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FTC Adds Defendant in Case Against Allegedly Bogus Precious Metals Dealers

The Federal Trade Commission has named an additional defendant as part of its case against a telemarketing operation that allegedly conned senior citizens into buying precious metals on credit without clearly disclosing significant costs and risks, including the likelihood that consumers would have to pay more money or lose their investment. According to papers filed with the court, the scheme took in more than $37 million from consumers. In May 2011, the FTC charged Harry R. Tanner, Jr., and his wife, Andrea Tanner, and their company, American Precious Metals LLC, with violating the FTC Act and the FTC’s Telemarketing Sales Rule. The court subsequently halted the defendants’ allegedly deceptive practices pending a trial, froze their assets, and appointed a receiver to oversee the business. The amended complaint announced today adds Sam J. Goldman as a defendant.

The Commission vote to file the amended complaint against was 5-0. The amended complaint was filed in the U.S. District Court for the Southern District of Florida on October 11, 2011. (FTC File No. X110036; the staff contact is Dama Brown, FTC’s Southeast Region, 404-656-1361.)

For information about investing in precious metals, the FTC offers Investing in Gold? What’s the Rush?, Investing in Bullion and Bullion Coins and Investing in Collectible Coins.

NOTE: The Commission files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the defendant has actually violated the law. The case will be decided by the court.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC’s online Complaint Assistant or call
1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 2,000 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC’s website provides free information on a variety of consumer topics. Like the FTC on Facebook and follow us on Twitter.

(American Precious Metals)

FTC Adds New Protections for Consumers Seeking to Work from Home

The Federal Trade Commission has approved changes to its Business Opportunity Rule that will ensure that consumers have the information they need when considering buying a work-at-home program or any other business opportunity. The changes simplify the disclosures that business opportunity sellers must provide to prospective buyers. The simplified disclosures will help prospective purchasers assess the risks of buying a business opportunity, while minimizing compliance burdens on businesses.

In addition, the Final Rule, which will be effective on March 1, 2012, applies to business opportunities previously covered under the Rule, as well as work-at-home offers such as envelope stuffing and craft assembly opportunities. The final Rule requires business opportunity sellers to give consumers specific information to help them evaluate a business opportunity. Sellers must disclose five key items of information in a simple, one-page document:

the seller’s identifying information;
whether the seller makes a claim about the purchaser’s likely earnings (and, if the seller checks the “yes” box, the seller must provide information supporting any such claims);
whether the seller, its affiliates or key personnel have been involved in certain legal actions (and, if yes, a separate list of those actions);
whether the seller has a cancellation or refund policy (and, if yes, a separate document stating the material terms of such policies); and
a list of persons who bought the business opportunity within the previous three years.

Misrepresentations and omissions are prohibited under the Rule, and for sales conducted in languages other than English, all disclosures must be provided in the language in which the sale is conducted.

Consumers should use the disclosure document and supplementary information to fact-check sellers’ sales pitches. This information will be helpful to consumers like Teresa Yeast, a stay-at-home mother who purchased a craft-assembly work-at-home program from a company called Darling Angel Pin Creations. The FTC filed a law enforcement action against that company in February 2010 for allegedly claiming that consumers could make hundreds of dollars assembling angel pins at home. “It’s important to be skeptical and to be cautionary when you’re approached with … a business opportunity,” Mrs. Yeast said. “I saw an opportunity that looked great, and took it. They took my money.”

The announcement of a final Business Opportunity Rule completes the process that started when the Commission published an Initial Notice of Proposed Rulemaking and proposed creating a Business Opportunity Rule separate from the Franchise Rule. The FTC issued a Revised Proposed Business Opportunity Rule and conducted a public workshop, and the staff issued a Staff Report. At every stage of the Rule amendment proceeding, the Commission solicited comment on the economic impact of the Rule, as well as the costs and benefits of each proposed amendment. In issuing the final Rule, the Commission has carefully considered the comments received and the costs and benefits of each amendment.

To find out more about business opportunity sellers’ compliance obligations, read Selling a Work-at-Home or Other Business Opportunity? Revised Rule May Apply to You or watch this new video. Consumers thinking about buying a business opportunity should read Looking to Earn Extra Income? Rule Helps You Avoid Bogus Business Opportunity Offers to learn more about the final Rule.

The Commission vote approving the final amendments to the Business Opportunity Rule was
4-0.

(Bus Opp Rule)

Nation’s Largest Pool Products Distributor Settles FTC Charges of Anticompetitive Tactics

Pool Corporation (PoolCorp), the largest distributor of swimming pool products in the United States, has agreed to stop anticompetitive tactics that it allegedly has been using to keep out new competitors in local markets around the nation, as part of a settlement that resolves charges by the Federal Trade Commission.

PoolCorp distributes products used in the construction, renovation, repair, service, and maintenance of residential and commercial swimming pools. The FTC charged that for the past eight years, PoolCorp, based in Covington, Louisiana, used its monopoly power to thwart entry by new competitors by blocking them from buying pool products directly from manufacturers. The strategy significantly raised the costs incurred by its rivals, thereby lowering sales, increasing prices, and reducing the number of choices available to consumers, the agency alleged.

Specifically, the FTC contends that PoolCorp threatened manufacturers of pool products that PoolCorp would not sell their products at any of its 200 distribution centers if manufacturers also sold their products to new distributor rivals. According to the complaint, PoolCorp’s threats were significant because the loss of PoolCorp sales could be catastrophic to even the largest pool products manufacturer. As a result, the agency alleged, these threats were effective, and manufacturers representing more than 70 percent of all pool products sales refused to sell to new distributors. In order for a distributor to succeed, the FTC alleged, it must be able to buy pool products directly from manufacturers because there are no cost-effective alternatives.

The FTC alleges that PoolCorp’s conduct impeded new distributors from entering the market, raised the costs of new distributors, and likely resulted in higher prices. The FTC alleged that the company’s tactics constituted illegal exclusionary acts and practices. There allegedly was no pro-competitive rationale for PoolCorp’s exclusionary conduct.

The proposed order settling the charges is intended to remedy PoolCorp’s alleged anticompetitive conduct. It prohibits PoolCorp from:

Conditioning the purchase or sale of pool products, or membership in PoolCorp’s preferred vendor program, on the intended or actual sale of pool products by a manufacturer to any other distributor;
Pressuring, urging, or otherwise coercing manufacturers to stop selling, or to limit their sales, to any other distributor; and
Discriminating or retaliating against a manufacturer for selling, or intending to sell, pool products to any other distributor.

The settlement order also requires PoolCorp to put in place an antitrust compliance program to ensure it does not violate the terms of the order in the future.

The Commission vote approving the complaint and proposed consent order was 3-1, with Commissioner J. Thomas Rosch voting no and issuing a separate dissenting statement. Chairman Jon Leibowitz, Commissioner Edith Ramirez, and Commissioner Julie Brill also issued a joint separate statement.

In their separate statement, Chairman Leibowitz, Commissioner Ramirez, and Commissioner Brill wrote that, “As alleged in the Complaint, PoolCorp’s actions foreclosed new entrants from obtaining pool products from manufacturers representing more than 70 percent of sales . . . The harm to consumers that occurred as a result was substantial. In the end, consumers had fewer choices and were forced to pay higher prices for pool products.”

Commissioner Rosch wrote that he would have closed the investigation because there is insufficient evidence that a violation had occurred. In his view, the evidence showed that manufacturers had legitimate reasons to withhold supply from the de novo entrants, that entry was not prevented because entrants had other sources of supply, and that consumers were not harmed. Accordingly, there was no “reason to believe” that a violation occurred or that accepting the proposed consent decree would be in the public interest, as required by Section 5(b) of the FTC Act.

The proposed order will be published in the Federal Register shortly, and will be subject to public comment for 30 days, until December 22, 2011, after which the Commission will decide whether to make it final.

NOTE: The Commission issues a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The issuance of a complaint is not a finding or ruling that the respondent has violated the law. A consent order is for settlement purposes only and does not constitute an admission of a law violation. When the Commission issues a consent order on a final basis, it carries the force of law with respect to future actions. Each violation of such an order may result in a civil penalty of up to $16,000.

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an email to [email protected], or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook and follow us on Twitter.

(FTC File No. 101-0115)
(PoolCorp.final)

FTC Announces Agenda, Panelists for Facial Recognition Workshop

Face Facts: A Forum on Facial Recognition Technology
December 8, 2011

8:30 am Registration 9:30 am Welcome & Introductory Remarks: Chairman Jon Leibowitz 10:00 am Panel 1 – Facial Detection & Recognition Technology: How Does It Work? Moderator: Edward W. Felten, Chief Technologist, FTC Panelists: Ralph Gross, Postdoctoral Fellow, Carnegie Mellon University Dr. P. Jonathon Phillips, Electronic Engineer, NIST 10:30 am Break 10:45 am Panel 2 – Facial Detection: Uses and Ramifications Moderators: Mark Eichorn, Assistant Director,
Division of Privacy and Identity Protection, FTC Manas Mohapatra, Attorney,
Division of Privacy and Identity Protection, FTC Panelists: Fred Carter, Senior Policy & Technology Advisor,
Information and Privacy Commissioner’s Office, Ontario, Canada Andrew Cummins, Chief Strategy Officer, SceneTap Harley Geiger, Policy Counsel, Center for Democracy and Technology Beth Givens, Director, Privacy Rights Clearinghouse Jai Haissman, Founder & CEO, Affective Interfaces Brian Huseman, Senior Policy Counsel, Intel Corporation 12:00 pm Lunch 1:15 pm Remarks: Commissioner Julie Brill 1:30 pm Panel 3 – Facial Recognition: What’s Possible Now and What Does the Future Hold? Moderators: Amanda Koulousias, Attorneys,
Division of Privacy and Identity Protection, FTC Jessica Lyon, Attorneys,
Division of Privacy and Identity Protection, FTC Panelists: Alessandro Acquisti, Associate Professor, Carnegie Mellon University Chris Conley, Technology & Civil Liberties Fellow, ACLU of Northern California Gil Hirsch, Co-founder and CEO, face.com Benjamin Petrosky, Product Counsel, Google Inc.

2:45 pm Break 3:00 pm Panel 4 – Facial Detection & Recognition: Exploring the Policy Implications Moderators: Maneesha Mithal, Associate Director,
Division of Privacy and Identity Protection, FTC Laureen Kapin, Counsel for International Consumer Protection
Office of International Affairs, FTC Panelists: Joseph J. Atick, Ph.D., Vice Chairman, International Biometrics & Identification Association Daniel Caron, Legal Counsel, Office of the Privacy Commissioner of Canada Pam Dixon, Executive Director, World Privacy Forum Erin Egan, Senior Privacy Advisor & Director, Privacy, Facebook John Verdi, Senior Counsel, Electronic Privacy Information Center Dr. Simon Rice, Principal Policy Adviser (Technology), Information Commissioner’s Office, United Kingdom Daniel J. Solove, John Marshall Harlan Research Professor of Law, George Washington University Law School 4:30 pm Closing
Remarks: Jessica Rich, Deputy Director,
Bureau of Consumer Protection, FTC

FTC Extends Deadline for Comments on Proposed Amendments to the Children’s Online Privacy Protection Rule Until December 23

The Federal Trade Commission has extended until December 23, 2011, the deadline for the public to submit comments on proposed amendments to the Children’s Online Privacy Protection Rule, which gives parents control over what personal information websites and online services may collect from children under 13. In September, the FTC announced that it was proposing amendments to ensure that the Rule continues to protect children’s privacy as online technologies evolve, with comments due by November 28, 2011. Citing the nature and complexity of the questions and issues raised by the proposed amendments, a number of organizations requested that the Commission extend the comment deadline.

The Commission vote to extend the deadline to December 23, 2011 was 4-0.

To file a comment online, write “COPPA Rule Review, 16 CFR Part 312, Project No. P-104503” on the comment, and follow the instructions on the web-based form found at: https://ftcpublic.commentworks.com/ftc/2011copparulereview. To file comments on paper, mail or deliver them to: Federal Trade Commission, Office of the Secretary, Room H-113 (Annex E) 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

FTC Challenges OSF Healthcare System’s Proposed Acquisition of Rockford Health System as Anticompetitive

As part of its ongoing effort to protect U.S. health care consumers,the Federal Trade Commission today challenged OSF Healthcare System’s proposed acquisition of Rockford Health System. The FTC filed an administrative complaint against both hospital systems, charging that the acquisition would substantially reduce competition among hospitals and primary care physicians in Rockford, Illinois, and significantly harm local businesses and patients.

The FTC’s staff will file a separate complaint in federal district court seeking an order to halt the transaction temporarily to preserve competition for Rockford area residents pending the FTC’s administrative proceeding and any subsequent appeals. The federal District Court for the Northern District of Illinois, where the federal court action is to be filed, previously blocked a merger of Rockford hospitals due to antitrust concerns under very similar circumstances.

“If OSF is allowed to acquire Rockford Health System, decades of competition between the defendants’ hospitals would end,” said Richard Feinstein, Director of the FTC’s Bureau of Competition. “This would lead to significantly higher costs that would be passed on to employers and to health care consumers in Rockford.”

According to the FTC’s complaint, OSF’s proposed acquisition of Rockford Health System would violate federal antitrust laws by reducing competition in two markets in the Rockford area: 1) general acute-care inpatient services, and 2) primary care physician services. Specifically, OSF would control 64 percent of general acute-care inpatient services in the Rockford area post-acquisition, and face only one competitor, SwedishAmerican Health System. The two hospitals together would control more than 99 percent of the market for general acute-care services in the Rockford area. In the market for primary care physician services, today there are only three significant primary care physician groups in the Rockford area. The complaint alleges that, post-acquisition, OSF and SwedishAmerican together would control almost 60 percent of all primary care physician services.

This significant consolidation would give OSF greater leverage to raise rates, the complaint alleges, which would impose a significant financial burden on local employers and employees, either directly or through higher insurance premiums, co-pays, and other out-of-pocket expenses. The complaint also charges that OSF’s proposed acquisition would increase the incentives and ability for the two remaining hospitals in Rockford to engage in coordinated anticompetitive behavior, including sharing confidential information, deferring competitive initiatives, or aligning managed care contracting strategies. Importantly, the complaint alleges that OSF’s acquisition of Rockford Health System would also eliminate vital non-price competition among the Rockford hospitals, reducing the quality, convenience, and breadth of services provided to local residents.

The Commission vote to issue the administrative complaint and authorize staff to file a complaint seeking a temporary restraining order and preliminary injunction in federal district court was 4-0. A public version of the administrative complaint will be available on the agency’s website shortly, and the evidentiary hearing is scheduled before an administrative law judge at the FTC, beginning on April 17, 2012. The federal district court complaint will be filed in the U.S. District Court for the Northern District of Illinois, Western Division.

NOTE: The Commission issues or files a complaint when it has “reason to believe” that the law has been or is being violated, and it appears to the Commission that a proceeding is in the public interest. The complaint is not a finding or ruling that the named parties have violated the law. The administrative complaint marks the beginning of a proceeding in which the allegations will be ruled upon after a formal hearing by an administrative law judge.

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to [email protected], or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook and follow us on Twitter.

(FTC File No. 111-0102)

FTC Seeks Public Comment on Energy Labels for Home Heating and Cooling Equipment

The Federal Trade Commission is seeking public comment on new energy labeling requirements for residential furnaces, central air conditioners, and heat pumps, to help consumers and businesses install equipment appropriate for their location under the Department of Energy’s new regional efficiency standards.

The new DOE standards are mandated by the Energy Policy and Conservation Act (as amended by the Energy Independence and Security Act of 2007), which also directs the FTC to determine how energy efficiency information should be communicated to consumers, such as through labeling. Unlike existing DOE standards, which impose uniform, national efficiency levels for heating and cooling equipment, the new efficiency standards for certain products vary by region. To promote compliance with the new standards, the FTC will develop new labeling or other required disclosures to help consumers and industry members choose and install the correct equipment for their particular location.

The FTC’s Appliance Labeling Rule currently requires yellow EnergyGuide labels for heating and cooling equipment that disclose the product’s efficiency rating and a comparison of the highest and lowest ratings for all similar models. The FTC seeks public comment on how best to develop consumer and industry disclosures regarding the new standards for residential furnaces, central air conditioners, and heat pumps, including possible revisions to the current EnergyGuide label.

The Commission vote approving the Advance Notice of Proposed Rulemaking was 5-0. It is available on the FTC’s website and as a link to this press release and will be published in the Federal Register soon. Instructions for filing comments appear in the Federal Register Notice. Comments must be received by January 10, 2012. All comments received will be posted at www.ftc.gov/os/publiccomments.shtm. (FTC File No. P114202; the staff contact is Hampton Newsome, Bureau of Consumer Protection, 202-326-2889)

(Energy Labeling – Furnace, AC)

FTC Issues Performance and Accountability Report for Fiscal Year 2011

The Federal Trade Commission has issued its Fiscal Year (FY) 2011 Performance and Accountability Report. The report shows American taxpayers how the FTC has managed its resources, highlights major accomplishments in fulfilling the FTC’s two core goals of protecting consumers and promoting competition, and outlines plans for addressing future challenges.

As required by the Reports Consolidation Act of 2000, the Performance and Accountability Report combines the FTC’s performance report and its financial statements and audit opinion. The report compares and evaluates the agency’s performance against the established measures and targets in the FTC’s 2009 to 2014 Strategic Plan and the annual Performance Plan required under the Government Performance and Results Act of 1993. In FY 2011, ending September 30, 2011, the FTC met or exceeded 88 percent of its performance measures (35 out of 40). The FY 2011 independent financial audit resulted in the FTC’s fifteenth consecutive unqualified opinion, the highest audit opinion available.

The Commission vote to release the Performance and Mission Challenges sections of the report was 4-0. The report can be found on the FTC’s website and as a link to this press release. (FTC File No. P859900, the staff contact is Valerie Green, 202-326-2901.)

(FYI 45.2011.wpd)

FTC Seeks Public Comments on Trustee’s Proposal in Tops Markets Matter to Sell Former Penn Traffic Supermarket in Bath, New York to Save-A-Lot

The Federal Trade Commission is seeking public comments on an application filed by the Divestiture Trustee in the Tops Markets matter seeking approval to sell one former Penn Traffic supermarket to Moran Foods, Inc., d/b/a Save-A-Lot, Ltd., a wholly owned subsidiary of SuperValu. Pursuant to an FTC order settling charges that Tops Markets’ January 2010 acquisition of the bankrupt Penn Traffic Company supermarket chain would be anticompetitive, the Commission appointed The Food Partners as the Trustee to sell certain former Penn Traffic supermarkets.

In its application to the FTC, the Trustee proposes to sell the former Penn Traffic supermarket located at 404 West Morris Street in Bath, New York, to Save-A-Lot. The Bath supermarket must be sold by December 27, 2011, to comply with the Commission’s order.

The FTC is accepting public comments on the Trustee’s application until December 19, 2011, after which it will decide whether to approve the sale. Written comments should be sent to: FTC Office of the Secretary, 600 Pennsylvania Ave., N.W., Washington, DC 20580. Comments can be filed electronically on the FTC’s website. Copies of the application also can be found on the FTC’s website and as a link to this press release. (FTC File No. 101-0074, Docket No. C-4295; the staff contact is Elizabeth A. Piotrowski, Bureau of Competition, 202-326-2623; see press release dated August 4, 2010.)

The FTC’s Bureau of Competition works with the Bureau of Economics to investigate alleged anticompetitive business practices and, when appropriate, recommends that the Commission take law enforcement action. To inform the Bureau about particular business practices, call 202-326-3300, send an e-mail to [email protected], or write to the Office of Policy and Coordination, Bureau of Competition, Federal Trade Commission, 601 New Jersey Ave., Room 7117, Washington, DC 20580. To learn more about the Bureau of Competition, read Competition Counts. Like the FTC on Facebook and follow us on Twitter.

(FYI 46.2011.wpd)

FTC Approves BASF’s Application to Extend Manufacturing Agreement Related to 2009 Acquisition of Ciba; FTC Approves ConocoPhillips’ Application to Modify Final Commission Order and to Amend Licensing Agreements with Holly Corp.

FTC Approves BASF’s Application to Extend Manufacturing Agreement Related to 2009 Acquisition of Ciba

The Federal Trade Commission has approved an application by global chemical company BASF SE to extend a manufacturing agreement, entered into in compliance with a 2009 settlement order, which imposed certain requirements on BASF’s acquisition of rival Ciba Holding, Inc.

BASF had requested FTC approval to extend an agreement with Dominion Colour Corp., which acquired Ciba’s indanthrone blue (IB) high performance pigment business in January 2010. The FTC settlement order required that the Ciba IB pigment business be sold in order to resolve competition concerns about BASF’s purchase of Ciba. The order also required BASF to enter an agreement – known as a toll manufacturing agreement – to make IB pigment for the acquiring company for up to 30 months to help the acquirer transition production to its own facility.

The FTC approved Dominion as the acquirer of the IB pigment business on December 4, 2009, and also approved the toll manufacturing agreement between BASF and Dominion. The toll agreement will expire in the near future unless it is extended, and the two companies have agreed on an extension. Under the settlement, an extension requires the FTC approval.

The Commission vote approving the application was 4-0. Copies of BASF’s application can be found on the FTC’s website. (FTC File No. 081-0265; Docket No. C-4253; the staff contact is Daniel P. Ducore, Bureau of Competition, 202-326-2526; see press release April 2, 2009.)

FTC Approves ConocoPhillips’ Application to Modify Final Commission Order and to Amend Licensing Agreements with Holly Corp.

The Federal Trade Commission has approved an application by ConocoPhillips to reopen and modify a final FTC order that settled the agency’s competition concerns arising from Conoco Inc.’s 2002 merger with Phillips Petroleum Company. The FTC has also approved a change to the license agreement that ConocoPhillips has with Holly Corporation, an independent oil refining company. The changes approved by the Commission allow ConocoPhillips and Holly to make the licensing of the “Phillips” and “Phillips 66” brands non-exclusive in two states for the last two years of the FTC-required agreement between them.

As described in the application, the Commission’s order required ConocoPhillips to sell to Holly Corp. a petroleum refinery in Woods Cross, Utah, and to enter into a 10-year exclusive license allowing Holly to use “Phillips,” “Phillips 66,” and related brands at retail gasoline stations in Utah, Idaho, Wyoming, and Montana. ConocoPhillips sold the Woods Cross refinery to Holly in compliance with the FTC order, and the current agreements between ConocoPhillips and Holly include the required exclusive rights.

According to the application, ConocoPhillips and Holly have negotiated an extended agreement that continues the license agreement for seven years in the four states on a non-exclusive basis. As part of those negotiations, Holly and ConocoPhillips entered into an amended agreement that would convert Holly’s Commission-ordered license in Wyoming and Montana from an exclusive license to a non-exclusive license for the two years remaining in the current license. Accordingly, ConocoPhillips requested that the FTC reopen and modify the order to match the terms of the new agreement with Holly by removing the exclusivity requirement in Wyoming and Montana and approve the new agreement. Holly supported the application, which the FTC has now approved.

The Commission vote approving the application was 4-0. (FTC File No. 021-0040, Docket No. C-4058; the staff contact is Daniel P. Ducore, Bureau of Competition, 202-326-2526; see press release dated June 27, 2011.)

(FYI 44.5.2011.wpd)

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