Advertising Law Enters the Political Process

It is pretty rare for the Lanham Act and state law deceptive advertising cases to involve political candidates, but a case in Virginia shows how advertising law can be used to help candidates who have been harmed by entities trying to raise money using their name and likeness. We have more information on the political implications of this settlement on the Political Law Briefing Blog.

How it all Started

In 2013, Ken Cuccinelli was running for governor of Virginia, and a political action committee (“PAC”) decided it would raise money, ostensibly to help him win. What Mr. Cuccinelli discovered, however, was that he only received a small amount of the money raised, and the PAC did not execute its promises of a get-out-the-vote campaign for him. Nearly a year after the election, he sued the PAC and the principals involved for false advertising. The defendants filed a motion for summary judgment. The court held a settlement conference, and the defendants ended up paying Mr. Cuccinelli $85,000, provided him their mailing lists of donors so he can use or rent those lists, and agreed to honor requests from candidates to stop using their name an image.  Continue Reading

FCC Chairman Wheeler Proposes Significant Updates to TCPA Rules

After months of speculation and numerous petitions to the agency, Federal Communications Commission (“FCC”) Chairman Tom Wheeler issued a fact sheet on Wednesday, May 27, addressing two dozen petitions seeking clarity on FCC enforcement of the Telephone Consumer Protection Act (“TCPA”) and proposing significant actions intended to strengthen consumer protections related to unwanted calls and text messages.

In particular, the chairman’s proposal addresses the meaning of the ever-controversial definition of “autodialer,” the right to revoke consent to be called, the treatment of reassigned numbers, and the application of the statute to political calls to wireless numbers.  The FCC is scheduled to meet to vote on the proposed updates on June 18 at an open meeting.  If adopted, big changes could be in store for telemarketers.  We provide a brief overview of the proposals below.  Continue Reading

Is Organic the New Natural?: The Impact of a Court Holding that an “Organic” Claim Is Not Preempted By Federal Law

By now, class action suits over foods using the term “natural” are old news following the age old American story:  class action plaintiff meets product, product assures plaintiff it is all-natural, plaintiff finds something in product that it doesn’t think is natural, lawsuit ensues.   Over the course of the last few years, cases challenging “natural” and “all-natural” claims have proliferated in the absence of a clear federal definition of natural, while cases involving “organic” claims have remained rare in light of detailed federal laws and regulations laying out a standard and a certification process for products labeled as organic.   On May 7th, the United States District Court for the Southern District of New York (S.D.N.Y.) issued a ruling on a motion to dismiss in Segedie v. Hain Celestial Grp., Inc., allowing a consumer class action alleging false and misleading “organic” claims to move forward, finding that these claims under state consumer protection laws were not preempted by federal organic laws and regulations.   Continue Reading

FTC’s New Guidance on Implied Tying Claims Under the Magnuson-Moss Warranty Act

The Magnuson-Moss Warranty Act (MMWA), is one of many vehicles that plaintiffs use to bring lawsuits over warranty claims.  It is a federal statute that governs warranties on consumer products.  The Federal Trade Commission has enacted regulations governing the disclosure of written consumer product warranty claims.

Just this month, the Federal Trade Commission completed a review of its Interpretations, Rules and Guides under the MMWA.  One of the revisions that the FTC made was to clarify that under the MMWA, warranty language that implies to a consumer that warranty coverage is conditioned on the use of select parts or service is deceptive.  The FTC wrote that “[g]enerally, the MMWA prohibits warrantors from conditioning warranties on the consumer’s use of a replacement product or repair service identified by brand or name, unless the article or service is provided without charge to the consumer or the warrantor has received a waiver.”  Continue Reading

Supreme Court to Decide whether the TCPA’s, FCRA’s and FDCPA’s Statutory Damages Provisions Are Damaged under an Article III Standing Analysis

Statutes such as the Telephone Consumer Protection Act (“TCPA”), Fair Debt Collection Practices Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”) long have been favorites for class-action lawyers.  Plaintiffs’ attorneys leverage significant statutory damages to generate large judgments or settlements for persons who often experience nothing more than the inconvenience of receiving an unwanted call or text – in other words, no actual damages are present.  The United States Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins to decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who, therefore, could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.  The case has widespread implications for lawsuits based on statutes that offer statutory damages (see our TCPA Update for a list of recent lawsuits).

Spokeo, Inc. v. Robins was filed in the United States District Court for the Central District of California under the FCRA.  The plaintiff alleged that Spokeo, Inc., a credit reporting agency, had published inaccurate information that potentially could affect his creditworthiness.  The district court dismissed his complaint, holding that the plaintiff failed to allege an injury or actual harm, characterizing the allegations as simply that the plaintiff had been unable to obtain employment.  According to the court, “allegations of possible future injury” do not satisfy Article III standing requirements.   Continue Reading

Miller/Coors Sings the Blues over Craft Beer Lawsuit

Image by: Fernando Souza (CC BY 2.0)

Image by: Fernando Souza (CC BY 2.0)

There has been a trend of late toward “hand-crafted” goods.  Advertisers, as they always do, have responded to this trend through creative marketing and, as they always do, class action lawyers have not been far behind.  The alcohol industry has been a prime target; for example, Tito’s Handmade Vodka was sued recently by a plaintiff alleging that the moniker “handmade” was deceptive.  Maker’s Mark, Jim Beam and Templeton Rye have also been hit with similar lawsuits.  Now a case in San Diego has gone one step further and is definitely worth watching.

A San Diego man has sued Miller/Coors claiming that it deceptively markets its Blue Moon beer as a “craft” beer.  While the complaint notes essentially as an afterthought that the beer is advertised as “artfully crafted,” the main focus of the complaint relates to the fact that Miller/Coors allegedly went to great lengths to hide its connection with the brand.  The complaint alleges that the product is priced comparably to higher priced small batch craft beers (almost 50% higher than mass produced beers) and is placed on shelves with craft beers.  In addition, the complaint alleges that Miller/Coors intentionally omits the Miller/Coors name from the product label and advertising as well as on the Blue Moon Brewing Company website. These facts, the complaint alleges demonstrate that Miller/Coors has sought to mislead consumers into believing that Blue Moon is a microbatch craft beer rather than a macrobatch product.

No doubt Miller/Coors will likely argue, among other things, that its labeling and company identification practices are fully compliant with the applicable regulations.  And the case may not survive a motion to dismiss.  But given the growing prevalence of D/B/As any court ruling in this case is definitely worth watching.

Understanding Federal and State AG Financial Services Enforcement Trends

Looking to avoid being caught in the crosshairs of increased scrutiny by the U.S. Department of Justice (DOJ), Consumer Financial Protection Bureau (CFPB), Federal Trade Commission (FTC), federal banking regulators, and state Attorneys General?

It’s no secret that consumer financial services providers and their vendors are being heavily scrutinized by federal and state enforcement agencies.  Federal and state enforcement officials have shifted their focus to financial services providers, including small dollar lenders, mortgage lenders and servicers, telemarketers, private student lenders, debt collectors, and their third party payment processors and other vendors.  The DOJ’s Operation Choke Point (OCP), and other government enforcement actions targeting financial services providers and vendors, are examples of this enforcement evolution.  In addition, state Attorneys General are actively enforcing the same laws and regulations as the CFPB.  Continue Reading

Section 5 Unfairness: Cheated on me and broke my heart…

 …Gonna show the world your private parts (From the 2012 song “Revenge Porn!” by Blood on the Dance Floor)

When a partner of mine asked me if I had heard about the FTC’s “revenge porn” case, I thought she was pulling my leg. But she wasn’t.  It turns out that the Federal Trade Commission recently accepted a consent agreement with alleged revenge-pornster Craig Brittain.

The fact that the FTC had gone after a revenge-porn website was enough to get my curiosity.  But what got my attention was the unfairness count of the complaint against Brittain — which was based on an interpretation of the FTC’s unfairness authority that I found surprising.   So even if revenge porn might not be your thing it’s worth a few moments to understand how the FTC used its unfairness authority in this matter.

In case you’re not familiar with revenge porn, it’s a type of online harassment that involves the posting of naked pictures of people without their permission.  It’s called revenge porn because it’s believed that most of the people who provide the naked pictures to revenge-porn websites are jilted lovers or have some other kind of beef with the people in the pictures.

It’s not clear what inspired the FTC to join the crusade against revenge porn.  But the closer you look at the FTC’s action against Craig Brittain, the harder it is to understand – or defend.  Continue Reading

Arbitrate-Shun: Congress’s Proposed Attack on Arbitration Clauses

Last week, Senators Al Franken (D-Minn) and Hank Johnson (D-Ga) revived the Arbitration Fairness Act (“Act”), which would ban arbitration provisions in consumer contracts, as well as employment, antitrust, and civil rights cases, and only allow the parties to agree to arbitration after the dispute arises.  The newfound interest in the Act demonstrates renewed opposition to arbitration as an alternative to litigation.

If passed, the Act would have a clear impact on marketers’ ability to avoid class actions and limit their liability in contracts with consumers.  Online marketers often implement binding arbitration provisions to reduce their exposure to class action lawsuits brought by consumers.  But the proposed Act would ban those provisions and only allow the parties to agree to arbitration after the dispute arises.  Continue Reading

Filing a TCPA Lawsuit? There’s an App for That

Image by Wolf Gang

Image by Wolf Gang

It seems as though there is a mobile app for everything these days.  Hot new restaurant?  Find it on the OpenTable app and make a reservation.  Want to find love?  Swipe the Tinder app to the left or right and meet your soul mate.  Have an affinity for sci fi?  No problem.  Download the Star Trek Tricorder app and boldly go where no cell phone owner has gone before.  File a Telephone Consumer Protection Act (“TCPA”) lawsuit?  Well, if plaintiffs’ attorneys get their way, consumers will be using an app to track unwanted calls and communicate with law firms about potential TCPA actions.  Two mobile applications, called “Block Calls Get Cash” and “Stop Calls Get Cash,” allow consumers to create legal documentation of unwanted robocalls, telemarketing calls, and debt collection calls.  The information, then, is forwarded to law firms specializing in filing lawsuits against businesses using robocalls and engaging in debt collection activities.

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