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...]
Five Advertisers Speak Their Minds on the Importance of Network Partnerships, Transparency, and Fraud Prevention
2020 may just have been the most challenging year for business in the last 100 years. For the performance marketing industry, the challenges were mixed with some blessings. As workplaces and retail stores were shuttered and consumers were forced to stay home, in many cases working from home and online for longer hours each day, e-commerce boomed. Amidst the changes and chaos, … [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...]
What Will Health Insurance Open Enrollment Look Like This Year?
Each year, insurance brands and publishers must prepare for open enrollment periods, which began November 1. The pandemic and election could be factors in how people make their insurance decisions, and insurance marketers and publishers should be ready to deploy strategies that meet consumer needs and address new concerns. Differentiation Will Be Key As Insurance Shoppers … [Read more...]
Why Financial Brands Find Huge Success in Affiliate Marketing
Perform[cb]’s insights on the financial vertical and it’s growth potential A well-known fact in the industry, financial and fintech advertiser affiliate marketing budgets are on the rise as more financial brands hop on board with digital marketing opportunities. In fact, according to a recent PMA study¹, financial brands accounted for 35% of total advertiser spend across all … [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...]
Matt Frary Talks About The DMS Acquisition Of SmartChaos
The industry is seeing a trend towards consolidation and what I believe is driving it is the scale necessary to help manage a large brand’s customer acquisition. OPMs (outsourced program managers) typically started 10-15 years ago as one person to two person companies, with a focus on recruitment of affiliates and writing newsletters, and performing day to day functions. Some … [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...]
Affiliate Marketing in a Time of Coronavirus
What Now For Affiliate Marketing? On the down side, consumer spending has gone through the floor. Travel, retail, entertainment and restaurants have all been hit hard. Many merchants have seen big drop-offs over the last couple of weeks. The good news? E-commerce is going to bounce back quickly because nobody is going to be heading to a mall anytime soon. Healthcare and … [Read more...]