ales and growth of the company’s product in the hard seltzer market in 2021. The court held that the plaintiffs failed to identify any misleading statements and dismissed the case with prejudice.The court held that the challenged statements were inactionable expressions of opinion or forward-looking statements concerning the company’s performance. For example, the court reasoned that statements made by a company executive when asked to make predictions in May 2021 about the hard seltzer market as the country emerged from the COVID-19 pandemic were “quintessential statements of opinion about the future” and thus not actionable.The court also reasoned that a statement quoted in a June 2021 article about the company’s “confidence” was an expression of general corporate optimism and thus not actionable. Notably, the court also found that the plaintiffs’ characterization of several statements as misleading was unfounded given the company reported accurate financial results._______________1 15 U.S.C.A. § 12(a) (West).2Pinter v. Dahl, 486 U.S. 622, 643 (1988).3See, e.g., Capri v. Murphy, 856 F.2d 473, 478–79 (2d Cir. 1988) (finding that statutory seller liability failed to apply to the defendant coal mining venture because there was no evidence its promoters actually solicited the plaintiffs’ investment); Craftmatic Sec. Litig. v. Kraftsow, 890 F.2d 628, 636 (3d Cir. 1989) (noting that “[t]he purchaser must demonstrate direct and active participation in the solicitation of the immediate sale to hold the issuer liable as a § 12(2) seller,” to incur seller liability within the context of an initial public offering); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1307 (10th Cir. 1998) (dismissing the plaintiff investor’s Section 12 allegations due to a lack of evidence demonstrating the defendant promoters actively solicited his stock purchase).4 See Wildes v. BitConnect Int’l PLC, 25 F.4th 1341 (11th Cir. 2022), cert. denied sub nom. Arcaro v. Parks, 143 S. Ct. 427 (2022); Pino v. Cardone Cap., LLC, 5

y 1 | Akin Gump Strauss Hauer & Feld LLPUtah Consumer Privacy Act: What Businesses Need to Know | Akin (akingump.com)Iowa Data Protection Act: What Businesses Need to Know | Akin Gump Strauss Hauer & Feld LLPTennessee Information Protection Act: What Businesses Need to Know | Akin Gump Strauss Hauer & Feld LLPTexas Data Privacy Act: What Businesses Need to Know | Akin Gump Strauss Hauer & Feld LLPIndiana Data Protection Act: What Businesses Need to Know | Akin Gump Strauss Hauer & Feld LLPKey Takeaways from Akin’s CCPA Litigation and Enforcement Report | Akin (akingump.com)1 P.L.2023, c.266 (New Jersey).2Id. § 1.3 Id.4 Id.5 “HIPAA” refers to the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health (HITECH) Act of 2009 and their implementing regulations (codified at 45 C.F.R. parts 160 and 164).6Id. § 10.7Id. § 10(h).8Id. § 1.9 This refers to secondary market institutions identified in 15 U.S.C. § 6809(3)(D) and 12 C.F.R. §1016.3(l)(3)(iii), namely institutions chartered by Congress to engages in secondary market sales or similar transactions “or similar transactions related to a transaction of a consumer, as long as such institutions do not sell or transfer nonpublic personal information to a nonaffiliated third party.”10Id. § 10.11Id. § 7(a).12Id. § 8(b)(1).13Id. § 8(b)(2).14Id. § 4(a).15Id. § 4(f).16Id. § 9(a)(1).17Id. § 9(a)(2).18Id. § 9(a)(3).19Id. § 9(a)(4).20Id. § 9(a)(5).21Id. § 9(a)(6).22Id. § 9(a)(7).23Id. § 2(a), 3(a).24Id. § 13(e).25Id. § 9(a).26Id.27Id. § 13(b).28Id. § 13(c).29Id. § 14(b).30Id. § 16.

While businesses should be able to use their current privacy compliance programs to account for most of the Act's statutory requirements, the Act imposes several unique obligations, increasing enforcement risk. Moreover, the OAG's rulemaking authority allows for possibly additional obligations and interpretations of the Act like the rules under California's, Colorado's, and Florida's privacy laws. As a result, proper and timely privacy compliance should be prioritized for businesses that do business and target consumers in New Jersey. The Act defines "decisions that produce legal or similarly significant effects concerning the consumer" as "decisions that result in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health care services, or access to essential goods and services." Other exclusions include the secondary market institutions identified in 15 U.S.C. § 6809(3)(D) and 12 C.F.R. § 1016.3(l)(3)(iii); an insurance institution subject to P.L.1985, c.179 (C.17:23A-1 et seq.); the sale of a consumer's personal data by the New Jersey Motor Vehicle Commission that is permitted by the federal "Drivers' Privacy Protection Act of 1994," 18 U.S.C. § 2721 et seq.; personal data collected, processed, sold, or disclosed in compliance with the Fair Credit Reporting Act; any State agency as defined in section 2 of P.L.1971, c.182 (C.52:13D-13), any political subdivision, and any division, board, bureau, office, commission, or other instrumentality created by a political subdivision; or personal data that is collected, processed, or disclosed, as part of research conducted in accordance with the Federal Policy for the protection of human subjects pursuant to 45 C.F.R. Part 46 or the protection of human subjects pursuant to 21 C.F.R. Parts 50 and 56.5. As noted above, GLBA entities and data are excluded from the Act. The Act also includes in the definition of sensitive

least 100,000 consumers, excluding Personal Data processed solely for the purpose of completing a payment transaction; or (b) control or process the Personal Data of at least 25,000 consumers and the controller derives revenue, or receives a discount on the price of any goods or services, from the sale of Personal Data.In addition to excluding Personal Data relating to persons acting in a commercial or employment context (i.e. business-to-business contact information and employee Personal Data), the Data Act also excludes certain entities and certain categories of Personal Data from its scope, including:Protected health information collected by covered entities and business associates subject to Health Insurance Portability andAccountability Act of 1996 (HIPAA) and Health Information Technology for Economic and Clinical Health Act (HITECH Act);Financial institutions and data subject to Gramm-Leach-Bliley Act (GLBA);Secondary market institutions identified in 15 U.S.C. s.6809(3)(D) and 12 C.F.R. s.1016.3(l)(3)(iii);An insurance institution subject to New Jersey’s P.L.1985, c.179 (C.17:23A-1 et seq.);State agencies as defined in section 2 of P.L.1971, c.182 (C.52:13D-13);Personal Data that is collected, processed, or disclosed, as part of research conducted in accordance with the Federal Policy for the protection of human subjects pursuant to 45 C.F.R. Part 46 or the protection of human subjects pursuant to 21 C.F.R. Parts 50 and 56;The sale of a consumer’s Personal Data by the New Jersey Motor Vehicle Commission that is permitted by the federal Drivers' Privacy Protection Act; andPersonal Data collected, processed, sold, or disclosed by a consumer reporting agency, as defined in Fair Credit Reporting Act (FCRA).2. Consumer RightsThe Data Act grants consumers broad rights, including rights to:Confirm whether a controller processes the consumer’s Personal Data and accesses such Personal Data;Correct inaccuracies in the consumer’s Personal Data;Delete Personal Data;Obtain

sing under the Sherman and Clayton Acts, but specifically carved out actions brought under Section 4A of the Clayton Act, which is the section empowering the government to bring antitrust actions for damages (thus putting the Antitrust Division's actions for damages within the JPML's reach).The former law, 28 U.S.C. § 1407, also had a subsection (h), which explicitly provided that "the [JPML] may consolidate and transfer with or without the consent of the parties . . . any action brought under section 4C of the Clayton Act"—which is the provision of the Clayton Act empowering State Attorneys General to enforce the antitrust laws.The new law makes two important edits to 28 USC § 1407, one three-word addition, and two deletions:(g) Nothing in this section shall apply to any action in which the United States or a State is a complainant arising under the antitrust laws. "Antitrust laws" as used herein include those acts referred to in the Act of October 15, 1914, as amended (38 Stat. 730; 15 U.S.C. 12), and also include the Act of June 19, 1936 (49 Stat. 1526; 15 U.S.C. 13, 13a, and 13b) and the Act of September 26, 1914, as added March 21, 1938 (52 Stat. 116, 117; 15 U.S.C. 56); but shall not include section 4A of the Act of October 15, 1914, as added July 7, 1955 (69 Stat. 282; 15 U.S.C. 15a).(h) Notwithstanding the provisions of section 1404 or subsection (f) of this section, the judicial panel on multidistrict litigation may consolidate and transfer with or without the consent of the parties, for both pretrial purposes and for trial, any action brought under section 4C of the Clayton Act.By striking the last phrase of § 1407(g), the new law treats DOJ Antitrust Division cases seeking damages the same as DOJ actions seeking criminal sanctions or injunctive relief—that is, the new law excludes all Antitrust Division actions from eligibility for JPML consolidation. The other two edits—the addition of "or a State" to subsection (g) and the complete deletion of subsection (h)—now pu

Although state and federal regulators have scrutinized convenience fees in the past, the recent overt hostility at the state and federal level creates risk for creditors, servicers, and debt collectors who might ask a customer to pay those fees.By way of background, the federal Fair Debt Collection Practices Act ("FDCPA") and its implementing regulation, Regulation F ("Reg F") prohibit a debt collector from collecting any amount (including any interest, fee, charge, or expenses incidental to the principal obligation) unless the amount is expressly authorized by the agreement creating the debt or permitted by law. 15 U.S.C. § 1692f(1), 12 C.F.R. § 1006.22(b). It is uncommon for credit agreements to expressly contract for convenience fees.

For over 25 years, the enforcement of the Sherman Antitrust Act (26 Stat. 209, 15 U.S.C. 1 et seq.) (Sherman Act), the Clayton Antitrust Act (Public Law 63-212, 38 Stat. 730, 15 U.S.C. 12 et seq.) (Clayton Act), or other laws and rulings such as 15 U.S.C. § 18 and Standard Oil Co. v. United States, 221 U.S. 1 (1911), were things that would need to be considered in IP transactions but were not driving factors in IP transactions, IP licensing, or IP prosecution.

5See Campo v. Allstate Ins. Co., 562 F.3d 751 (5th Cir. 2009) (granting summary judgment for insurer because the action related to claims handling)6See Group Life & Health Ins. Co. v. Royal Drug Co., 440 U.S. 205, 214, 99 S. Ct. 1067, 59 L. Ed. 2d 261 (1979) (finding that agreements providing for risk spreading, not risk reduction, fall under the definition of the “business of insurance” and are therefore exempt from federal antitrust liability).7 15 U.S.C. §§ 12 et seq. (2009); 15 U.S.C. §§ 1 et seq. (2009); 15 U.S.C. §§ 41 et seq. (2009).8See “Daines, Leahy Bipartisan Bill Promoting Affordable Health Insurance Passes Senate, Heads to President’s Desk,” (Dec. 22, 2020) https://www.leahy.senate.gov/press/daines-leahy-bipartisan-bill-promoting-affordable-health-insurance-passes-senate-heads-to-presidents-desk-.

However, as our economy becomes more integrated and several companies expand outside of their original business models (Amazon’s purchasing Whole Foods, for example), regulators are expressing greater concern about the anticompetitive effect of vertical mergers. In 2018, the government unsuccessfully challenged the merger between Time Warner, an entity that creates media content, and AT&T, a downstream entity that distributes it.Under the Clayton Act, 15 U.S.C. § 12, et. seq., the government and private parties may prevent mergers when “the effect of such acquisition may be to substantially lessen competition, or to tend to create a monopoly.” 15 U.S.C. § 18 (emphasis added).

Judicial review is limited to the Court of Appeals for the District of Columbia Circuit or the Court of Appeals in the Circuit in which the "ultimate parent entity" of the manufacturer is incorporated, as of the date the manufacturer 1) obtains the "underlying" composition of matter patent, or 2) files an NDA or BLA on the molecule that is the subject of the proceedings (but not the Federal Circuit, despite the focus on patents in the bill; perhaps the Senators agree with former 7th Circuit Chief Judge Wood). The bill also provides for "equitable" remedies, including disgorgement of any "unjust enrichment" and restitution, each such penalty being limited to a period of 5 years after the latest date of such unjust enrichment.The bill expressly recites that its provisions in no way "shall modify, impair, limit, or supersede" application of the antitrust laws under the Clayton Act (15 U.S.C. § 12(a)) or the FTC Act (15 U.S.C. § 45) with regard to unfair competition, and that the FTC is empowered to establish rules to carry out the provisions of the bill should it be enacted into law. The provisions of the bill can be applied to any activity or conduct that arises "on or after" the date of enactment.The legislative drug pricing bandwagon is getting bigger and more crowded, with some proverbial "strange bedfellows" coming together to address the problem.