Bigelow Jury Verdict Could Increase Challenges To “Made In USA” Labels
The jury in the Banks v. R.C. Bigelow, Inc. litigation has returned its verdict, awarding consumers $2.3 million – short of the $3.26 million that plaintiffs’ counsel had requested. The Banks litigation challenged Bigelow’s “Manufactured in the USA 100%” claim used on some of its tea packaging. Plaintiffs argued that the claim was false because the company imported its tea; however, the company’s position in the litigation was that the claim referred to the US-based facilities where the teas were blended and packaged. Notably, due to an earlier-issued summary judgment order from the judge (finding that the challenged claim was literally false), the only questions before the jury were the amount of damages and whether there was intentional conduct by the company supporting an award of punitive damages. While the jury awarded compensatory damages, it did not find that there was proof sufficient to support a punitive damages award by clear and convincing evidence.
Manufacturers and retailers who wish to affix qualified or unqualified “Made in USA” statements on any products advertised or sold in the United States must comply with the FTC’s Labeling Rule at 16 C.F.R. 323 or Made in USA Policy Statement, respectively, on using these claims. To use an unqualified “Made in USA” claim, the product’s significant parts and processing must be of U.S. origin, containing no or negligible foreign content, and the final assembly should occur in the USA. Even if a product is not “all or virtually all” made in the USA per FTC guidance, advertisers may still be able to make qualified U.S. origin claims. Examples of qualified U.S. origin claims include, “Made in USA from imported parts,” or “60% U.S. content.” A retailer may make any qualified claim about U.S. content that is truthful and substantiated. These qualifications or disclosures should be sufficiently clear and conspicuous to consumers viewing the U.S. origin claim.
The FTC’s U.S. origin regulations are applicable not only to express U.S. origin claims, but also to implied U.S. origin claims. An implied U.S. origin claim may be inferred from the product’s packaging as a whole, including the use of specific phrases, images, and the broader context of the transaction. While references to the USA or American imagery alone might not constitute a U.S. origin claim, these images in combination with explicit language or other elements on the label could run afoul of FTC guidance and may require qualification.
The plaintiffs’ bar has pursued Made in the USA (and other national origin) labeling challenges either by sending demand letters or by filing lawsuits with some consistency over the past 5 years, with a peak 14 pieces of litigation filed in 2021. Due to the outcome in the Banks trial, there is some concern that the bar will refocus its attention on companies that are using “Made In USA” statements or references in their marketing. Companies using such labeling statements should confirm that their labels meet the FTC’s guidance.
Health Care Litigation: Seven Considerations in Forum Selection
Choosing where to resolve a health care dispute can be overwhelming at first glance. After all, in addition to determining where a case can be brought in the first place, there is the question of where it should be brought. The answer will vary based on each case’s unique situation. However, there are at least seven factors that should be considered in all cases.
1. Favorability and Availability of Precedent
Generally, the law will not meaningfully vary between federal jurisdictions or even their state-court counterparts. Nevertheless, researching how the law operates in the various courts may be the difference between winning and losing in a particular case. Whether it is because the law itself is different, the law has been interpreted differently, or there is simply a lack of favorable precedent in one jurisdiction and an abundance in another, there are many ways the law in a particular forum may compel a winning or losing result.
Similarly, particularly complex cases brought before courts with little experience in such cases may result in unexpected or disadvantageous decisions. Consequently, if there is limited precedent in a particular forum, it may be more advantageous to resolve the dispute in another court that regularly deals with the type of case presented, even if precedent in the other forum is slightly less favorable.
2. Evidentiary Considerations
Federal courts, state courts, and arbitration proceedings each may employ different rules of evidence. Federal courts are required to adhere to the Federal Rules of Evidence, while state courts and arbitration proceedings are generally free to adopt any evidentiary rules. Although the rules are often similar, which set of rules is utilized can ultimately influence a particular case’s success, especially in health care litigation.
Consider, for example, that under the Federal Rules portions of learned treatises—referring to a published work considered authoritative in its field—may be used as substantive and impeachment evidence.[1] In contrast, in some state courts, such as Florida, learned treatises may only be used as impeachment evidence. Thus, if a particular case hinges on the fact finder relying upon a learned treatise to prove or disprove a fact or issue, evidentiary considerations suggest the case would be better litigated in federal court.
3. Resolution Speed
Arbitration proceedings are favored for their speed and efficiency as compared to traditional litigation in federal and state courts. Indeed, according to a 2017 published study administered by the American Arbitration Association, cases adjudicated by arbitration take on average 11.6 months to get to trial.[2] Meanwhile, the median time in 2024 for a civil case to get to trial in federal court was 31 months.[3] This efficiency is typically the result of focused discovery, streamlined procedures, and flexible rules. Quickly resolving litigation may be particularly important to health care companies because litigation may impact a company’s valuation, which can have downstream consequences for a merger or acquisition, or ability to borrow.
That said, not all federal and state courts are created equal. Some courts are known for their speedy resolution of cases, such as the Eastern District of Virginia, which in 2024 reported taking a median time of 14.2 months from the filing of a case to the start of a civil trial.[4]
4. Convenience
Parties, witnesses, experts, counsel, and locations pertinent to the litigation may be far away from where a particular courthouse is located. This distance can make it difficult for parties to gather evidence and participate in court proceedings. In arbitration, parties typically agree on where the proceeding will take place to avoid these burdens, and the proceeding may occur in less formal locations, such as a conference room.
5. Costs
Because litigation tends to take longer than arbitration, there will be greater legal fees involved when taking a case to trial. These legal costs will further increase if a case is appealed, which is often unavailable for arbitral decisions except on limited grounds.
Additionally, costs associated with gathering evidence and traveling to court proceedings will be reduced if one courthouse is closer than another. Keep in mind that each court system may charge different fees, and fee amounts can quickly add up.
6. Privacy
Most court proceedings are open to the public, absent certain crimes and cases involving minors. In contrast, arbitration proceedings are held in private. Keep in mind, however, that private does not mean confidential. Thus, although arbitration proceedings are generally conducted behind closed doors and away from the media, parties may be free to disseminate information related to the arbitration.
7. Probable Necessity of an Appeal
If a party anticipates their success will depend upon an appeal, perhaps because of a need to overturn a statute or precedent, arbitration will not likely be advantageous because an arbitrator’s decisions are generally binding on the parties and only appealable on limited grounds, such as fraud, misconduct, or bias. In contrast, state and federal trial court decisions are routinely appealed on substantive, procedural, and constitutional grounds.
In summary, choosing where to resolve a health case dispute is an important and complex decision. An experienced health care attorney can offer thoughtful and insightful advice to help guide you through every step of the decision.
[1] See Fed. R. Evid. 803(18).
[2] Roy Weinstein et. al., Efficiency and Economic Benefits of Dispute Resolution through Arbitration Compared with U.S. District Court Proceedings, Micronomics Economic Research and Consulting (March 2017), 2, http://go.adr.org/rs/294-SFS–516/images/Economic%20Impact%20of%20Delay%20Micronomics%20Final%20Report%20%282017-03-07%29.pdf
[3] United States Courts, https://www.uscourts.gov/data-table-numbers/c-5 (download the Excel spreadsheet “U.S. District Courts – Median Time From Filing to Disposition of Civil Cases, by Action Taken” for the period ending December 31, 2024), Column K, Row 8.
[4] Id. at Column K, Row 37
Court Affirms $1.6B Judgment in Baha Mar Investor Dispute
A New York appeals court has affirmed a $1.6 billion award for the developer of a Bahamas mega project against various subsidiaries of China State Construction Engineering Corporation, the world’s largest construction company by revenue (see BML Properties, Ltd. v. China Construction America, Inc. et al., No. 6567550/17, 2025 WL 1033736 (N.Y. App. Div. Apr. 8, 2025)). The dispute involves construction of the Baha Mar beach resort complex in Nassau. After a series of delays that prevented the resort from opening as planned in March 2015, the developer BML Properties, Ltd., filed for bankruptcy and sued various state-owned entities, including the minority investor, prime contractor, construction manager, and others for breach of contract, fraud, and alter ego theories. After an 11-day bench trial, the lower court pierced the defendants’ corporate veils and awarded the developer $845 million for the loss of its entire investment plus prejudgment interest of $830 million.
The appellate court affirmed. As to veil piercing, the court held that the prime contractor entity exercised complete domination over the other defendants in order to breach the investor agreement, defraud the plaintiff, and cause the collapse of the project. The court also found that the minority investor entity failed to act in the best interests of the project. This included stripping manpower and resources from the project, diverting funds from the project that were meant for subcontractors, and causing or authorizing delays. These breaches of the investor agreement prevented the resort from opening and resulted in the loss of the developer’s entire investment. The appellate court also affirmed the lower court’s fraud finding based on internal communications showing that the construction manager entity knew that a March 2015 opening date – as represented to the developer – was impossible. The appellate court held that these misrepresentations regarding the defendants’ ability to perform were sufficient to support a finding a fraud.
A copy of the court’s decision is available here. The 2,200 room Baha Mar beach resort did eventually open in 2017 at a total estimated cost of $4 billion.
Beijing Intellectual Property Court: Artificial Intelligence Models Can Be Protected with the Anti-Unfair Competition Law, Not the Copyright Law
In what is believed to be a case of first impression in China, on March 31, 2025, the Beijing IP Court, on appeal, ruled that Douyin (TikTok) was entitled to protection of its artificial intelligence (AI) transformation model under Article 2 of the Anti-Unfair Competition Law but not under Copyright Law. Specifically, the Beijing IP Court upheld the original judgement against the defendant/appellant Yiruike Information Technology (Beijing) Co., Ltd. (亿睿科信息技术（北京）有限公司) for violating Douyin’s competitive interest in its transformation model with the B612 app.
Example transformations. Column 1: Selfie, Column 2: Baidu; Column 3: Douyin; Column 4: Yiruike .
The transformation special effects model (including architecture and parameters) was trained by Douyin Company using animated character data hand-drawn by artists and corresponding real-life data, and the model architecture and parameters were continuously adjusted. The model is used for the transformation special effects function in the Douyin application, which can convert photos and videos taken by users in real time into animated character styles. The B612 application operated by Yiruike later launched the animated girl character special effects function, which can also achieve real-time conversion of animated character styles. Douyin believes that Yiruike’s animated girl character special effects model and its transformation animated character special effects model are highly similar in architecture, parameters, etc., constituting infringement, and requested damages and an injunction. After comparison, Beijing IP Court ruled that the models of both parties are highly identical in architecture, convolutional layer data, etc. and Yiruike failed to submit evidence of substantial differences.
The Beijing IP Court pointed out that the competitive interest claimed by Douyin Company in this case is protected by Article 2 of the Anti-Unfair Competition Law and includes the transformation animated character special effects model (the architecture and parameters claimed by the plaintiff in this case). According to the evidence in the case, it can be determined that Douyin Company has invested a lot of resources in the research and development of the transformation special effects model, and the model of the transformation special effects (architecture and parameters) has obtained innovative advantages, operating income and market benefits for Douyin Company, which should constitute a competitive interest protected by the Anti-Unfair Competition Law. Based on the facts ascertained in this case, it can be determined that Yiruike Company directly used the architecture and parameters of the transformation special effects model of Douyin Company without permission. The alleged behavior violated the recognized business ethics in the field of artificial intelligence models, infringed the legitimate rights and interests of Douyin Company, disrupted the market competition order and damaged the long-term interests of consumers, and constituted unfair competition under Article 2 of the Anti-Unfair Competition Law.
Accordingly, the Beijing IP Court upheld the lower court’s decision.
The case numbers are (2023）京73民终3802号 and (2023）京73民终3803号. A redacted copy of the decision can be found here (Chinese only) courtesy of 知产宝.
Court Considers Measure of Damages in California CLRA Case for Deceptive “Made in USA” Claims
A federal jury in the Central District of California has awarded $2.36 million in damages to a consumer class, finding that R.C. Bigelow Inc., without limitation, violated the Consumer Legal Remedies Act and misrepresented that the company’s tea products as were “Manufactured in the USA 100% American Family Owned” and “America’s Classic.”
Here, consumers initiated a class action lawsuit against the tea company, alleging that its branding, packaging and advertising is deceptive because it expressly and/or implied states that its tea is wholly manufactured in America. The consumers further alleged that the products are comprised solely of foreign-sourced tea. They claimed that had they known the truth about the tea that they would not have made the same purchasing decisions.
In July 2023, the court certified a class comprised of all purchasers in California of at least one box of Bigelow tea containing the label at issue between 2017 and 2023.
The class action lawsuit argued that the teas at issue are made from tea leaves that are derived from a plant that are not grown or processed in the United States and are grown in places such as Sri Lanka and India.
The issues before the jurty at trial included whether the company engaged in unfair competition and unfair or deceptive acts under the CLRA, whether the company breached its express warranty that the products were “Manufactured in the USA,” whether the company made the allegedly false statement knowingly or recklessly, and damages.
Despite the company argued that the labels were intended to reference the company’s U.S.-based blending and packaging facilities, the tea bags were manufactured in the United States, and the company owned a tea plantation in the U.S. However, the court found that the teas in question are grown and processed overseas, mostly in China, India, and Sri Lanka. The court further found that the teas undergo processing outside of the U.S. that “transformer” them from raw leaves into a consumable product. Thus, the court found that teas to be processed abroad.
The court held that the tea’s “[m]CLRA in the USA 100%” label was “literally false” because the great majority of the company’s tea is imported from overseas.
Following trial, the jury awarded a class of California tea purchasers $2.36 million in compensatory damages. No punitive damages were awarded.
A damages expert for the class attributed 11.3% of the company’s sales to the purported false label, asserting that consumers overpaid for the tea by $3.26 million. The expert testified that he conducted a study of hundreds of tea buyers and purportedly found that some of those surveyed were willing to pay more for a product that included phrases such as “Manufactured in USA 100% American-Family Owned.”
Takeaway: “Made in USA” representations are heavily policed by the Federal Trade Commission. The “Made in USA Labeling Rule” requires, in part, that for a product to be called Made in USA, or claimed to be of domestic origin without qualifications or limits on the claim, the product must be “all or virtually all” made in the U.S.; (i) final assembly or processing of the product must occur in the United States; (ii) all significant processing must occur in the U.S.; and (iii) all or virtually all ingredients or components must be made and sourced in the U.S. Additionally, the product should contain no – or negligible – foreign content. Stte attorneys general and private plaintiffs also aggressively pursue deceptive U.S. origin claims. More and more frequently, related representations become the subject of consumer class action demand letters and litigation pertaining to violation of the California Consumer Legal Remedies Act, amongst other applicable legal regulations. Importantly, here, the measure of damages for a “Made in the USA” claim was the likely increase in price attributable to eth alleged false representation of origin. This case underscores the importance of manufacturers and marketing that incorporate U.S. origin claims into their advertising, marketing and/or packaging to consult with a seasoned FTC attorney to limit liability exposure for failing to comply with applicable legal regulations, including, but not limited to, state and federal “Made in U.S.A.” requirements, and California’s CLRA.
Court Reversed Order Holding That a Will Had Been Revoked Where There Was No Present Intent to Do So
In In re Estate of Wright, decedent’s son appealed an order finding that his mother died intestate. No. 13-23-00043-CV, 2024 Tex. App. LEXIS 8078 (Tex. App.—Corpus Christi November 21, 2024, no pet. history). The son alleged that on May 7, 2007, the mother executed a holographic will (2007 will) which had not been revoked. His brother filed an amended counter-application for probate of will in which he alleged that on July 20, 1993, the mother executed a will (1993 will) which had not been revoked. In his counter-application, the brother argued that the 2007 will was not valid because:
(1) [did] not purport to revoke the [1993 will] or any prior [w]ills, and could only be construed as a Codicil to the Will submitted herewith, (2) appear[ed] to be written on more than one occasion; (3) contain[ed] two separate dates[;] (4) contain[ed] a curving line over portions of its terms, which line is undated and unsigned; [](5) require[d] clarification as to the terms of the handwritten document itself, and more specifically the terms of the trust mentioned therein including the identity of its corpus, beneficiaries, and trustee(s); (6) was revoked by [Doris] in whole or in part because it indicates that it is “not right” [and] indicates the Decedent “will write new one[.]”
Id. The court held that the 2007 will was effective to revoke the 1993 will, but that the 2007 will was also revoked. So, the trial court held that the decedent died intestate.
The court of appeals reversed the trial court’s order, holding that the 2007 will had not been revoked:
As mentioned above, the trial court’s order concluded that “[Doris’s] May 1, 2007 Holographic Will was revoked by the January 16, 2014[] notations made and signed by [Doris] after her signature of the May 1, 2007 Holographic Will.” The order further concluded that Doris died intestate. In this case, the central dispute between the parties is whether Doris revoked the 2007 will with the language “Not right” and “Will write new one.”
Demry argues, among other things, that the language at issue is “patently not revocatory in nature” and “do[es] not rise to language upon which revocatory intent can be legitimately appended.” Neither of the parties have provided any case authorities holding the language at issue, or similar language, constitutes revocatory intent, and we have found none. Both parties cite to Dean v. Garcia, which concluded that the words “CANCILED [sic]” and “VOID” were “words of cancellation” sufficient to revoke a codicil. 795 S.W.2d 763, 764-66 (Tex. App.—Austin 1989, writ denied). Thomas argues that Dean is “illustrative of how few words are necessary to revoke a testamentary instrument.” However, Demry argues that the language at issue “does not come remotely close to the language in Dean” and does not consitute “present and clear revocative language.” We agree that the language “Not right” and “Will write new one” are not clear “words of cancellation” sufficient to revoke the 2007 will.
Demry further argues that the language “Will write new one” refers to “an intent to undertake an act in the future . . . and therefore do[es] not comply with the legal requirement that revocatory language must constitute a present intent to revoke.” “A present intent to change or revoke a testamentary instrument in the future cannot accomplish revocation of the instrument, nor is it evidence of the revocation.” Here, the language “Will write new one” cannot be reasonably interpreted to constitute a present intent to revoke the 2007 will. A liberal reading of the language, at most, suggests an intent to create a new will in the future, not an intent to revoke the current will wherein this language appears; therefore, we conclude that the “Will write new one” language did not accomplish the 2007 will’s revocation nor is it evidence of its revocation.
Thomas argues that the trial court properly considered extrinsic evidence to determine that Doris intended to revoke the 2007 will through the use of the disputed language. In order for consideration of extrinsic evidence to be proper, the trial court must have first found that the disputed language was ambiguous… As explained above, the disputed language does not constitute clear “words of cancellation” or contain a present intent to revoke the will; thus, we find no patent ambiguity. Similarly, we find no latent ambiguity because the words do not sensibly convey a present intent to revoke the will. Therefore, the trial court erred to the extent it found the disputed language ambiguous as a matter of law and when it considered extrinsic evidence to determine the meaning of the disputed language. Based on the foregoing, we hold that the trial court abused its discretion when it concluded that the disputed language revoked the 2007 will.
Id.
Does a Trustee Have a Duty to Investigate Whether the Trust Document is Valid?
Elderly persons often sign new estate documents, including trusts and trust amendments. Certainly, all persons with competence and without improper influences have the right to leave their property to whoever, and however, they please. However, there are instances where individuals have signed documents where they do not have the mental capacity to do so or where they are unduly influenced. This can place the person or entity named in the newly signed document as the executor, trustee, or agent into a difficult position. Does the person or entity have the duty to investigate the document that names them in their fiduciary role?
The first issue is whether the named person or entity has a duty before he, she or it accepts the position. A named person or entity can formally accept the position by signing an acceptance document or being named in a court order or the named person can constructively accept the position. A named successor trustee that has not formally accepted the role of trustee can constructively accept the role of trustee by exercising power or performing duties under the trust, unless the named successor trustee was merely (1) acting to preserve trust property, and within a reasonable time after acting gives notice of the rejection of the trust to the settlor or to the beneficiaries if the settlor is deceased, or (2) inspecting or investigating trust property for any purpose. Tex. Prop. Code Ann. § 112.009(a).
Before formally or constructively accepting the role of successor trustee, a named successor trustee has no duty to take any actions on behalf of the trust. In re Est. of Webb, 266 S.W.3d 544, 549 (Tex. App.—Fort Worth 2008, pet. denied) (stating “A person designated in a trust instrument as a trustee incurs no liability with respect to the trust until he accepts the trust.”) (citing Tex. Prop. Code Ann. § 112.009(b)); Blieden v. Greenspan, 751 S.W.2d 858, 859 (Tex. 1988) (stating “a breach of the duty to administer the trust can only occur if the trustee has accepted or acquiesced in his appointment as trustee.”); Tex. Prop. Code Ann. § 112.009(b) (“A person named as trustee who does not accept the trust incurs no liability with respect to the trust.”); Restatement (Third) of Trusts § 35 (2003) (“A person who has not accepted the office cannot be compelled to act as trustee.”); Restatement (Third) of Trusts § 76 (2007) (“A person has no duty to administer the trust unless he or she accepts the trusteeship.”); Restatement (Second) of Trusts § 169 (1959) (“[T]he trustee is not under a duty to administer the trust unless he accepts” the appointment of trustee); McCarthy v. Poulsen, 173 Cal. App. 3d 1212, 1217 (Ct. App. 1985) (“the universal rule in this country [is] that a person may not be forced to be a trustee without his consent.”). So, a named trustee who has not formally or constructively accepted the position has no duty to investigate whether the trustor had the requisite capacity to execute the trust instrument before accepting the role.
There is little authority in Texas regarding whether a person who has accepted the role of trustee has a duty to investigate whether the trustor had capacity. From a general standpoint, a trustee has two potentially conflicting duties: (1) the duty to uphold and defend the trust instrument as modified by the settlor, and (2) the duty to not comply with a trust instrument that it knows, or should have known, is invalid. Tex. Prop. Code § 113.051 (a trustee has a duty to administer the trust in accordance with the terms of the trust instrument); Tex. Prop. Code Ann. § 113.002 (“a trustee may exercise any powers in addition to the powers authorized by this subchapter that are necessary or appropriate to carry out the purposes of the trust.”); Restatement (Third) of Trusts § 76 (2007) (a trustee has a duty to administer the trust in accordance with the terms of the trust instrument including terms that have been modified or amended by the settlor); 2 Tex. Prac. Guide Wills, Trusts and Est. Plan. § 5:376 (where there is a challenge to the terms of the trust, the trustee is under a duty to uphold and defend the terms of the trust); Restatement (Third) of Trusts § 72 (2007) (“A trustee has a duty not to comply with a provision of the trust that the trustee knows or should know is invalid because the provision is unlawful or contrary to public policy.”).
While there is no case law discussing this issue in regards to a trustee, there is a case discussing this issue in regards to an executor. See In re Estate of Robinson, 140 S.W.3d 801 (Tex. App.—Corpus Christi 2004, pet. dism’d). Because “[t]he fiduciary standards of an executor of an estate are the same as the fiduciary standards of a trustee,” this case law can be applied to trustees. McLendon v. McLendon, 862 S.W.2d 662, 670 (Tex. App.—Dallas 1993, writ denied). In Robinson, the court held that an executor did not have a duty to investigate or contest the validity of decedent’s will and concluded that the trial court abused its discretion in disqualifying the executor based on the alleged duty to investigate or contest the will. In re Estate of Robinson, 140 S.W.3d at 811.
In Robinson, Garland Sandhop (“Sandhop”) served as the co-executor of the estate of Velma Robinson (“Robinson”), and co-trustee of certain trusts executed by Robinson. Id. at 804. The trial court admitted Robinson’s 1995 will to probate. Id. Contestants filed a will contest alleging that Robinson lacked the requisite mental capacity when she signed the 1995 will and was unduly influenced. Id. Contestants offered a different will for probate—one that Robinson had signed in 1983 which named Sandhop as co-executor and named different beneficiaries than the 1995 will. Id. Sandhop did not join in contesting the 1995 will. Id. The 1995 will was set aside and the 1983 will was admitted to probate. Id. When Sandhop sought to be appointed co-executor of the estate under the 1983 will, a contestant filed a motion to disqualify Sandhop alleging, among other things, that he had disregarded his duty to investigate and contest the validity of the 1995 will. Id. at 811. Ultimately, the trial court disqualified Sandhop from serving as co-executor and denied his request for appointment. Id. at 805. On appeal, Sandhop argued that he did not investigate or contest the validity of the 1995 will because: (1) he did not think he had a duty to do so, and (2) he had no reason to do so. Id. at 811. The court addressed the issue, “[Contestant] provides no authority for her argument that [Sandhop], who was named co-executor in Robinson’s 1983 will, had a duty to investigate or contest the 1995 will, and we find none.” Id. The court concluded that the trial court had abused its discretion in disqualifying Sandhop as co-executor based on the alleged duty to investigate or contest the will. Id. Using the court’s rationale from Robinson, it follows that a trustee or executor would not have a general duty to investigate the validity of a will or trust affecting the trust or estate or to bring claims to have the document set aside.
Even if a trustee could be charged with a duty to investigate the validity of a trust document, that duty would only spring forward when the trustee had some knowledge of facts that would trigger the duty and would be judged against the trustee’s discretionary standard. In determining whether a trustee should have known that a trust instrument was invalid, or should have investigated the instrument’s validity, “among the relevant factors for a court to consider are the particular trustee’s experience, familiarity with trust law and practice, and representations concerning competence to serve as a trustee.” Restatement (Third) of Trusts § 72, cmt. c (2007). Trustees owe beneficiaries “an unwavering duty of good faith, fair dealing, loyalty, and fidelity.” In re Estate of Boylan, No. 02-14-00170-CV, 2015 Tex. App. LEXIS 1427, at *10 (Tex. App.—Fort Worth Feb. 12, 2015, no pet.). This duty requires trustees to “exercise the judgment and care that persons of ordinary prudence, discretion, and intelligence exercise in the management of their own affairs.” Id. Good faith is no defense when the trustee or executor has not exercised diligence or has acted unreasonably. See, e.g., id. at *11–12; In re Estate of Bryant, No. 07-18-00429-CV, 2020 Tex. App. LEXIS 2131, at *16–17 (Tex. App.—Amarillo March 11, 2020, no pet.).
Courts scrutinize a fiduciary’s conduct in a given situation for reasonableness and diligence. See Boylan, 2015 Tex. App. LEXIS 1427, at *10–11 (analyzing reasonableness and good faith of executor’s interpretation of a will); American Nat’l Bank v. Biggs, 274 S.W.2d 209, 220–21 (Tex. App.—Beaumont 1954, no writ) (analyzing facts supporting trustees’ reasonableness and good faith when administering trust); In re XTO Energy Inc., 471 S.W.3d 126, 131–32 (Tex. App.—Dallas 2015, no pet.) (analyzing trustee’s conduct and determining that trustee’s understanding of certain conveyances was not wrongful, fraudulent, or an abuse of discretion). The Third Restatement of Trusts states:
The duty of care requires the trustee to exercise reasonable effort and diligence… in making and implementing administrative decisions, and in monitoring the trust situation, with due attention to the trust’s objectives and the interests of the beneficiaries. This will ordinarily involve investigation appropriate to the particular action under consideration, and also obtaining relevant information about such matters as the contents and resources of the trust estate and the circumstances and requirements of the trust and its beneficiaries.
…
In addition to the duty to use care and skill, the trustee must exercise the caution of a prudent person managing similar assets for similar purposes. The duty to act with caution does not, of course, mean the avoidance of all risk, but refers to a degree of caution that is reasonably appropriate or suitable to the particular trust, its purposes and circumstances, the beneficiaries’ interests, and the trustee’s plan for administering the trust and achieving its objectives.
Restatement (Third) Of Trusts § 77 cmt b.
Further, a court may not interfere with the exercise of a trustee’s discretionary powers and substitute its discretion for that of the trustee except in cases of fraud, misconduct, or a clear abuse of discretion. In re XTO Energy Inc., 471 S.W.3d at 131–32 (citing Di Portanova v. Monroe, 229 S.W.3d 324, 330 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). A trustee’s power is discretionary if a trustee may decide whether or not to exercise it. Id. (citing Caldwell v. River Oaks Trust Co., No. 01–94–00273–CV, 1996 WL 227520, at *12 (Tex. App.—Houston [1st Dist.] May 2, 1996, writ denied) (not designated for publication)). When a trustee is granted the authority to commence, settle, arbitrate or defend litigation with respect to the trust, the trustee is authorized, but not required, to pursue litigation on the trust’s behalf. Id. (citing DeRouen v. Bryan, No. 03–11–00421–CV, 2012 WL 4872738 at *4 (Tex. App.—Austin Oct. 12, 2012, no pet.) (mem. op.), and quoting Restatement (Second) of Trusts § 177 cmt c). “It is not the duty of the trustee to bring an action to enforce a claim which is a part of the trust property if it is reasonable not to bring such an action, owing to the probable expense involved in the action or to the probability that the action would be unsuccessful or that if successful the claim would be uncollectible owing to the insolvency of the defendant or otherwise.” Restatement (Second) of Trusts § 177 cmt c. Based on the foregoing, a trustee likely has no duty to investigate whether the trustor had the requisite capacity to execute the trust instrument, unless refusing to do so would be unreasonable or an abuse of discretion.
Finally, a trustee has a duty to disclose “all material facts known to [it] that might affect [the beneficiaries’] rights.” Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984). A trustee may owe a duty to provide the beneficiaries with any information known to the trustee that indicated the trust instrument was invalid. If a trustee fails to do so, it may be in breach of a duty to disclose.
The issue of whether a trustee has a duty to investigate the validity of the document naming it a trustee, is a complicated one, and an issue for which there is little guidance in Texas. The only authority in Texas would seem to imply that there is no duty to investigate. Even if a duty could arise, a trustee’s conduct would likely be judged against a discretionary standard.
Think ADA Recovery Is Limited to Employees With Disabilities? The Seventh Circuit Says Think Again
On April 1, 2025, the Seventh Circuit Court of Appeals clarified the remedies available to nondisabled employees subjected to improper medical examinations or inquiries under the Americans with Disabilities Act (ADA).
The court’s decision in Nawara v. Cook County establishes that nondisabled employees may recover back pay if subjected to improper medical examinations or inquiries.
Quick Hits
The Seventh Circuit reiterated that the ADA’s limitation on medical exams and inquiries applies to all employees, not just those with a disability under the ADA.
Hence, a nondisabled employee subjected to unlawful medical exams or inquiries may recover back pay if, for instance, the employee is off work without pay for some period or is discharged for refusing to undergo an improper medical examination.
The court’s ruling highlights the importance of properly determining whether to require an employee to undergo a medical or mental health exam, i.e., to ensure that any such exam or inquiry is job-related and consistent with business necessity.
Correctional officer John Nawara had several heated altercations with his supervisor and a heated interaction with human resources and a nurse. The Cook County sheriff’s office placed Nawara on paid leave and mandated he undergo a fitness-for-duty examination and sign medical authorization forms before he could return to work. Nawara refused, and when his paid leave expired, he was placed on unpaid leave. Four months later, Nawara decided to return to the sheriff’s office and returned the authorization forms and underwent a fitness-for-duty examination. Nawara was declared fit for duty and returned to work as a correctional officer.
While on leave, Nawara sued Cook County and the sheriff, alleging the compulsory fitness-for-duty examination and inquiry into his mental health violated §12112(d)(4) of the ADA, which provides:
[An employer] shall not require a medical examination and shall not make inquiries of an employee as to whether such an employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
A jury found for Nawara, determining that requiring him to have a fitness-for-duty exam and to complete medical authorization forms violated the ADA, but it awarded no damages. Nawara subsequently moved the district court to reinstate his seniority and award him back pay. The district court restored Nawara’s seniority but declined to award him back pay, finding that a plaintiff must have a disability under the ADA for a violation of §12112(d)(4) to constitute discrimination on account of disability and, thereby, support back pay.
The Seventh Circuit affirmed the judge’s determination on seniority but reversed on the denial of back pay. The court first noted the ADA provides: “No [employer] shall discriminate against a qualified individual with a disability ….” Id. §12112(a). Second, “[t]he prohibition against discrimination … in subsection (a) shall include medical examinations and inquiries.” Id. §12112(d)(1). And, as to current employees, this means: “[An employer] shall not require a medical examination … of an employee …, unless such examination … is shown to be job-related and consistent with business necessity.” Id. §12112(d)(4)(A) (emphasis added).
The Seventh Circuit read these provisions together to mean that “to prove a violation of §12112(d)(4) is to prove discrimination on the basis of disability under §12112(a).” In other words, because the restriction on medical exams applies to “an employee,” not just disabled employees, and an improper medical exam constitutes discrimination on account of disability under the ADA, nondisabled employees may recover back pay for the ADA violation. The Seventh Circuit remanded the case to the district court to determine back pay.
New York AG Sues Earned Wage Access Companies for Allegedly Unlawful Payday Lending Practices
On April 14, New York Attorney General Letitia James announced two separate lawsuits against earned wage access providers—one against a company that issues advances directly to consumers, and another targeting a provider that operates through employer partnerships. Both actions allege that the companies engaged in illegal payday lending schemes, charging fees and tips that resulted in annual percentage rates (APRs) far in excess of New York’s civil and criminal usury caps.
The lawsuits assert violations of New York’s civil and criminal usury laws, which cap interest at 16% and 25%, respectively. According to the AG, the companies’ flat fees and “voluntary” tipping features amounted to de facto interest that routinely exceeded those thresholds. Both lawsuits also allege deceptive business practices and false advertising in violation of New York’s General Business Law, as well as abusive and deceptive acts and practices under the federal Consumer Financial Protection Act. In both cases, the AG alleges that the companies trap workers in cycles of dependency through frequent, recurring advances.
The lawsuit against the employer-partnered provider alleges that the company:
Imposed high fees on small-dollar, short-term advances. These fees allegedly resulted in effective APRs that often exceed 500%, despite claims that the advances are fee-free or interest-free.
Diverted wages through employer-facilitated repayment. The company allegedly required workers to assign wages and routed employer-issued paychecks directly to itself, ensuring collection before workers received their remaining pay.
Marketed the product as an employer-sponsored benefit. By leveraging exclusive partnerships, the company allegedly positioned its product as a no-cost financial wellness tool, downplaying costs and repayment risks.
The lawsuit against the direct-to-consumer provider alleges that the company:
Extracted revenue through manipulative tipping practices. Consumers were allegedly nudged to pay pre-set tips through guilt-driven prompts and fear-based messaging, which the company treated as interest income.
Automated repayment from linked bank accounts. The provider allegedly pulled funds as soon as wages were deposited, often before consumers could access them.
Used per-transaction caps to drive repeat usage. Consumers were allegedly forced to take out multiple advances and pay multiple fees to access their full available balance, magnifying the cost of each lending cycle.
Putting It Into Practice: These lawsuits reinforce a growing trend among states to impose consumer protection requirements—particularly around fee disclosures and repayment practices—regarding earned wage access products (previously discussed here). State regulators continue to increase their scrutiny of EWA providers’ business models and marketing tactics. In addition, this is perhaps the first case we have seen with a state attorney general bringing an action under the CFPA (see our related discussion here about this topic). Depending on how this case proceeds, we can expect to see more cases under the federal statute.
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Federal Judge Order Suspends Termination of Cuban, Haitian, Nicaraguan, and Venezuelan (CHNV) Parole Program
On April 14, 2025, a Massachusetts federal district court judge issued a temporary nationwide order suspending the U.S. Department of Homeland Security’s (DHS) termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole program. The termination was set to take effect on April 24, 2025, and would have ended parole authorization and any associated benefits, including work authorization for individuals in the United States under the CHNV parole program. The judge’s decision stays or suspends the categorical cancellation of this program.
Quick Hits
A federal district court judge has issued a temporary nationwide order halting the U.S. Department of Homeland Security’s termination of the Cuba, Haiti, Nicaragua, and Venezuela (CHNV) parole program, which was set to end on April 24, 2025.
This decision allows individuals under the CHNV parole program to stay in the United States and maintain their work authorizations until their current parole periods expire.
The court’s order provides temporary relief while further litigation is pending, but individuals will need to seek alternative immigration options to remain in the United States beyond their parole periods.
Background
Section 212(d)(5)(A) of the Immigration and Nationality Act (INA) authorizes the secretary of homeland security, at the secretary’s discretion, to “parole into the United States temporarily under such conditions as he [or she] may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit any alien applying for admission to the United States.” Parole allows noncitizens who may otherwise be inadmissible to enter the United States for a temporary period and for a specific purpose.
The Biden administration implemented a temporary parole program for Venezuelans in October 2022, and later expanded the parole program to include Cubans, Haitians, and Nicaraguan nationals in January 2023. Individuals within this program apply for an Employment Authorization Document (EAD) in the (c)(11) category. The Biden administration announced in October 2024 that it would not extend legal status for individuals who were permitted to enter the United States under the CHNV parole program, but encouraged CHNV beneficiaries to seek alternative immigration options.
On March 25, 2025, DHS published a Federal Register notice announcing the immediate termination of the CHNV parole program. The termination was set to take effect within thirty days of the date of publication of the notice, or April 24, 2025. On April 14, U.S. District Court Judge Indira Talwani, of the U.S. District Court for the District of Massachusetts, issued a nationwide order staying or temporarily suspending the implementation of the categorical termination of the CHNV parole program.
Key Takeaways
Pending further litigation, the federal district judge’s order results in the following:
Individuals paroled into the United States pursuant to the CHNV parole programs may remain in the United States through their originally stated parole end date.
Employment Authorization Documents (EADs) issued to individuals admitted under the CHNV parole programs will remain valid through the expiration date listed on the EAD.
Individuals seeking to remain in the United States past the expiration of their parole periods must seek an alternative immigration status to remain in the United States.
Competition Currents | April 2025
In This Issue1
United States | Mexico | The Netherlands | Poland | Italy | European Union
United States
A. Federal Trade Commission (FTC)
1. FTC staff reaffirms opposition to proposed Indiana hospital merger.
On March 17, 2025, the FTC advised the Indiana Department of Health to deny the merger application of Union Hospital, Inc. (Union Health) and Terre Haute Regional Hospital, L.P. (THRH). According to the FTC’s comment letter, this second attempt to merge under a proposed certificate of public advantage (COPA) has the same anticompetitive harms as their original application. The FTC warned that the merger poses substantial anticompetitive risks, such as higher healthcare costs for patients and lower wages for hospital workers. In September 2024, the FTC issued a similar letter opposing the same parties’ proposed COPA, which the parties later withdrew in November 2024.
2. FTC launches joint labor task force to protect American workers.
A newly established Joint Labor Task Force as of Feb. 26, 2025, consisting of the FTC’s Bureau of Competition, Bureau of Consumer Protection, Bureau of Economics, and Office of Policy Planning, will focus on identifying and prosecuting deceptive, unfair, and anticompetitive labor-market practices that negatively impact American workers. The task force will also work on developing information-sharing protocols between the FTC’s bureaus and offices to exchange best practices for investigating and uncovering such practices, as well as promoting research on harmful labor-market issues to guide both the FTC and the public. The FTC chairman created the Joint Labor Task Force to streamline the agency’s law-enforcement efforts and ensure labor issues are prioritized in both consumer protection and competition-related matters.
3. FTC approves final order requiring building service contractor to stop enforcing a no-hire agreement.
The FTC, on Feb. 26, 2025, has finalized a consent order that mandates Planning Building Services and its affiliated companies to cease enforcing no-hire agreements. In January 2025, the FTC filed a complaint against Planned Building Services, Inc., Planned Security Services, Inc., Planned Lifestyle Services, Inc., and Planned Technologies Services, Inc., collectively known as Planned Companies (Planned). The complaint claimed that the companies used no-hire agreements to prevent workers from negotiating for higher wages, better benefits, and improved working conditions. Under the final consent order, Planned must stop enforcing no-hire agreements, both directly and indirectly, and must not inform any current or potential customer that a Planned employee is bound by such an agreement. The order also requires Planned to eliminate no-hire clauses from their customer contracts and notify both customers and employees that the existing no-hire agreements are no longer enforceable.
B. U.S. Litigation
1. D’Augusta v. American Petroleum Institute, Case No. 24-800 (U.S. Mar. 31, 2025).
On March 31, 2025, the U.S. Supreme Court refused to take up a putative class action alleging that the governments of Russia, Saudi Arabia, and the United States entered into an anticompetitive agreement in 2020 to cut oil production. According to the lawsuit, the multinational agreement arose during the height of the COVID-19 pandemic, when oil prices declined substantially due to decreased demand. In dismissing the case, the Ninth Circuit held that any alleged agreement between foreign nations and the U.S. government were matters of foreign policy and therefore outside of the judicial branch’s jurisdiction. As is tradition, the U.S. Supreme Court did not issue a separate opinion explaining its reasons for refusing to consider the appeal.
2. Dai v. SAS Institute Inc., Case No. 4:24-cv-02537 (N.D. Cal. Mar. 24, 2025).
On March 24, 2025, the Honorable Judge Jeffrey S. White dismissed allegations brought against SAS Institute, Inc., the creator of an artificial intelligence algorithm that others allegedly used to fix hotel prices. According to the complaint, subsidiary IDeaS Inc. licensed SAS’s software to various hotel chains, whom plaintiffs claim used the algorithm to set increased room rates nationwide. While Judge White did not issue an opinion regarding the remaining defendants’ pending motions to dismiss, he stated that at least with respect to SAS, there is no allegation or proof of a direct contract between SAS as a parent company and these hotel chains, and the mere fact that SAS’s software allegedly “powered” the anticompetitive activity was not enough to make it a defendant.
3. State of Tennessee v. National Collegiate Athletic Association, Case No. 3:24-cv-00033 (E.D. Tenn. Mar. 24, 2025).
Also on March 24, a federal district judge in the Eastern District of Tennessee approved the settlement of a class action that four states and the District of Columbia brought against the National Collegiate Athletic Association (NCAA). The states brought the suit on behalf of their respective colleges and universities to challenge the NCAA’s rule that prohibited those schools from marketing potential name, image, and likeness (NIL) compensation to prospective athletes as part of the school’s recruitment. According to the settlement, the NCAA will cease enforcing its existing rules that prevent athletes from learning about or negotiating potential NIL contracts as part of college recruitment.
4. Davitashvili v. Grubhub, Inc., Case No. 23-521 and 23-522 (2d Cir. Mar. 13, 2025).
On March 13, 2025, a divided Second Circuit held that while food delivery service Uber Technologies Inc. could force customers to arbitrate “the arbitrability” of their antitrust claims, a court would decide if fellow defendant and competitor Grubhub Inc.’s antitrust claims were subject to the arbitration. The appeals arise out of allegations that both Uber and Grubhub require restaurants to agree not to sell food at lower prices than those offered on their platforms, which plaintiffs claim resulted in increased prices to consumers. According to the court, the differing results arise in part because Uber’s terms of service more clearly state that the question of whether antitrust suits are subject to the arbitration clause is itself a question that is left to the arbitrator, whereas Grubhub’s terms of service fail to sufficiently require an arbitrator to determine questions of arbitrability. In a dissenting opinion, the Honorable Judge Richard J. Sullivan disagreed with the majority’s conclusion that claims against Grubhub were “unrelated” to consumers’ use of the app, noting that “what gave Grubhub the market power to commit the alleged antitrust violations” was the very fact that consumers used the app.
Mexico
SCJN endorses COFECE’s fine against Aeromexico; emails were key in the decision.
The Second Chamber of the Supreme Court of Justice of the Nation (SCJN) has ratified the investigative powers of the Federal Economic Competition Commission (COFECE), concluding more than five years of litigation Aeromexico initiated.
The airline had challenged a fine of MEX 88 million ($4.21 million) that COFECE imposed in 2019 for colluding to manipulate airline ticket prices on several routes, affecting more than 3 million passengers. The Second Chamber ultimately confirmed the sanction.
In this and other cases, much of the evidence against Aeromexico was obtained through surprise verification visits, a key tool of COFECE. These visits allow access to the offending companies’ offices to collect crucial physical and electronic evidence that may otherwise be destroyed. During one of these visits, COFECE found emails between airline executives, where, using nicknames, codes, and false email addresses, they allegedly conspired to manipulate prices.
Aeromexico argued before the SCJN that these emails were “private communications” and, therefore, could not be used as evidence. However, the Second Chamber determined that these communications are not protected by the right to privacy and can be used to investigate and sanction monopolistic practices that affect consumers, especially when it comes to commercial communications between companies or their personnel.
The Netherlands
A. Dutch ACM Statements
1. ACM provides guidance for car dealership concentrations.
The Dutch competition authority (ACM) has issued a detailed guideline outlining its approach to assessing mergers and acquisitions within the car dealership sector. This guideline aims to provide clarity to the industry by offering a step-by-step overview of the information car dealerships must submit and the analyses they must conduct when filing merger notifications. The objective is to ensure an efficient and precise evaluation process for both the ACM and the companies involved.
To minimize administrative burdens on businesses, the guideline introduces threshold values. Companies operating below these thresholds need only provide a straightforward market share analysis. For companies exceeding these thresholds, further procedural steps are outlined. This approach is designed to support companies in complying with notification requirements efficiently.
2. ACM may investigate possible violations under the Digital Markets Act.
The ACM now has the authority to investigate compliance with the Digital Markets Act (DMA). This European legislation, in effect since May 2023, aims to foster competition in digital markets and provide better protection for consumers. The DMA imposes obligations on major digital platforms, known as “gatekeepers.” Key obligations for gatekeepers include offering fair terms in app stores, providing businesses free access to their own data, and ensuring interoperability between apps and hardware. The ACM will work closely with the European Commission (“EC”) through joint investigative teams to address these matters.
The ACM is authorized to investigate complaints from businesses facing access issues with these platforms and collaborates with the EC, which holds exclusive enforcement powers under the DMA. Since the Dutch implementation law took effect March 10, 2025, the ACM has gained investigative authority. The ACM encourages businesses to report any difficulties encountered with gatekeepers.
3. ACM investigates the acquisition of Ziemann Nederland by Brink’s and is advocating for a ‘call-in power.’
The ACM has initiated an investigation into the recent acquisition of Ziemann Nederland by Brink’s, a leading player in the Dutch cash-in-transit sector. As a result of the takeover, Ziemann will exit the Dutch market, heightening the ACM’s concerns regarding reduced competition.
Brink’s has stated that the acquisition did not require prior notification to the ACM as the turnover thresholds were not met. However, the ACM is now examining whether the transaction may breach competition laws, including the prohibition on abusing a dominant market position. Furthermore, the ACM is advocating for a ‘call-in power,’ which would enable it to investigate smaller acquisitions that may have adverse effects, even if they fall below the turnover thresholds. Such a measure would enhance the ability to address market power and its associated risks, both at the national and European levels.
B. Dutch Court Decision
Dutch Supreme Court to rule on follow-on claims from a single, continuous breach of European competition law.
The central issue in this case concerns the determination of the applicable law for claims seeking damages resulting from a single and continuous infringement of the European cartel prohibition under Article 101 TFEU, known as follow-on claims. The dispute involves cartel damages stemming from an international cartel of airlines that coordinated prices for fuel and security surcharges between 1999 and 2006. The EC has previously issued fines to the airlines involved, while claims-vehicles Equilib and SCC are seeking compensation on behalf of the affected parties.
Both the lower court and the court of appeals ruled that Dutch law applies to these cartel damage claims under the Unjust Act Conflicts Act (WCOD). The court of appeals held that a single and continuous infringement gives rise to one damages claim per injured party, regardless of the number of transactions that party undertakes. It also noted that the WCOD contains a gap in cases where multiple legal systems could govern a single-damages claim. The court suggested that this gap may be addressed by allowing a unilateral choice of law, in line with Article 6(3) of the Rome II Regulation.
The case is now before the Supreme Court, which is questioning whether the concept of a “single and continuous infringement” should be defined under European Union law or whether this determination is left to the member states’ national laws. The Supreme Court is considering referring a preliminary question to the Court of Justice of the European Union (CJEU). The proposed question seeks to establish whether EU law, particularly the principle of effectiveness, mandates that a single and continuous infringement be treated as a single wrongful act resulting in one damage-claim per injured party, or whether member states are permitted to classify each transaction as separate damages claim.
Poland
A. UOKiK Continuous Enforcement Actions Against RPM Agreements
In the March edition of Competition Currents, we reported on the continued interest of the President of the Office of Competition and Consumer Protection (UOKiK President) in resale price maintenance (RPM) agreements, and the actions taken in the last year. UOKiK’s scrutiny of RPM remains strong and in recent weeks, UOKiK has taken further enforcement actions.
1. Fines imposed on Jura Poland and retailers for coffee machine resale price maintenance.
The UOKiK President has imposed fines exceeding PLN 66 million (approx. EUR 16 million/USD 18 million) on Jura Poland and major electronics retailers for engaging in a decade-long price-fixing scheme regarding Jura coffee machines. Additionally, a top executive at Jura Poland faces a personal fine of nearly PLN 250 thousand (approx. EUR 60 thousand/USD 65 thousand).
According to the UOKiK President, Jura Poland, the exclusive importer of Jura coffee machines, colluded with its retail partners to maintain minimum resale prices, preventing consumers from purchasing them at lower prices. The agreement covered both online and in store sales and extended to promotional pricing and bundled accessories.
Evidence gathered through on-site inspections revealed that Jura Poland was actively monitoring compliance, pressuring retailers to adhere to fixed prices under the threat of supply restrictions or contract termination. The scheme’s communication channels included emails, phone calls, messaging apps, and SMS messages.
The anti-competitive arrangement reportedly lasted from July 2013 to November 2022. The UOKiK President imposed fines of PLN 30 million (approx. EUR 7.1 million/USD 7.7 million) on the owner of one retailer, and of PLN 12.2 million (approx. EUR 2.8 million/USD 3.1 million) on Jura Poland. The other retailers received fines ranging from PLN 6.5 million (approx. EUR 1.5 million/USD 1.6 million) to PLN 10.5 million (approx. EUR 2.5 million/USD 2.7 million).
The decision is not yet final and can be appealed to the Court of Competition and Consumer Protection.
2. UOKiK investigates alleged collusion in agricultural machinery sales.
The UOKiK President has launched two antitrust investigations into potential collusion in the sale of agricultural machinery. The first investigation is focusing on major brands in the industry. The second investigation concerns the Claas brand. Allegations of market sharing and price fixing, which may lead to higher costs for farmers, have been made against 15 companies and two executives.
The UOKiK President suspects that dealers were assigned exclusive sales territories, restricting farmers from purchasing machinery outside the designated areas. Customers who attempted to buy from other dealers may have been redirected or offered less favorable prices. Additionally, businesses allegedly exchanged pricing information to discourage cross-regional sales.
If the UOKiK proceedings confirm competition-restricting agreements, the companies could face fines of up to 10% of their annual turnover, while managers risk penalties of up to PLN 2 million (approx. EUR 479 thousand/USD 517 thousand). Under Polish law, anticompetitive provisions in agreements are invalid. Entities suffering harm as a result of an anticompetitive agreement may also seek damages in civil court.
B. UOKiK imposes fines for obstruction of investigation and dawn raids
Companies failing to cooperate with the UOKiK President may face severe penalties. Under Polish law, non-disclosure of the required information may result in penalties of up to 3% of the company’s annual turnover. Sanctions for procedural violations during proceedings, particularly for obstructing or preventing the conduct of an inspection or search, may be imposed on managers, with a financial penalty of up to 50 times the average salary (approx. PLN 430,000/EUR 103,000/USD 109,000).
Last month, the UOKiK President issued three decisions, imposing a total of PLN 1.1 million (approx. EUR 263,000/USD 284,000) in fines.
Another case concerned suspected bid-rigging in the supply of cooling and ventilation equipment. M.A.S. executives refused to grant UOKiK access to the work phones and email accounts of two employees involved in the case. One employee’s data was submitted with a two-month delay, while the other’s was never provided. As a result, the UOKiK President issued two decisions with fines: PLN 350,000 (approx. EUR 84,000/USD 90,000) on M.A.S. and PLN 50,000 (approx. EUR 12,000/USD 13,000) on its CEO. The fine imposed on M.A.S. was relatively high, amounting to approximately 2% of the company’s turnover, while the maximum possible fine was 3%.
Italy
Italian Competition Authority (ICA)
1. Update of turnover thresholds for concentration notifications.
On March 24, 2025, the ICA increased the first of two cumulative turnover thresholds that determine when preventive notification of concentrations becomes mandatory. This threshold, which concerns the total national turnover generated by all companies involved in a transaction, was raised from EUR 567 million to EUR 582 million. The second threshold, which requires at least two of the involved companies to individually generate a national turnover of EUR 35 million, remains unchanged.
2. New guidelines on applying antitrust fines.
On March 10, 2025, following a public consultation, ICA adopted new guidelines on fines, aimed at enhancing the deterrent effectiveness of its sanctioning activities. The innovations include:
the introduction of a minimum percentage, equal to 15% of the sales value, for price-fixing cartels, market allocation, and production limitation cartels;
the possibility of increasing the sanction by up to 50% if the responsible company has particularly high total worldwide turnover relative to the value of sales of the goods or service subject to the infringement, or belongs to a group of significant economic size;
the possibility of further increasing the fine based on the illicit profits the company responsible for the infringement made; and
the consideration of mitigating circumstances in a case of adopting and effectively implementing a specific compliance program, as well as introducing the so-called “amnesty plus,” i.e., the possibility of further reducing the fine if the company has provided information ICA deems decisive for detecting an additional infringement and falling within the scope of the leniency program.
3. New guidelines on antitrust compliance.
On March 10, 2025, ICA adopted new guidelines on antitrust compliance. In particular, the ICA has introduced:
a maximum reduction of penalties up to 10% – instead of the previous 15% – reserved for compliance programs that have proven to be effective (i.e. if the application is submitted before ICA launches an investigation);
a reduction of up to 5% -instead of 10%- in the case of compliance programs that are not manifestly inadequate, adopted before ICA launches an investigation, provided that the program is adequately integrated and implemented within six months;
a reduction of up to 5% for companies with manifestly inadequate programs or for programs adopted newly after the start of the investigation only in cases where substantial changes have been made after the proceeding’s initiation;
no reduction for companies that repeatedly infringed and that had already benefited from a reduction of the fine for a previous compliance program. Moreover, no reduction will be granted to a repeat offender, already having a compliance program, involved in a subsequent proceeding.
4. ICA investigates Rete Ferroviaria Italiana S.p.A.and Ferrovie dello Stato Italiane S.p.A. for potential abuse of dominant position.
On March 18, 2025, ICA launched an investigation against Rete Ferroviaria Italiana S.p.A. (RFI) and Ferrovie dello Stato Italiane S.p.A. (FS) for an alleged abuse of dominant position, in violation of Article 102 TFEU. According to ICA, access to the national railway infrastructure has been slowed down, and in some cases obstructed, impeding the new high-speed passenger transport operator, SNCF Voyages Italia S.r.l. (SVI)’s entry.
The contested behaviors were implemented in the national railway infrastructure market, in which RFI holds a dominant position due to the legal concession granting (D.M. Oct. 31, 2000, No. 138), the company a legal monopoly over the national railway network. In this case, access primarily concerns the high-speed (AV) network. However, the infrastructure involved in the allegedly abusive conduct also includes part of the railway infrastructure intended for regional and medium-long distance transport services. From a geographical perspective, considering the widespread nature of the access conditions across the entire Italian railway network, the actions in question seem to have a national scope.
The alleged abusive conduct carried out in the upstream market of railway infrastructure appears to have hindered SVI’s entry into the passenger railway transport market on the AV network, which is the downstream market where anti-competitive effects would have occurred. ICA carried out inspection activities at the offices of Rete Ferroviaria Italiana S.p.A., Ferrovie dello Stato Italiane S.p.A., and also at the offices of Trenitalia S.p.A. and Italo – Nuovo Trasporto Viaggiatori S.p.A., as they were considered to have information relevant to the investigation.
European Union
A. European Commission
European Commission drops interim measures proceedings against Lufthansa.
The European Commission has closed its interim measures antitrust proceedings against Lufthansa, concluding that the legal conditions for such measures under Article 8 of Regulation 1/2003 were not fully met. The proceedings aimed to require Lufthansa to restore Condor’s access to feed traffic at Frankfurt Airport, as previously agreed between the airlines.
These interim measures were part of a broader investigation into potential competition restrictions on transatlantic routes involving the A++ joint venture between Lufthansa and other airlines. The investigation, launched in August 2024, examines whether the joint venture complies with EU competition rules.
While the interim measures proceedings have been closed, the European Commission continues its main investigation into the competitive impact of the A++ joint venture on transatlantic routes, including the Frankfurt-New York route.
B. ECJ Decision
A parent company can be sued in its home country for its subsidiary’s antitrust violations in another EU member state.
On Feb. 13, 2025, the Court of Justice of the European Union (CJEU) issued a landmark ruling confirming that a parent company may be sued in its home country for antitrust violations its subsidiary committed in another EU member state. The case concerned a Greek subsidiary, Athenian Brewery SA, which the Greek competition authority had sanctioned for abusing its dominant position. Macedonian Thrace Brewery SA subsequently filed a claim for damages before a Dutch court against both the subsidiary and its Dutch parent company, invoking Article 8(1) of the Brussels I bis Regulation. This provision allows for the joint adjudication of claims when they are closely connected.
The CJEU clarified that a parent company and its subsidiary may be regarded as forming a single “economic unit,” thereby justifying both joint liability and international jurisdiction. Furthermore, the CJEU reaffirmed the existence of a rebuttable presumption that a parent company exercises decisive influence over its subsidiary if it holds nearly all of the subsidiary’s shares. This presumption is significant for determining both liability and jurisdiction, provided the claims are substantively interconnected and the risk of contradictory judgments is mitigated.
This ruling carries implications for competition law enforcement within the EU. Aggrieved parties are now able to pursue damage claims in the parent company’s jurisdiction, even if the subsidiary committed the antitrust infringement in another member state. However, national courts must ensure that the conditions for establishing international jurisdiction have not been artificially created, while also allowing the parent company the opportunity to rebut the presumption of decisive influence.
1 Due to the terms of GT’s retention by certain of its clients, these summaries may not include developments relating to matters involving those clients.
Holly Smith Letourneau, Sarah-Michelle Stearns, Alexa S. Minesinger, Miguel Flores Bernés, Valery Dayne García Zavala, Hans Urlus, Dr. Robert Hardy, Chazz Sutherland, Robert Gago, Filip Drgas, Anna Celejewska-Rajchert, Ewa Głowacka, Edoardo Gambaro, Pietro Missanelli, Martino Basilisco, and Yongho “Andrew” Lee also contributed to this article.
FISHING FOR INFO?: Not Enough To Reel In A CIPA Claim!
Greetings CIPAWorld!
I’m back with the latest scoop. Imagine browsing hunting gear at Sportsman’s Warehouse online, checking out a fishing rod. You don’t buy anything, don’t create an account, and don’t enter your email. You look around and leave. Weeks later, you get an email from a completely different outdoor retailer suggesting products similar to what you viewed. That’s creepy, right? That’s the essence of Cordero v. Sportsman’s Warehouse, Inc., No. 2:24-CV-575-DAK-CMR, 2025 U.S. Dist. LEXIS 72337 (D. Utah Apr. 15, 2025).
Here, Plaintiff filed a Complaint against Sportsman’s Warehouse after discovering that his browsing activity had been tracked by a third-party service called AddShoppers without his consent. I was digging through this case last night while coincidentally shopping for tickets to an upcoming Blink-182 concert, and caught myself about to click “Accept All” on a cookie banner to see those ticket prices (long story short… I didn’t buy them… yet). The irony wasn’t lost on me. Those seemingly mundane clicks we make without thinking twice? They matter. And sometimes, as this case shows, even not clicking anything can land your data in someone else’s hands. What’s particularly unsettling about the AddShoppers system described in Cordero is that it operates largely invisibly to the average consumer browsing online. Unlike standard cookies that work on a single website, this third-party tracking system follows you across an entire network of seemingly unrelated websites. Have you all watched the new season of Black Mirror yet?
Unlike the recent decision in Lakes v. Ubisoft, Inc., No. 24-cv-06943-TLT, 2025 U.S. Dist. LEXIS 67336 (N.D. Cal. Apr. 1, 2025), in which cookie consent banners saved the day for the video game company, Plaintiff’s lawsuit failed for a different reason altogether: standing. Judge Dale A. Kimball determined that the Plaintiff hadn’t suffered a concrete harm sufficient to give him Article III standing to bring the case. Interesting stuff.
So let’s dig into what’s at issue here. According to the Complaint, AddShoppers operates a “Data Co-Op” where participating companies install AddShoppers’ code on their websites. When an internet user creates an account or purchases with one business in the network, a third-party tracking cookie with a unique identifier is created that AddShoppers associates with that user. Pretty straightforward, right? Once that cookie is in your browser, AddShoppers can track your activity across any website in its network. What? Yes, you read that right. Suppose you’ve provided personal information to one site in the network. In that case, AddShoppers can use that information to target you with ads from completely different companies, even if you never gave those companies your information. For instance, you’re shopping around, adding a pair of boots to your cart on one site and then, days later, getting an email from another company you’ve never interacted with about outdoor gear, all because the two retailers are plugged into the same silent backend tracking system. Spooky stuff.
AddShoppers’ co-founder described this operation as having two data sources: a “blind Co-Op” where brands submit data in exchange for using the collective data pool, and “publisher relationships” where they license data for additional scale. This creates what the Complaint described as a “data lake, ” a centralized repository where information from different sources is matched to create detailed profiles of individuals. What’s particularly concerning is that, according to the Complaint, AddShoppers’ network includes companies selling highly personal products like feminine hygiene and men’s health items, potentially revealing private information to anyone sharing a computer with the user.
Plaintiff’s data request from AddShoppers revealed he had been tracked by at least a dozen companies, including Sportsman’s Warehouse, for several years. The timestamps revealed exactly when he visited these websites. But here’s the critical point that ultimately closed down Plaintiffs case. Here, Plaintiff never provided any personal information to Sportsman’s Warehouse. Plaintiff simply visited their website.
The Court analyzed this lack of personal information exchange through precedent established by the Supreme Court in TransUnion L.L.C. v. Ramirez, 594 U.S. 413 (2021). The Court emphasized that “Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.” Id.The Court ruled that a timestamp showing when someone last visited a website doesn’t constitute personal information that can identify an individual under California law.
Distinguishing this case from In re Facebook, Inc., Internet Tracking Litigation, 956 F.3d 589 (9th Cir. 2020), where Facebook was accused of capturing detailed browsing information that was used to create personally identifiable profiles describing users’ “likes, dislikes, interests, and habits over a significant amount of time.” Unlike Facebook, Sportsman’s Warehouse never obtained Plaintiff’s personally identifiable information.
As the Court put it, “Sharing the last time someone visited a website is not statutorily protected in California as protected personal information.” Cordero, 2025 U.S. Dist. LEXIS 72337. This reasoning was based on similar rulings in Cook v. GameStop, Inc., 689 F. Supp. 3d 58 (W.D. Pa. 2023), which held that “product preference information is not personal information” and In re BPS Direct, L.L.C., 705 F. Supp. 3d 333 (E.D. Pa. 2023), which stated that “browsing activity is not sufficiently private to establish concrete harm.”
The Court also declined to follow decisions like Lineberry v. Addshopper, Inc., No. 23-cv-01996-VC, 2025 U.S. Dist. LEXIS 29903 (N.D. Cal. Feb. 19, 2025), where the Complaint alleged plaintiff made a purchase and was plausibly identifiable. Here, Plaintiff made no purchase, provided no email, and entered no personal details. Those factual gaps were key here in the Court’s reasoning.
Sportsman’s Warehouse also asserted the persuasive authority in Ingrao v. AddShoppers, Inc., No. 24-1022, 2024 WL 4892514 (D. Utah Nov. 25, 2024), which involved nearly identical facts and resulted in dismissal for lack of standing. The Court found Ingrao persuasive and more directly applicable than Facebook, particularly because both Ingrao and Plaintiff’s case lacked allegations that personal data was ever collected, let alone misused.
So what does this mean for you and me? While Plaintiff’s case was dismissed for lack of standing, it provides more insight into how companies track our digital footprints in ways most of us never consider. Those seemingly browsing sessions on retail websites could be feeding into vast data-sharing networks that follow you across the internet.
For companies, the lesson here might seem to be you’re in the clear as long as you don’t collect identifiable personal information. But that would be missing the bigger picture. As privacy laws evolve and consumers become more aware of tracking practices, the legal landscape could shift dramatically. In Lakes, the Court held that layered cookie banners could provide legally binding consent. In Cordero, the Court didn’t even get that far, because if there’s no injury, it doesn’t matter what disclosures you did or didn’t give. The procedural defenses may differ, but the outcome is the same: these privacy lawsuits are shut down at the door.
For consumers, cases like this highlight why those cookie preferences matter. When was the last time you read a privacy policy? And if you did, would you expect it to list every company that might get your data? Probably not. But these cases show that courts won’t always assume you didn’t know. Those extra 30 seconds spent clicking “customize settings” instead of “accept all” could mean the difference between your browsing habits being your own business or becoming valuable data points in a marketplace you never consented to join.
Looking at Lakes and Cordero together, a clear trend emerges. If a company collects personal data with explicit consent, it’s protected. Additionally, if it avoids collecting personal data altogether, it’s also protected. For businesses, that’s a powerful takeaway. The current legal framework favors companies that either build robust consent flows or steer clear of collecting personally identifiable information. Even under California’s strong privacy laws, the bar for plaintiffs to survive a motion to dismiss remains high, especially when standing is questioned.
So next time you’re shopping online, whether for camping gear, concert tickets, or anything else, remember that your digital footprints may be tracked in ways you never imagined. Unlike the plaintiffs in Lakes v. Ubisoft, who clicked through consent banners, Cordero never got the chance to consent or decline. Plaintiff just browsed.
All in all, what stood out to me in Judge Kimball’s ruling was how decisively the conversation ended. This wasn’t a case where more facts might have saved the Complaint. The Court didn’t say plead better. It said you were never supposed to be here.
As always,
Keep it legal, keep it smart, and stay ahead of the game.
Talk soon!