1st Am. Compl. with Prejudice at 25, MGM Resorts Int’l, Case No. 2:23-cv-00140-MMD-DJA (D. Nev. Feb. 14, 2024), ECF No. 160. The court in MGM Resorts International granted the defendants’ motion to dismiss without prejudice, and the defendants have recently filed their motion to dismiss the plaintiffs’ first amended complaint with prejudice.Potentially Significant Exposure in Antitrust Class ActionsAntitrust class actions, especially those consolidated as MDLs, are notoriously complex and expensive to defend, and could result in very substantial financial exposure.Section 1 of the Sherman Act declares as illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. Section 4 of the Clayton Act allows private parties to recover “threefold the damages” sustained from defendants’ violation of Section 1 of the Sherman Act, as well as “reasonable attorney’s fee.” 15 U.S.C. § 15. In addition, the U.S. Supreme Court has held that defendants in violation of the Sherman Act and the Clayton Act are subject to joint and several liability without a right to seek contribution from co-conspirators. See Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 646 (1981). The combination of treble damages, attorneys’ fees, and joint and several liability under the federal antitrust law could lead to damages awards in the hundreds of millions— or even billions—against one defendant.However, winning price-fixing cases under the federal antitrust law is no easy feat for class action plaintiffs. Courts and antitrust/economics scholars have long recognized that there may be procompetitive justifications for agreements among competitors. They are therefore hesitant to impose a categorical conclusion of “per se” violation over them—save for a handful of well-established anticompetitive behaviors that have no procompetitive justifications, such as price-fixing and bid- ri

ate brokerage companies and the National Association of Realtors, alleging a breach of the Federal Antitrust law.This verdict is against specifically named parties but already it has encouraged plaintiff's lawyers to file class actions against brokerage companies for potential Antitrust lawsuits and for parties to real estate transactions to question real estate brokers as to whether they should have to pay commissions.Real estate brokerage companies must analyze their Antitrust policies and meet with their salespeople to verify their companies are in compliance with the law.The jury's verdict was based on a finding that brokerage companies allegedly acted collectively to fix their brokerage commissions, resulting in higher paid commissions by parties to real estate transactions. This verdict is against specifically named parties and will be appealed but is encouraging plaintiff's lawyers to sue brokerage companies for potential Antitrust lawsuits since the Antitrust law (Clayton Act; 15 U.S.C.S. Sec. 15) allows the prevailing party to collect attorney's fees and for parties in real estate companies to question real estate brokers as to whether they should have to pay commissions.Since this is a federal issue, real estate brokerage companies across our footprint must analyze their Antitrust policies and meet with their salespeople to verify their companies are in compliance with the law. Among other steps we recommend is that companies ensure that their real estate brokers are reducing their commission rate agreements with their seller and buyer customers to writing.

The following document provides a monthly roundup summarizing enforcement actions, guidance, rulemakings, and other public statements from the Consumer Financial Protection Bureau and the Federal Trade Commission regarding the prohibition on unfair, deceptive, or abusive acts or practices (UDAAP) in the marketplace for consumer financial services.Enforcement and LitigationConsumer Financial Protection Bureau & Federal Trade Commission. Fair Credit Reporting Act (FCRA). CFPB & FTC filed a joint complaint and stipulated proposed order against a rental screening subsidiary of a credit reporting agency for alleged violations of 15 U.S.C. §§ 1681-1681x (FCRA) and 15 U.S.C. § 45(a) (FTC Act), related to ensuring maximum possible accuracy of its tenant screening reports and for failing to honor security freeze and lock requests. In particular, the agencies alleged that the subsidiary failed to take steps to ensure the rental background checks that landlords use to decide who gets housing were accurate, and that the subsidiary also withheld from renters the names of third parties that were providing the inaccurate information. (Alleged UDAAP violations: deceptive, unfair).Federal Trade Commission & Commodity Futures Trading Commission. Digital Assets & Fraud. FTC announced a settlement with a bankrupt cryptocurrency company to resolve allegations that the company falsely claimed that customers' accounts were "safe" because they were insured by the FDIC, when those assets were not in fact insured, in violation of 15 U.S.C. § 45(a) (FTC Act) and U.S.C. § 6821 (GLB Act). The settlement permanently bans the company from handling consumers' assets. FTC a

g., No. 13-CV-9244, 2015 WL 5610752, at *26 (S.D.N.Y. 2015), rev’d on other grounds, 848 F.3d 89 (2d Cir. 2017) (Takeda’s accelerators to Mylan, Ranbaxy, and Actavis allowing each to launch if other generics do so not an alleged payment).34Xyrem, 555 F. Supp. 3d at 860-63; see alsoStaley v. Gilead Sciences, Inc., 446 F. Supp. 3d 578, 611 (N.D. Cal. 2020) (Gilead’s agreement to withhold licenses to any other generics until six months after Teva’s generic’s entry found to be an alleged payment); David Shotlander and Ralph Labaton, Xyrem: Pharmaceutical Settlement Acceleration Clause Found Anticompetitive Due to Risk of “Profit Crushing Competition”, available at https://www.jdsupra.com/legalnews/xryem-pharmaceutical-settlement-2711273 (Dec. 2, 2021).35Actavis, 570 U.S. at 156.36Cephalon, 88 F. Supp. 3d at 418.37In re Namenda Indirect Purchaser Antitrust Litig., 331 F. Supp. 3d 152, 199 (S.D.N.Y. 2021) (citing Cephalon, 88 F. Supp. 3d at 417).38Lipitor, 868 F.3d at 253-54.39Id. at 253.40 15 U.S.C. § 15 (damages available only to those who suffer an injury as a result of an antitrust violation).41Nexium, 42 F. Supp. 3d at 296.42Id.43Id.44 Brendan Pierson, U.S. Court Upholds AstraZeneca, Ranbaxy Win in Nexium Antitrust Trial, Reuters (last accessed Sept. 10, 2023), https://www.reuters.com/article/astrazeneca-nexium-appeal-idUSL1N1DM1W2.45Asacol, 233 F. Supp. 3d at 259.46Id.47Id.48EpiPen, 336 F. Supp. 3d at 1295.49Seroquel, 2022 WL 2438934 at *12.50Amitiza, 2022 WL 17968695 at *4.51Seroquel, 2022 WL 2438934, at *13.52In re Wellbutrin XL Antitrust Litig., 868 F.3d 132, 165 (3d Cir. 2017) (affirming summary judgment for defendants upon finding that the but for the settlement the patent dispute would have blocked generic launch as Anchen had only a 20% chance of winning the patent litigation).53Actavis, 136 US at 157.54Eastman Kodak Co. v. Image Tech. Servs., 504 U.S. 451, 464 (1992).55HIV, 2023 WL 3088218 at *11.56Id.57 Bonnie Eslinger, Attys For Gilead, Drug Buyers Trade Barbs As $3.6B

74. Order 5, ECF No. 874. Order 5, ECF No. 874. Pl’s Memo in Supp. Summ. J. 63, ECF No. 640. Pl’s Memo in Supp. Summ. J. 49, ECF No. 640.See Pl’s Memo in Supp. Summ. J. 49-52, ECF No. 640. Pl’s Memo in Supp. Summ. J. 53-56, ECF No. 640. Def. Memo in Supp. Summ. J. 2, ECF No. 643. Def. Memo in Supp. Summ. J. 2, ECF No. 643. Def. Memo in Supp. Summ. J. 26-28, ECF No. 643. Def. Memo in Supp. Summ. J. 29-30, ECF No. 643. Pl’s Memo in Supp. Summ. J. 69, ECF. No. 640.SEC v. W.J. Howey Co., 328 U.S. 293, at 298–99 (alterations in original). Order 16, ECF No. 874. Order 11-12, ECF No. 874. Order 13, ECF No. 874. Order 12-13, ECF No. 874.SEC v. Telegram, 448 F. Supp. 3d 352, 366 (S.D.N.Y. 2020). Order 16-17, ECF No. 874. Order 16, ECF No. 874. Order 17-18, ECF No. 874. Order 18-22, ECF No. 874. Order 22, ECF No. 874. Order 22, ECF No. 874. Order 22, ECF No. 874. Order 23, ECF No. 874. Order 23, ECF No. 874.Hocking v. Debois, 885 F.2d 1449 (9th Cir. 1989). 15 U.S.C.A § 77B; 15 U.S.C.A. § 78c; & 15 U.S.C.A. § 80a-2. Order 23, ECF No. 874. Order 24, ECF No. 874. Order 22, ECF No. 874. Order 26, ECF No. 874. Order 26-27, ECF No. 874. Order 29-30, ECF No. 874. Order 30, ECF No. 874. Order 29-30, ECF No. 874. Order 29, ECF No. 874.SEC v. LBRY, Inc, No. 21-cv-260-PB, 2022 U.S. Dist. 2022 WL 16744741 (D.N.H. Nov. 7, 2022). Lewis Cohen et al., The Ineluctable Modality of Securities Law: Why Fungible Crypto Assets are Not Securities, DLxLaw. Nov. 2022, at 56-58. Chair Gary Gensler, Testimony at Hearing before the Subcommittee on Financial Services and General Government U.S. Appropriations Committee, U.S. Securities and Exchange Commission (May 17, 2022), https://www.sec.gov/news/testimony/gensler-testimony-fsgg-subcommittee. Chair Gary Gensler, Testimony of Chair Gary Gensler before the United States House of Representatives Committee on Financial Services, U.S. Securities and Exchange Commission (Apr. 18, 2023), https://www.sec.gov/news/testimony/gensler-testimony-house-financial-serv

*]In a decision that may make it more difficult for brand owners to enforce their marks against infringers located outside of the United States, the Supreme Court of the United States vacated the judgment of the US Court of Appeals for the Tenth Circuit and held that Sections 32(1)(a) and 43(a)(1)(A) of the Lanham Act are not extraterritorial and extend only to claims where the alleged infringing trademark use in commerce is domestic. Abitron Austria GmbH v. Hetronic Int’l, Inc., No. 21-1043, 2023 U.S. LEXIS 2789 (June 29, 2023).Justice Samuel Alito delivered the opinion of the Court, in which Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Ketanji Brown Jackson joined. There were two separate concurrences, one by Justice Jackson and one by Justice Sonia Sotomayor, in which Chief Justice John Roberts and Justices Elena Kagan and Amy Coney Barrett joined.IN DEPTHBACKGROUNDThis case focuses on the foreign reach of two Lanham Act provisions, namely, 15 U.S.C. § 1114(1)(a) and 15 U.S.C. § 1125(a)(1), which prohibit the unauthorized use of protected marks in commerce, whether registered or unregistered, when such use creates a likelihood of consumer confusion.Hetronic, a US company that manufactures radio remote controls for heavy-duty construction equipment, sued six foreign distributors and one individual (which were collectively referred to as Abitron) in the US District Court for the Western District of Oklahoma for trademark infringement when Abitron reverse-engineered Hetronic’s products and began manufacturing and selling (mostly in Europe) their own copycat products bearing Hetronic’s “distinctive black-and-yellow color scheme.” The district court rejected Abitron’s argument that Hetronic sought an impermissible extraterritorial application of the Lanham Act, and a jury awarded Hetronic $96 million in damages related to Abitron’s global use of Hetronic’s marks. Abitron was also permanently enjoined from using the marks anywhere in the world.The Tenth Ci

fery Nuziard, et. al. v. Minority Business Development Agency, et. al., Case 4:23-cv-00278-P, challenging certain programs implemented by the Minority Business Development Agency (MBDA) and funding provided to the MBDA by the Infrastructure Investment and Jobs Act. As previously discussed, this lawsuit argues that certain programs implemented by the MBDA are racially discriminatory and violate the Constitution’s Equal Protection Clause because the programs are only available to “socially or economically” disadvantaged individuals, and only certain minority groups are presumed to be socially disadvantaged.On June 5, 2023, the District Court granted Bruckner, Nuziard, and Piper’s motion for a preliminary injunction, and enjoined the Wisconsin MBDA Business Center, the Orlando MBDA Business Center, and the Dallas-Fort Worth MBDA Business Center“from imposing the racial and ethnic classifications defined in 15 U.S.C. § 9501 and implemented in 15 U.S.C. §§ 9511, 9512, 9522, 9523, 9524, and 15 C.F.R. § 1400.1 against Plaintiffs or otherwise considering or using Plaintiffs’ race or ethnicity in determining whether they can receive access to the Center’s services and benefits.”The District Court found that the MBDA’s presumption of social or economic disadvantage for certain ethnicities did not survive strict scrutiny and was therefore unconstitutional racial discrimination.While many federal government contractors may not use MBDA Business Centers, the decision in Nuziard has the potential to significantly impact the Small Business Administration’s 8(a) program. This is because Nuziard successfully challenged the MBDA’s presumption that certain minority groups are socially or economically disadvantaged as unconstitutional racial discrimination, and the SBA’s 8(a) program applies the same type of presumption (and uses language very similar to that at issue in Nuziard) when determining who is socially disadvantaged.Specifically, the MBDA is designed to provide support to minor

entatives of the group” to the federal government.The Texas lawsuit further alleges that Bruckner and his fellow plaintiffs are Caucasian and do not fall into any of the enumerated racial or ethnic groups that are presumed to be comprised of socially or economically disadvantaged individuals and are therefore not eligible for assistance from the MBDA. Bruckner alleges that this limitation on who can receive assistance from the MBDA is racially discriminatory and violates the Equal Protection Clause of the U.S. Constitution. As relief, Bruckner asks the court to declare the MBDA unconstitutional to the extent that it provides Business Center Program services or other benefits and services based on race or ethnicity. Bruckner requests that the court, upon declaring the MBDA unconstitutional on the stated grounds, enjoin the federal government from “imposing the racial and ethnic classifications defined in 15 U.S.C. § 9501 and implemented in 15 U.S.C. §§ 9511, 9512, 9522, 9523, 9524, and 15 C.F.R. § 1400.1 and/or as otherwise applied to the MBDA Business Center Program and other MBDA programs and services, and additionally enjoining Defendants from using the term ‘minority’ to advertise or reference their statutorily authorized programs and services.”Bruckner and his fellow plaintiffs filed a motion for a preliminary injunction. The arguments are likewise similar to those made in Bruckner’s original lawsuit: government efforts to redress discrimination must be in response to specific episodes of discrimination and the federal government has not identified any specific act of discrimination it is attempting to remedy.On April 24, 2023, the federal government responded to that motion. The government argues that each of the plaintiffs lacks standing because:they have not shown a sufficiently concrete or particularized harm because they have not demonstrated that they were “ready and able” or actually planning or in a position to access the services provided by the relevant

the General Services Administration, and the U.S. Postal Service, the Strike Force leverages joint resources to investigate public procurement crimes, employ complementary enforcement and prosecution strategies, eliminate anticompetitive collusion and fraud, and promote the integrity of government procurement. Employing education and state-level liaising, the Strike Force has been remarkably omnipresent and successful in that short time, despite numerous pandemic-related interruptions/delays in the courts. The pace of the Strike Force’s enforcement activity has quickened dramatically in 2022—and shows no signs of slowing in 2023.In its more traditional role, the Strike Force prosecutes criminal violations for bid-rigging and other antitrust violations under Section 1 of the Sherman Act (15 U.S.C. § 1). This is a no-brainer of sorts, but that’s not all it is capable of pursuing. The PCSF has also employed a more expansive interpretation and application of Section 4A of the Clayton Act (15 U.S.C. § 15(a)), which permits any entity (including the government) to recover treble damagesand attorneys’ fees when it is “injured in [its] business or property by reason of anything forbidden in the antitrust laws.” But again, that’s not all.In fact, the Strike Force has also been successful in prosecuting complex fraud and collusion cases, even when they do not present traditional antitrust causes of action. Indeed, several PCSF cases filed this year did not allege any violation of the Sherman Act or the Clayton Act, underscoring that the Strike Force has broadened its original antitrust mandate to pursue bribery and fraud cases in order to protect the integrity of public procurement. The PCSF has displayed a keen ability to successfully police alleged anti-competitive conduct at all levels of government contracting through interagency investigation and collaboration. Just this year, the Strike Force has announced indictments and secured convictions for anticompetitive activity occurring on the

Notes1 The SEC renamed the Office of Compliance Inspections and Examinations (OCIE) the Division of Examinations in December 2020.2 The June 2020 alert provided EXAMS' observations on private fund managers' conflicts of interest, fees and expenses, and policies and procedures related to insider trading. In November 2021, now former Co-Deputy Director of EXAMS, Kristin Snyder, reaffirmed the division's examination priorities for monitoring private fund advisers' compliance risks, including a focus on liquidity and disclosures of investment risks and conflicts of interest.3 Post-Commitment Period refers to the period after the Commitment Period, whereby advisers assess management fees based on capital commitments by fund investors.4 17 CFR § 275.206(4)-8.5 17 CFR § 275.204-2(a)(16).6 17 CFR § 275.206(4)-7.7 15 U.S.C. § 80b–6 and 15 U.S.C. § 80b–15(a), respectively.