Publications

KEY TAKEAWAYS

• The past few weeks have seen many interesting antitrust and consumer protection developments. Among them:
• The U.S. Department of Justice (DOJ) revised the Justice Manual to update its approach to False Claims Act enforcement by (1) stressing that, unlike federal statutes or regulations, DOJ guidance documents are “not a substitute for regulation” and “may not be used to impose” new legal obligations, and (2) encouraging continuous assessment of qui tam actions to determine whether the department should exercise its dismissal authority for lack of legal or factual merit, which authority it will exercise “judicious[ly]” in appropriate cases. [1] DOJ announced that these updates “will help ensure [DOJ] uses its enforcement authority fairly and effectively.” [2]
• Continuing a years-long trend of increased Federal Trade Commission (FTC) enforcement of Section 8 of the Clayton Antitrust Act, the FTC has accepted a proposed consent order that would prevent Beretta Holding S.A. from appointing non-independent directors to the board of Sturm, Ruger & Co. [3] Under the terms of the consent order, Beretta “will be prohibited from appointing or nominating anyone to serve on Ruger’s board of directors unless that person is independent of Beretta.” [4]
• The Connecticut Superior Court dismissed breach of contract and Connecticut Unfair Trade Practices Act (CUTPA) claims alleging unfair conduct in connection with an alleged no-poach agreement between a contractor and a subcontractor. [5] The court found there was no proof of any no-poach agreement or that the subcontractor acted unfairly.
• Personalized or surveillance pricing is a trending issue for state and federal stakeholders. [6] Connecticut, New Jersey and Maryland each recently passed laws regulating or restricting surveillance pricing and personal data use that raises prices for consumers. Whereas the Connecticut law applies to retailers and third-party delivery service providers, the New Jersey and Maryland laws are generally limited to groceries and grocery stores.

UPDATES

DOJ Announces Revisions to False Claims Act Policies

On September 18, 2026, DOJ published revisions to its Justice Manual that address the department’s False Claims Act enforcement policies and update its approach to litigation brought pursuant to the Act. [7] The revisions include the key points below:

• DOJ components may not issue guidance documents that create rights or obligations binding on parties outside the Executive Branch. [8]
• Enforcement actions may not be predicated on mere noncompliance with DOJ guidance. [9]
• Attorneys must continually reassess whether to seek dismissal of qui tam actions, with an emphasis on dismissing actions that “lack legal or factual merit” or that are “parasitic or opportunistic.” [10]

Regarding the changes, Associate Attorney General Stanley E. Woodward stated that DOJ “should enforce the law, not make law through enforcement,” signaling an agency-wide shift toward restraint—a theme consistent with a broader Executive Branch philosophy. ^[11] Associate Attorney General Woodward also noted that DOJ should limit the reach of guidance documents and avoid using them as de facto regulatory instruments, given that noncompliance with guidance cannot form the basis for a suit, and that DOJ attorneys must consider dismissal of qui tam actions and prioritize the allocation of department resources to guard against overenforcement. [12]

For companies that contract with or receive funds from the federal government, the revisions may provide a basis to challenge False Claims Act theories premised solely on alleged noncompliance with agency guidance, and to urge DOJ to seek dismissal of qui tam actions that lack legal or factual merit. Companies should nonetheless continue to monitor their compliance with binding statutory, regulatory and contractual requirements, which remain enforceable under the Act.

FTC Votes 2-0 to Accept Beretta/Ruger Proposed Consent Order Limiting Board Appointments in Connection with Anticipated Stock Purchase

On September 16, 2026, the FTC accepted a proposed consent order meant to prevent so-called “anticompetitive entanglements” between Beretta Holding S.A. (Beretta) and Sturm, Ruger & Co., Inc. (Ruger), described by the FTC as “two of the largest firearm manufacturers.” [13] In announcing the settlement, the FTC declared that it was its “latest enforcement action to crack down on companies sharing directors.” [14] This represents an ongoing trend by the FTC of enforcing Section 8 of the Clayton Act, which prohibits directors and officers from serving simultaneously on the boards of competing corporations. [15] While Section 8 enforcement was historically rare, the FTC and DOJ’s Antitrust Division have been ramping up enforcement of this Section over the past few years—a trend that continues into the fall of 2026.

The consent order resolves the FTC’s concerns over a proposed deal between the two companies in which Beretta sought to increase its holdings of Ruger stock and maintain the right to appoint two members of the Ruger board. The FTC had alleged that the deal “would create an illegal interlocking directorate arrangement.” [16] The consent order provides that:

• Beretta cannot appoint anyone to Ruger’s board unless that person is independent of Beretta;
• Beretta must notify the FTC in writing at least 15 days before placing anyone on Ruger’s board; and
• Beretta may not hire or enter into any financial or other relationship with any independent director nominated by Beretta and appointed to the Ruger board that would: (1) involve violating the independent director’s fiduciary duty or (2) involve the disclosure to Beretta of nonpublic information received about Ruger, until such independent director has ceased serving on the board of directors of Ruger for a period of one year.

But the matter is not over yet: the public now has an opportunity to comment on the proposed consent order, following which the FTC may issue the order on a final basis, making it binding.

This development shows that the FTC continues to be proactive in addressing board interlocks even before any directors are appointed. Companies should continue to carefully review board memberships to ensure compliance with Section 8 of the Clayton Act.

Connecticut State Court Dismisses Case Involving Mixed Breach of Contract and Consumer Protection Claims

On September 10, 2026, following trial, the Connecticut Superior Court dismissed claims alleging that computer company Spectrum Virtual, LLC breached an oral agreement with another computer company, Consolidated Computing, Inc., not to poach each other’s clients. This case provides an interesting example of intersecting antitrust and consumer protection issues in a breach of contract matter. [17]

The case arose after Consolidated Computing, the general contractor in an emergency IT project for the Town of Hamden, hired Spectrum as a subcontractor for that project. Consolidated Computing claimed that it had an oral agreement with Spectrum not to poach each other’s clients. Spectrum subsequently submitted the winning public bid on a project to overhaul Hamden’s networking infrastructure—an act that Consolidated Computing alleged was in breach of their oral no-poach agreement. In addition to breach of contract and tortious interference claims, Consolidated Computing asserted violations of the Connecticut Unfair Trade Practices Act (CUTPA). Following trial, the court found there was no proof of any oral contract and no proof that Spectrum acted unfairly when it won the public bid in question. [18] The special relationship between a general contractor and a subcontractor likely explains why the no-poach agreement itself was not flagged by the court as problematic.

This CUTPA case involving the contractor-subcontractor relationship hearkens back to one of the most significant CUTPA decisions ever issued—Johnson Electric v. Salce Contracting, 72 Conn. App. 342 (2002). There, a general contractor used its subcontractor’s bid to win a contract job, then failed to utilize the subcontractor to do the work. The Connecticut Appellate Court held that the conduct of the general contractor was “unethical” because it deviated from accepted commercial practices in the industry, thus violating the second prong of CUTPA’s Cigarette Rule. There is no other CUTPA decision at the appellate level that has treated a deviation from accepted commercial practice as the predicate for an unfairness claim. [19]

Although the court found no CUTPA violation, this case is a useful reminder for companies considering any type of no-poach agreement to pay special attention to applicable consumer protection and antitrust laws.

Advisory Update: Stakeholders and the FTC Alike Are Following Personalized or Surveillance Pricing Issues

While the FTC continues to study the issue of personalized and/or surveillance pricing, [20] state legislatures are showing more interest in this consumer protection topic as well.

Connecticut, for example, has already passed legislation, P.A. 26-130, § 11, which will become effective July 1, 2027, and significantly impacts a retailer’s use of personal data to raise prices. [21] Our firm’s recent advisory, linked here, covered changes to Connecticut consumer protection law coming out of the state’s 2026 legislative session, and includes a description of the new rule. In short, the legislation bans retail sellers/delivery services from using personal data (biometric, cameras, device tracking) to raise prices, and a violation of Section 11 is a per se violation of CUTPA that will be exclusively enforced by the Connecticut Attorney General’s Office. [22]

Following this trend, New Jersey and Maryland recently passed laws banning or restricting surveillance pricing, or personal data use that raises prices for individual consumers, as well. But unlike the new Connecticut law, which applies its ban to retailers and third-party delivery service providers, the scope of New Jersey’s and Maryland’s respective surveillance pricing prohibitions is generally limited to groceries and grocery stores. [23]

Wiggin and Dana routinely advises clients in connection with the full range of antitrust and consumer protection matters, including potential transactions and representations before the FTC, the U.S. Department of Justice Antitrust Division, and offices of state attorneys general. Wiggin and Dana also regularly advises clients concerning evolving antitrust and regulatory landscapes. Wiggin and Dana is also a go-to firm for litigating and advising on a range of consumer protection and unfair trade practices matters, with particular expertise in handling complex cases under CUTPA.  Wiggin and Dana also represents clients in complex False Claims Act (FCA) matters, including internal investigations, government inquiries, enforcement actions, and whistleblower (qui tam) litigation.

[1]             U.S. Dep’t of Just., Just. Manual §§ 1-19.220 through 1-19.260 (2026), https://www.justice.gov/jm/1-19000-limitation-issuance-guidance-documents-1; id. §§ 4-4.110, 4-4.111, https://www.justice.gov/jm/jm-4-4000-commercial-litigation#4-4.111.

[2]              Press Release, U.S. Dep’t of Just., DOJ Revises Justice Manual to Strengthen False Claims Act Enforcement (Sept. 18, 2026), https://www.justice.gov/opa/pr/doj-revises-justice-manual-strengthen-false-claims-act-enforcement.

[3]              Decision and Order, Beretta Holding S.A., FTC File No. 261-0091 (Sept. 16, 2026), https://www.ftc.gov/system/files/ftc_gov/pdf/Beretta-Ruger-Order.pdf.

[4]              Press Release, Fed. Trade Comm’n, FTC Takes Action to Prevent Anticompetitive Arrangement in Beretta, Ruger Deal (Sept. 16, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/09/ftc-takes-action-prevent-anticompetitive-arrangement-beretta-ruger-deal.

[5]              Consol. Computing, Inc. v. Spectrum Virtual, LLC, No. CV-23-6135390-S, 2026 WL 2719459 (Conn. Super. Ct. Sept. 10, 2026).

[6]              Press Release, Fed. Trade Comm’n, FTC Seeks Comment on Enforcement Policy Statement Regarding Personalized Pricing (Aug. 19, 2026), https://www.ftc.gov/news-events/news/press-releases/2026/08/ftc-seeks-comment-enforcement-policy-statement-regarding-personalized-pricing.

[7]              See Press Release, supra note 2.

[8]              See U.S. Dep’t of Just., Just. Manual §§ 1-19.220 through 1-19.260.

[9]              See id. §§ 1-19.000, 1-19.210.

[10]             Id. §§ 4-4.110, 4-4.111 (“DOJ Dismissal of a Civil Qui Tam Action”).

[11]            Press Release, supra note 2.

[12]            See id.

[13]             Press Release, supra note 4.

[14]             Id.

[15]             15 U.S.C. § 19.

[16]             Press Release, supra note 4.

[17]             See Consol. Computing, 2026 WL 2719459, at *1.

[18]             See id. at *1–2.

[19]             For further reading on recent CUTPA developments, we recommend our publication: Robert Langer, Andie King & Emily Flanagan, 2026 Legislative Session: CUTPA Developments Advisory, Wiggin and Dana LLP (June 16, 2026), https://www.wiggin.com/publication/2026-legislative-session-cutpa-developments-advisory/.

[20]             See, e.g., Press Release, supra note 6. Our June publication, supra note 19, covered in relevant part the passage of P.A. 26-100, § 44(e). Section 44, although substantively similar or identical to the current form, was subsequently superseded by Public Act No. 26-130, § 11.

[21]             See H.B. 5563, 2026 Gen. Assemb., Reg. Sess. (Conn. 2026).

[22]             See id. at 27–28.

[23]             See Press Release, Mikie Sherrill, Governor, State of New Jersey, Governor Sherrill Signs the Fair Price Protection Act to Shield New Jersey Grocery Shoppers from Surveillance Pricing (July 23, 2026), https://www.nj.gov/governor/news/2026/20260723a.shtml (prohibiting use of consumer surveillance data to set or alter individualized or different prices for groceries and home goods); Protection From Predatory Pricing Act, H.B. 895, 2026 Gen. Assemb., Reg. Sess. (Md. 2026), 2026 Md. Laws ch. 154 (prohibiting use of surveillance pricing to increase prices by third-party delivery service providers and food retailers).