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...]
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...]
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...]
FTC’s Assault on Paid-For Rankings, Ratings and Review Websites Continues
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 be “clearly and conspicuously” disclosed, unless it is already clear from the context of the communication. A material … [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...]
Federal Court Holds TCPA Plaintiff Did Not Adequately Allege ATDS
In Bader v. Navient Solutions, LLC (N.D. Ill. June 14, 2019), the North District of Illinois dismissed a Telephone Consumer Protection Act (TCPA) plaintiff’s claims on the basis that the complaint did not possesses sufficient facts to plausibly allege the defendant had used an automated telephone dialing system (ATDS), consistent with post-ACA International v. Federal … [Read more...]
Nevada Passes Law Allowing Opt-Out of Data Sale
Nevada has just passed SB 220, a data privacy law that permits consumers to opt-out of data sales by web operators. The law amends Nevada’s 2017 online privacy legislation that requires website operators to make various data privacy disclosures, including categories of covered information collected, categories of third-parties with whom it shares covered information, the … [Read more...]
FTC Defense Lawyer Alert: Third Circuit Limits FTC’s Enforcement Authority for Prior Conduct
Bad facts for the Federal Trade Commission? Maybe. Resulting in bad law from the FTC’s perspective? Maybe. What is certain is that the Third Circuit has issued a significant decision that may very well flip the Federal Trade Commission’s ability to challenge prior conduct in federal court on its head. FTC defense lawyer Richard B. Newman has … [Read more...]
FTC Absorbs Multiple Blows to its Enforcement Authority
The Federal Trade Commission has historically achieved significant and almost unchecked success fending off challenges to the agency’s authority to use the FTC Act to collected money and hold individuals liable. Until now. Remedial Arsenal Under Attack Section 13(b) of the FTC Act authorizes the FTC to seek preliminary injunctive relief where the agency has “reason … [Read more...]
FDA Position on Cannabis-Derived Compounds
Regulation of Products Containing Cannabis and Cannabis-Derived Compounds Immediately following the 2018 Farm Bill being signed into law, the U.S. Food and Drug Administration issued a statement on CBD products intended for human consumption. The December 20, 2018 statement from FDA Commissioner Scott Gottlieb, M.D. first recognizes that the Agricultural Improvement Act of … [Read more...]
TCPA Alert December 2018
FCC Releases Draft Order to Combat “Robocalls” The Federal Communications Commission recently released two draft orders intended to address unlawful robocalls. The first establishes a nationwide reassigned number database in order to address caller liability under the Telephone Consumer Protection Act when the new user has not provided prior express written consent. The … [Read more...]
FTC Attorney on Recent TCPA Litigation Developments
Congress Proposes Legislation to Combat Robocalls Congress has proposed a bill to attack robocalls. The “TRACE Act” would expand FCC authority under the Telephone Consumer Protection Act (TCPA) and empower the FCC to mandate call various rules to reduce ID spoofing. Of particular importance, the Act purports to expand the statute of limitations. At present, the FCC is … [Read more...]
California Court Says Customer Lists Not a Trade Secret
The California Court of Appeal recently held that a non-solicitation of employee provision improperly impinged on the ability to freely engage in gainful employment. Historically, California courts have upheld such agreements in limited situations if they are reasonable. The case involves individual defendants that executed a Confidentiality and Non-Disclosure Agreement. … [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...]
New Cyber Security Laws Effective
On September 1, 2018, Colorado’s breach notification statute update became effective. The legislation bolsters data privacy protections by requiring notice to Colorado residents affected by a data breach and the Colorado AG within 30 days of determining that a security breach occurred. It also sets forth the content of notice to residents, expands the definition of personal … [Read more...]