Deceptive And Unfair Trade Practices And Antitrust
A large part of my career has been spent investigating and litigating claims for unfair or deceptive trade practices, in private practice as well as for the United States government agency (the Federal Trade Commission) that enforces the primary federal law prohibiting such practices.
State law claims for deceptive or unfair trade practices are often brought together with fraud claims but, unlike such claims, do not usually require proof of an intention to deceive. In any action where fraud is an issue, a claim for unfair or deceptive trade practices may also be asserted. In recent years, many consumer class actions have been brought under state deceptive and unfair trade practices statutes.
I have defended corporations and their officers in investigations and civil suits brought by the FTC. I have also provided consulting services to other lawyers defending FTC actions who have sought my assistance and experience. As Of Counsel to a South Florida law firm, I advise it on Antitrust matters, including an action by a Central Florida public hospital against a vertically integrated health care system, seeking to halt a merger/acquisition and stop other anticompetitive actions.
I have represented Florida corporations and their presidents in investigations and enforcement actions, by the Florida Attorney General's office and a California district attorney's office, concerning alleged unfair and deceptive marketing and sales practices.
Please go through the several articles that I have written on this subject. Some of them have been cited as legal authority in a published state appellate court decision.
Administrative Law — FTC — Regulatory
I have represented individual and corporate clients before federal and state administrative agencies, including the federal Office of Thrift Supervision, the Florida Department of Banking, the Florida Attorney General's office, the federal Equal Employment Opportunity Commission (EEOC) and a county civil rights office. My lengthy tenure at the Federal Trade Commission (FTC) provided me a broad background in administrative practice and procedure, including the investigatory and enforcement processes. I have handled compulsory process enforcement and Freedom of Information Act litigation, which can be parts of those processes. I am intimately familiar with how the FTC operates both administratively and internally, and how it litigates in federal court. I understand how government enforcement and regulatory agencies work from the inside. See above as to my FTC defense work.
I also handled a complex federal court action against the Florida Department of Insurance by an out-of-state property and casualty insurer doing business in Florida. The insurer alleged that Florida's extended regulatory and subsequent statutory moratorium on policy nonrenewals and cancellations following the destruction of Hurricane Andrew in 1992 caused it extended operating losses on its Florida business, thereby constituting an unconstitutional, "as-applied" regulatory taking (among other constitutional claims). The United States Court of Appeals for the 11th Circuit vacated a district court's ruling against the claim, and the case subsequently settled. The case was intertwined with an administrative insurance rate-making challenge proceeding brought by the Department of Insurance against the insurer, which was also settled.
Financial Fraud, Investment Fraud, Financial Institutions And Insurance
I have handled a wide variety of financial fraud matters. For years at the FTC, I investigated and prosecuted "boiler room" investment fraud cases, which sought injunctive relief against offending corporations and individuals as well as monetary restitution on behalf of investors. I obtained preliminary equitable relief, including appointment of corporate receivers and personal and corporate asset freezes, and also participated in corporate bankruptcy proceedings.
In private practice, I have handled fraud claims in many contexts, including:
- Alleged fraud in the management of a federally chartered savings and loan;
- Claims against banks for aiding and abetting securities frauds by supplying financing to investors and other services;
- Director and officer liability issues in cases and investigations targeting corporate acts or omissions;
- Claims against accounting firms for aiding and abetting securities frauds by supplying services in connection with securities offerings;
- Numerous other fraud and RICO (racketeering) claims asserted in the context of business disputes, including as class actions.
As explained in the above section, I have handled litigation concerning insurance rate-making and constitutional issues of reasonable rate of return on insurance company business. I have also handled matters involving health insurance and transportation insurance coverage, as well as insurance defense cases (personal injury, defamation, and false imprisonment).
Complex Commercial Litigation
All types of matters discussed here can arise in complex commercial litigation. Such representations often involve multiple parties, including class actions, and multiple proceedings in federal and state court as well as before federal or state agencies. The court actions may allege both federal and state claims, including but not limited to common law fraud, statutory deceptive and unfair trade practices claims, and federal RICO (racketeering) claims and their state statutory counterparts.
Such actions may seek preliminary as well as final relief. For example, in investment fraud actions I prosecuted at the FTC, courts issued orders, including temporary restraining orders, temporary corporate and individual asset freezes, preliminary injunctions, the appointment of a corporate receiver, permanent injunctive relief and final monetary restitution. In a trademark counterfeiting action I handled in private practice, the court issued an ex parte counterfeiting seizure order as well as other preliminary injunctive relief.
In the FTC prosecutions, corporate defendants or their creditors sometimes filed bankruptcy petitions on behalf of defendants, which could result in simultaneous litigation in both proceedings. The defendants were sometimes the subject of parallel criminal investigations or prosecutions targeting the same conduct. Representation of the CEO of a Miami savings and loan involved responding to federal and state banking agency investigations, defending an administrative proceeding brought by another federal agency and defending a state court shareholder derivative action. It also involved coordination with criminal defense counsel and counsel representing the S&L.
The insurance regulatory taking matter I litigated included simultaneous conduct of the federal court matter and defense of a related state administrative rate-making proceeding, as well as institution of collateral state and federal court lawsuits seeking preliminary injunctive relief to postpone a regulatory market conduct examination noticed by the state insurance department.
I have also represented plaintiffs and defendants in collections-type actions. As counsel for a court-appointed receiver in U.S. District Court for the Southern District of New York, I engaged in actions to gather and repatriate aircraft assets toward satisfaction of a judgment obtained by the Justice Department against an aircraft parts supply company for unpaid federal taxes. The case involved issues of domestic as well as international law.
Consumer And Privacy
Just like individuals, businesses are frequent consumers of goods and services furnished by other businesses. My background in this area derives from my prosecution of investment fraud matters and handling of claims under state laws prohibiting unfair and deceptive acts and practices in trade and commerce, followed by research and publishing on such laws. I also have experience, going back to my FTC tenure, with the federal credit regulation statutes, including the Fair Credit Reporting Act, Equal Credit Opportunity Act and the Truth in Lending Act. (The FTC is the primary federal enforcement agency for those statutes).
One of the very first matters I handled at the FTC was an industry-wide investigation of procedures used to assure the accuracy and privacy of personal information collected and reported on individuals by the nation's five largest computerized consumer credit reporting agencies.
Businesses can be consumers just as individuals can, and I have represented both.
Please visit my website to review my articles on deceptive and unfair trade practices, as well as on consumer privacy in e-commerce and federal and state laws that can be used to prevent and remedy invasions of privacy.
Contracts And Other Business Litigation
My litigation experience has spanned claims for breach, enforcement, and interpretation of a wide variety of commercial contracts. It has included, but is not limited to, contracts in the areas of health care, aircraft repair, purchase and sale agreements, building construction, employment, partnership agreements, entertainment royalties, telecommunications service and product supply, and environmental remediation. I have also handled issues of federal telecommunications law and ERISA (Employee Retirement Income Security Act) preemption, and I have represented individuals in actions brought by federal agencies to collect on federally insured student loans.
Also, claims I have defended on behalf of corporations include accounting malpractice, negligence in building design and construction, and negligence in elevator repair. I have also handled a lender liability counterclaim, on behalf of a bank, for negligent preservation of collateral (the bank itself, pledged as collateral for a large infusion of capital by its major lender, which then assumed a management role).
I have handled claims for copyright violation asserted by an author against a national magazine for unconsented edits changing the substance of his article; for trademark and copyright violations asserted by a clothing manufacturer against a competitor (including claims for violation of Florida's "little FTC Act); and for trademark violations asserted by a major insurer against a counterfeiter in the issuance of a performance bond. In that case, an ex parte counterfeiting seizure order was obtained and documents seized in conjunction with the United States Marshals Service.
I serve as Of Counsel for Antitrust to a Miami area health care law firm. Among other matters, I advise it as to its litigation on behalf of a Florida public hospital against a vertically integrated private healthcare system in Florida.
Also, one of my published articles addresses use of Florida's "litte FTC Act" for Antitrust litigation.
Call my Bethesda-based law firm at 301-657-4680 or email me.