In the matter of Cunningham v. USA Auto Protection, LLC, the professional litigant plaintiff alleged that USA Auto Protection made more than twenty telemarketing calls to his mobile telephone number without consent. The defendant argued that the plaintiff - or someone acting on his behalf - completed an opt-in form on its website whereby he consented to receive telemarketing … [Read more...]
Defendant Behind Alleged Bogus Health Insurance Scheme Agrees to Settle FTC Charges
One of the defendants behind an alleged sham health insurance scheme has been permanently banned from the health care business as part of a settlement with the Federal Trade Commission. The FTC’s proposed settlement with the individual defendant stems from an ongoing lawsuit against the Florida-based Simple Health enterprise. The FTC alleges that the Simple Health … [Read more...]
Court Holds No TCPA Standing With Ringless Voice Mail Message
The Eleventh Circuit recently held that a plaintiff does not suffer concrete injury through receipt of a single ringless voice mail message. Grigorian v. FCA US LLC, No. 19-15026, 2020 WL 7238392 (11th Cir. Dec. 9, 2020). The Eleventh Circuit previously ruled that receipt of a single, unsolicited text message does not constitute the harm necessary to achieve Article III … [Read more...]
DoJ Announces Historic Civil Penalty in a Telemarketing Enforcement Action
The Department of Justice has announced a settlement in which DISH Network LLC will pay $126 million in civil penalties to the United States for placing millions of telemarketing calls in violation of the Federal Trade Commission's Telemarketing Sales Rule. This settlement represents the largest civil penalty ever paid to resolve telemarketing violations under the FTC Act, … [Read more...]
Can an EBR be Created DURING a Telephone Solicitation?
At least one federal court ruled that an “established business relationship” can be created during a telephone call - and prevent further calls from violating the TCPA - even if that call is a “telephone solicitation” that violates the Telephone Consumer Protection Act. Charvat v. Southard Corp., No. 2:18-cv-190 (S.D. Ohio). Background In Southard, the plaintiff alleged … [Read more...]
Supreme Court Brief Filed in Favor of Broad Interpretation of ATDS Definition
The Plaintiff in Facebook, Inc. v. Duguid has recently filed its merits brief on this issue of whether the Telephone Consumer Protection Act’s definition of “automatic telephone dialing system,” 47 U.S.C. § 227(a)(1), encompasses a device that can store and automatically dial telephone numbers without using a random or sequential number generator. The Supreme Court case … [Read more...]
Third Circuit Deals Blow to FTC Disgorgement Authority
As previously blogged about here, here, here and here, the FTC’s authority to seek monetary disgorgement in federal court may be on the ropes. Breaking News The Third Circuit has just issued an opinion in FTC v. AbbVie, Inc. holding that the FTC is not entitled to seek disgorgement under Section 13(b) of the FTC Act. In August 2019, the Seventh Circuit similarly decided … [Read more...]
FTC Settles Charges Against Online Investment Training Program Providers While Doubts About the Scope of FTC Enforcement Authority Loom
As previously blogged about here, providers of online training and business coaching programs have increasingly found themselves on the receiving end of unwanted Federal Trade Commission scrutiny. A recently announced settlement with Online Training Academy requiring its principals to turn over millions of dollars in cash and assets further illustrates the dangers of operating … [Read more...]
Advertiser and Network Responsibilities for What Others Say in Social Media
As previously blogged about here, the FTC actively continues its assault on paid-for rankings, ratings and review websites. The FTC’s Endorsement Guides provide that if there is a “material connection” between an endorser and an advertiser – in other words, a connection that might affect the weight or credibility that consumers give the endorsement – that connection should … [Read more...]
Supreme Court Expands TCPA to Cover More Categories of Speech
In a 6-3 opinion, delivered by Justice Kavanaugh, the Supreme Court affirmed the Fourth Circuit’s ruling in Barr v. American Association of Political Consultants, Inc. and held that the government-debt carve-out from the Telephone Consumer Protection Act’s robocall restrictions can be severed from the rest of the TCPA, leaving the automated calling provisions intact. The … [Read more...]
Breaking News: Supreme Court Limits Regulatory Right to Disgorgement in Judicial Enforcement Actions
On June 22, 2020, the Supreme Court issued its highly anticipated opinion in Liu v. Securities and Exchange Commission. In doing so, the Court rejected the Liu petitioners’ argument that the SEC is not entitled to “equitable” disgorgement of profits from unlawful activity in securities litigation, but provided for deduction of legitimate expenses. The opinion was authored … [Read more...]
Court Enforces TCPA Clickwrap Agreement in a Victory for Marketers
One of the key issues in any Telephone Consumer Protection Act class action lawsuit is whether there exists “prior express written consent.” In a noteworthy victory for marketers, consent related mechanisms made all the difference. In Lundbom v. Schwan's Home Service, Inc., the plaintiff filed a TCPA lawsuit, alleging that the defendant violated the TCPA by sending her … [Read more...]
California Redefines Analysis of Independent Contractor Classification
In September 2019, California Governor Gavin Newsom signed a new measure (AB 5) that essentially redefines businesses classify employees and independent contractors. The legislation, as drafted, will result in a significant number of contractors being reclassified as employees which may, in turn, potentially impact wage-and-hour requirements, legal liability and devastate … [Read more...]
Dietary Supplement Marketing and Earnings Claims Amid Coronavirus Pandemic
Unsubstantiated marketing claims that exploit consumer anxiety amid the coronavirus pandemic are a top priority for private class action litigants and federal regulators. In fact, the FTC and FDA have recently issued joint warning letters about express and implied claims on marketing materials that are not supported by competent and reliable scientific … [Read more...]
NY AG Focused on Price Gouging During COVID Outbreak
The New York Office of the Attorney General is actively investigating the advertising or offering for sale of necessary consumer goods at unconscionably excessive prices during the period of market disruption caused by the (COVID-19) outbreak. Necessary consumer goods include sanitizing and disinfecting products used to mitigate the spread of COVID-19. They also include … [Read more...]