if the companies do not produce plastic products or are not involved in…

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