FTC International Monthly - April

FTC International Monthly: U.S. Competition, Consumer Protection and Privacy News

APRIL 2022


FTC and Justice Department Launch Listening Forums on Firsthand Effects of Mergers and Acquisitions

FTC and DOJ seals

The FTC and U.S. Department of Justice are hosting a series of listening forums to hear from those beyond antitrust experts who have experienced firsthand the effects of mergers and acquisitions, including consumers, workers, entrepreneurs, start-ups, farmers, investors, and independent businesses.  The four forum series will conclude next month.  It is being held virtually and helmed by FTC Chair Khan and Assistant Attorney General Kanter of the Antitrust Division.  The forums are focusing on markets commonly impacted by mergers: food and agriculture, health care, media and entertainment, and technology.  The forums will supplement the agencies’ recent request for written comments on merger enforcement guidelines to ensure that the agencies hear from affected groups who might not otherwise participate in the process.  The agencies have also extended the deadline for written comments through April 21.  For transcripts and videos click on the headline above, then click through to the individual forums.

FTC and DOJ Antitrust Division Host Enforcers Summit

Chair Khan at Enforcers Summit

The FTC and DOJ Antitrust Division co-hosted an Enforcers Summit on April 4 to discuss modernizing merger guidelines as well as how to work with industry regulators as part of a whole of government approach to competition policy.  These discussions will inform the agencies’ joint public inquiry on modernizing merger guidelines.  A video recording of the Summit’s plenary sessions is available here.

Federal Appeals Court Ruling Affirms Preliminary Injunction To Halt Merger of New Jersey Hospital Networks

Hackensack Meridian

The U.S. Court of Appeals affirmed the trial court’s August 2021 decision to grant a preliminary injunction against Hackensack Meridian Health, Inc.’s proposed acquisition of Englewood Healthcare Foundation.  According to the FTC’s administrative complaint, filed in December 2020, the merger would eliminate close competition between the two hospital networks.  Among other things, the court ruled that the "FTC may establish a prima facie case by showing a high market concentration based on HHI numbers alone."

FTC Proposed Divestiture in Energy Merger Would Prevent Elimination of a Significant Competitor for Waxy Crude Oil in Utah

The FTC will require the divestiture of energy producer EP Energy Corp.’s entire business and assets in Utah.  The divestiture will resolve the agency’s allegations that EnCap Energy Capital Fund XI, L.P.’s proposed $1.445 billion acquisition of EP Energy Corp. would eliminate head-to-head competition between two of only four significant producers and otherwise harm competition for the sale of Uinta Basin waxy crude oil to Salt Lake City refiners.  According to the complaint, EP and EnCap, through its subsidiary XCL Resources Holdings, LLC, compete to develop, produce, and sell Uinta Basin yellow and black waxy crude oil to Salt Lake City-area refiners.  The proposed acquisition would reduce the number of significant producers from four to three.  Under the proposed settlement, EnCap is required to divest EP’s business and assets in Utah to Crescent Energy Company.  Crescent is an experienced operator in crude oil and natural gas production, and it will be a new competitor in the Uinta Basin.

Consumer Protection and Privacy

FTC Chair Khan and EC Commissioner for Justice Reynders Affirm Interest in Reinvigorating Informal Dialogue on Consumer Protection

U.S. and EC flags

FTC Chair Khan and EC Commissioner for Justice Reynders issued a joint press statement in Brussels addressing their informal dialogue on consumer protection.  Technological developments, including the growth of the digital economy, have transformed the economic landscape in both Europe and the United States, necessitating changes on both sides of the Atlantic to protect and empower consumers.  Commissioner Reynders and Chair Khan affirmed their mutual interest in reinvigorating this dialogue on consumer issues, especially the impact of technological developments, to maximize the mutual benefits of policy and regulatory cooperation.  The joint statement identifies particular substantive and institutional issues for increased dialogue.   For more information, click on the headline above.

On Point Global

Court Rules That Fake Government Websites Deceived Consumers; Makes $102 Million in Refunds Available

The FTC’s trial win against On Point Global has made $102 million in refunds available to consumers who were deceived into handing over money to fake government websites in exchange for bogus advice on how to apply for government benefits.  The scammers ran hundreds of deceptive websites that promised a quick and easy government service, such as renewing a driver’s license, or eligibility determinations for public benefits like vouchers to subsidize housing obtained by low-income families from private landlords, or food stamps.  The sites had names like DMV.com, floridadriverslicense.org, and many others that were designed to mimic legitimate government websites.

FTC Sues Intuit for Its Deceptive TurboTax “Free” Filing Campaign


The FTC is taking action against Intuit Inc., the maker of the popular TurboTax tax filing software, by issuing an administrative complaint against the company alleging that it deceived consumers with bogus advertisements pitching “free” tax filing that millions of consumers could not use.  According to the complaint, in 2020 approximately two-thirds of tax filers could not use TurboTax’s free product.  In addition, to prevent ongoing harm to consumers rushing to file their taxes, the Commission filed a federal district court complaint asking a court to order Intuit to halt its deceptive advertising immediately.  “TurboTax is bombarding consumers with ads for ‘free’ tax filing services, and then hitting them with charges when it’s time to file,” said Samuel Levine, Director of the Bureau of Consumer Protection.  The Commission vote authorizing the staff to file both the administrative complaint and federal court complaint seeking preliminary relief was 3-1, with Commissioner Noah J. Phillips dissenting.

FTC Halts Deceptive Credit Repair Operation That Filed Fake Identity Theft Complaints

The FTC obtained an order halting a credit repair scheme that allegedly bilked consumers out of millions of dollars by falsely claiming they will remove negative information from credit reports, while also filing fake identity theft reports to explain negative items on customers’ credit reports, and illegally demanding that consumers pay up front fees.  At the request of the FTC and the Department of Justice, a federal judge issued an injunction against Texas-based Turbo Solutions Inc., which does business as Alex Miller Credit Repair, and its owner Alex V. Miller.  The complaint seeks both civil penalties and consumer redress.

FTC Takes Action Against CafePress for Data Breach Cover Up


The FTC has taken action against online customized merchandise platform CafePress over allegations that it failed to secure consumers’ sensitive personal data and covered up a major breach.  The FTC alleges that CafePress failed to implement reasonable security measures to protect sensitive information stored on its network, including plain text Social Security numbers, inadequately encrypted passwords, and answers to password reset questions.  The Commission’s proposed order requires the company to bolster its data security and requires its former owner to pay a half million dollars to compensate small businesses.

FTC Charges HomeAdvisor, Inc. with Cheating Businesses, Including Small Businesses, Seeking Leads for Home Improvement Projects


The FTC issued an administrative complaint against HomeAdvisor, Inc. – a company affiliated with Angi – alleging it used a wide range of deceptive and misleading tactics in selling home improvement project leads to service providers, including small businesspeople operating in the “gig” economy.  The FTC’s complaint against HomeAdvisor alleges it has made false, misleading, or unsubstantiated claims about the quality and source of the leads the company sells to service providers, such as general contractors and small lawn care businesses, who are in search of potential customers.  HomeAdvisor also misled service providers about the cost of an optional one-month subscription to a software platform that HomeAdvisor sold along with its leads, according to the FTC’s complaint.

FTC Seeks Large Civil Penalties for Bogus Bamboo Marketing from Kohl’s and Walmart


The FTC used its Penalty Offense Authority to take action against national retailers Kohl’s, Inc. and Walmart, Inc. for falsely marketing dozens of rayon textile products as bamboo. Both companies also are charged with making deceptive environmental claims, touting that the “bamboo” textiles were made using ecofriendly processes, while in reality converting bamboo into rayon requires the use of toxic chemicals and results in hazardous pollutants.  The Commission has asked the court to order Kohl’s and Walmart to stop making deceptive green claims or using other misleading advertising, and pay penalties of $2.5 million and $3 million, respectively, by far the largest penalties in this area.

In Other News

E-Cigarette Report

The FTC’s First Report on E-Cigarette Sales and Advertising Reveals Disturbing Trends Affecting the Health of Young Americans

The FTC’s first-ever report on e-cigarette products paints a disturbing picture of surging e-cigarette sales and advertising that are likely to damage the health of America’s youth.  The report, which is based on industry data provided for the years 2015 to 2018, shows that total e-cigarette sales, including both disposable units and those using changeable cartridges, increased more than six-fold from $304.2 million to $2.06 billion in those three years alone.  The sales of fruit and other flavored e-cigarette cartridges preferred by youth increased seven-fold over that time, and nicotine concentrations in disposable e-cigarette products also increased.