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...]
What Digital Marketers Need to Know About Contractual Limitation of Liability Clauses
In one form or another, limitation of liability clauses are almost always in digital marketing contracts. They typically attempt to exclude certain risks that a party deems appropriate, and provide that one party’s liability on a campaign may not exceed a stated cap. When negotiating performance marketing agreements, marketers need to understand the legal significance of … [Read more...]
CBD Advertising and FTC Enforcement
Since passage of the “Farm Bill” which legalized hemp-derived CBD containing less than 0.3% THC, the Federal Trade Commission has twice issued warning letters to marketers of CBD products. In March 2019, the FTC and U.S. Food and Drug Administration issued warning letters to companies that allegedly made false and unsubstantiated “disease treatment” claims for CBD products. … [Read more...]
Court Addresses Unconstitutional TCPA Damages and Who Can be Held Liable
A company that managed the ownership rights of a film hired a company to promote and market the film. There were approximately 3.2 million telephone calls made over a short period of time that delivered a prerecorded audio message from former Arkansas Governor Mike Huckabee. The two plaintiffs received two voice messages and subsequently initiated class action … [Read more...]
Online Advertising and “Enhanced Notice”
A recent BBB opinion appears to be another harbinger of the direction that data privacy law is going. Specifically, a decision by the Online Interest-Based Advertising Accountability Program (the “Program”) illustrates the importance of providing consumers with “enhanced notice” when data is collected for interest-based advertising. In response to a consumer complaint, the … [Read more...]
Individualized Issues of Consent Result in TCPA Class Action Certification Denial
Class actions are designed to promote the efficiency of litigation by allowing the claims of a group of individuals with the same claims to be decided in the same proceeding. They are commonly utilized by plaintiffs’ attorneys in Telephone Consumer Protection Act matters. In the matter of Tomeo v. CitiGroup, Inc., No. 13-C-4046, 2018 U.S. Dist. LEXIS 166117 (N.D. Ill. Sept. … [Read more...]
FTC Reiterates Privacy and Data Security Priorities
The Federal Trade Commission recently testified before the House Energy and Commerce Subcommittee about its work to protect consumers, promote competition, privacy and data security, and IoT. In doing so, according to FTC defense lawyer Richard B. Newman, the FTC reiterated its commitment to maximizing its resources in light of marketplace changes. FTC Chairman Joe Simons … [Read more...]
Senators Propose Internet Privacy Bill That Threatens Digital Advertising
Earlier this month, Senators Richard Blumenthal and Ed Markey (D-MA) introduced new privacy legislation entitled the Customer Online Notification for Stopping Edge-provider Network Transgressions (“CONSENT”) Act. Senator Markey has referred to the legislation as a “privacy bill of rights” and believes that recent privacy violations have necessitated consent-based … [Read more...]
FTC Investigation and Enforcement Trends
Privacy and data security-related issues remain a hot-button subject and the parameters are still being defined by the FTC, as well as courts. Recently, the FTC has challenged alleged inadequate data security measures on the basis that they constitute “unfair business practices.” The FTC Act defines unfair business practices as practices that cause or are likely to … [Read more...]
The Story Behind $O FTC Settlements and Suspended Judgments
It is a phrase you see or hear attorneys make when describing FTC settlements: “The order includes a suspended judgment.” The Federal Trade Commission refers to allowing settling defendants to avoid paying a judgment in full as a suspended judgment. Often misunderstood, partially or totally suspended judgments are based upon a defendant’s inability to pay the full amount of … [Read more...]