On February 10, 2022 the Federal Trade Commission announced that it intends to vote whether to issue an Advance Notice of Proposed Rulemaking on “deceptive earnings claims for business ventures, gig or other work opportunities, or educational, coaching or training offerings.” The vote is set to take place on February 17, 2022 at an open meeting. A webcast will be available on … [Read more...]
Important Email Marketing Legal Decision by California Court of Appeals
On June 21, 2021 in the matter of Greenberg et al. v. Digital Media Solutions LLC, the Court of Appeal of the State of California held that: (i) a recipient of a commercial email advertisement sent by a third party is not precluded as a matter of law from stating a cause of action under section 17529.5 against the advertiser for the third party’s failure to provide sufficient … [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...]
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...]
California’s New Data Broker Registration Law
If compliance with the California Consumer Privacy Act isn’t enough to fill marketers’ compliance plates, California Governor Gavin Newsome has signed a number of proposals to amend the CCPA. One of them requires “data brokers” to register in a directory maintained by the California Attorney General. The amendments are intended to replace or supplement the statutory text of … [Read more...]
TCPA Update: Telemarketer Friendly ATDS and Single Text Rulings
A Florida federal court recently ruled in favor of the defendant when it held that dialing equipment must have the requisite “present capacity” to constitute an ATDS (Brown v. Ocwen Loan Servicing LLC) Here, husband-and-wife plaintiffs claimed that defendant mortgage servicer violated the Telephone Consumer Protection Act because it used an ATDS and an artificial or … [Read more...]
FTC Warns Marketers to Take CIDs and Subpoenas Seriously
The Federal Trade Commission obtains information through subpoenas and civil investigative demands (CIDs) pursuant to its mission to investigate deceptive and unfair trade practices. Such requests are legally enforceable and the FTC recently issued a warning that recipients of subpoenas or CIDs must take their compliance obligations seriously. What is a CID A CID … [Read more...]
FTC Signs Consumer Protection MOU With UK Regulator
The Federal Trade Commission has signed a memorandum of understanding with the United Kingdom’s Competition and Markets Authority (CMA), a non-ministerial department of the U.K. government charged with enforcing competition and consumer protection laws within and outside of the United Kingdom. The MOU is intended to strengthen enforcement cooperation on FTC … [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...]
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...]
SCOTUS to Hear Internet Sales Tax Case
The U.S. Supreme Court has agreed to hear an appeal by South Dakota of high-court precedent dating back to the pre-internet era. Depending on how the matter is resolved, it could effectively enable state and local governments to collect billions of dollars in sales taxes from online retailers. In Quill v. North Dakota (1992), the Supreme Court considered a matter that … [Read more...]
FDA Issues CBD Substantiation Warnings
On November 1, 2017, the Food and Drug Administration (FDA) issued warning letters to four companies with respect to CBD-related claims made in online stores and on social media websites. The advertising at issue includes phrases like “CBD makes cancer cells commit ‘suicide’ without killing other cells” and “combats tumor and cancer cells.” In a press announcement, the FDA … [Read more...]
RIP Net Neutrality
Net neutrality, the “First Amendment of the Internet,” is the idea that ISPs should treat everyone’s data equally. It ensures that the large cable ISPs are unable to choose which data is sent more quickly than other data and which websites get blocked (or throttled), depending upon which content providers pay a premium. The FCC has circulated a draft “Restoring Internet … [Read more...]
FTC Defense Lawyer Alert: FTC Data Security Enforcement Authority Takes a Hit
A District Court in Northern California has recently dismissed multiple “unfairness” claims against a company that manufactures and sells home networking devices on the grounds that the FTC failed to tie alleged data security violations to actual consumer injury. The ruling potentially weakens the Federal Trade Commission’s position that it is not required to allege actual … [Read more...]