Chris Boone focuses his practice on regulatory issues related to payment processing, blockchain, advertising and marketing, transportation, and telecommunications. Chris provides counsel on regulatory compliance, contract negotiations, and general business matters. He also regularly assists clients in responding to federal and state investigative inquiries, demands, and complaints from the Federal Trade Commission (FTC), the Federal Communications Commission (FCC), state attorneys general, and other federal and state authorities.

As 2019 goes into full swing, it’s important for providers of payment processing services (referred to here as “acquirers”) and their merchants or submerchants to prepare for the various regulatory and industry changes coming this year. One such significant change comes in the form of Mastercard’s updated rules for negative option billing programs.

Set to take effect on April 12, 2019, Mastercard’s new rules will tighten consumer protection requirements for negative option merchants and their acquirers that process Mastercard transactions. Several laws such as the Electronic Fund Transfer Act, the Restore Online Shoppers’ Confidence Act, and various state laws already apply to negative option billing programs, but Mastercard’s new rules go even further. Among other things, the rules include a requirement for merchants to notify consumers at the end of a trial period before charging the consumer.


Notably, the new rules cover any card-not-present transaction where the consumer purchases a subscription to automatically receive a physical product (such as cosmetics, healthcare products, or vitamins) on a recurring basis. Fully digital services are not covered.

This means the rules apply to free trial offers and most forms of negative option programs involving product sales. The negative option plan may be initiated by a free trial, nominally priced trial, or no trial at all. However, if a trial is used, special rules apply to ensure the consumer is aware of and consents to subsequent payments at the trial’s conclusion.Continue Reading Mastercard Targets Negative Options In 2019 – Demands Transparency

request for informationCFPB Expands Call for Evidence with Additional RFIs

The CFPB has now issued six RFIs as part of Acting Director Mulvaney’s Call for Evidence Regarding Consumer Financial Protection Bureau Functions, which we have previously covered. The RFIs provide industry participants a chance to comment on the CFPB’s rules, policies, and practices regarding investigations, examinations, enforcement

virtual currencyThe Senate Committee on Banking, Housing, and Urban Affairs held a hearing on Tuesday on virtual currencies and the role of the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission (CFTC) in overseeing the virtual currency industry. Witnesses included SEC Chairman Jay Clayton and CFTC Chairman Christopher Giancarlo.

A key takeaway of the hearing was a concern among regulators and Committee members of opportunistic fraud taking place amid the hype around virtual currencies, also commonly known as cryptocurrencies.

Among these concerns were those involving celebrity endorsements of token sales in Initial Coin Offerings (ICOs). In some cases these sales may be fraudulent. CFTC Chairman Giancarlo noted one example where his agency took action against a company that solicited customers for a virtual currency known as My Big Coin. Mr. Giancarlo stated that within the agency that coin came to be known as “My Big Con,” as the company used the funds to purchase personal luxury items rather than using the funds for their purported purposes.Continue Reading Senate Banking Committee Holds Hearing on Virtual Currencies – Warns of Celebrity Endorsements

credit cardsThe days of signing your grocery receipt may be over soon, as the four major credit card brands (American Express, Discover, Visa, and Mastercard) are each making efforts to do away with signatures for various credit card transactions. The extent and geographic reach of these changes, however, are different for each brand, but one commonality is that the changes will begin in April 2018. In particular,

  • MasterCard will no longer require signatures for purchases in the U.S. and Canada;
  • Discover is doing away with the requirement in the U.S., Canada, Mexico, and the Caribbean;
  • American Express is eliminating the requirement globally; and
  • Visa is making the signature requirement optional for EMV contact or contactless chip-enabled merchants in North America.

Continue Reading Say Goodbye to Credit Card Signature Requirements

We wrote previously that for payment processors the death of Operation Choke Point was greatly exaggerated.  We also noted that a prior challenge to the FTC’s ability to impose joint and several liability on an executive for his former employer’s actions had failed. A recent appellate victory for the FTC reinforces both these points.  In FTC v. Universal Processing Services, 11th Circuit affirmed the district court’s imposition of joint and several liability on a payment processor for substantially assisting the Telemarketing Sales Rule (TSR) violations of its merchants.

Simply put, the court’s ruling affirmed that a payment processor can be held responsible for the total volume of sales processed for a merchant when the processor’s conduct amounts and unfair or deceptive practice under the Federal Trade Commission Act (FTC Act).  A violation of the TSR constitutes a violation of the FTC Act, which allows for penalties including equitable monetary relief.Continue Reading The Joint (And Several Liability) is Jumpin’

Am I crazy? Did my phone ring? These questions may have crossed your mind during that moment when you look down at the top left corner of your cell phone and see the universal icon for new voicemail. Many marketers are now using or considering using ringless voicemail technology, or Direct-to-Voicemail cell messaging, to leave messages directly on a cell phone’s voicemail server. In simplistic terms, ringless voicemail technology allows for voice messages to be deposited directly into a consumer’s cell phone voicemail box, without any ringing on the cell phone and without being carried over the cellular network.

We recently blogged about a March 2017 petition filed at the Federal Communications Commission (FCC) by All About the Messaging, LLC (AATM), which sought a pronouncement that the deployment of ringless voicemail technology does not constitute a “call” under the Telephone Consumer Protection Act (TCPA). AATM’s petition turned out to be a lightning rod for supporting and opposition comments.Continue Reading If a Call Is Made From the Woods and Nobody’s Around To Receive it, Is it a TCPA Violation?: Ringless Voicemail FCC Petition Post-Script

telemarketing lawsOn March 31, 2017, All About the Message LLC (AATM), filed a petition for a declaratory ruling before the Federal Communications Commission (FCC), requesting that the FCC issue a rule that would declare that delivering a voice message directly into a consumer’s voicemail box does not constitute a “call” that is subject to the Telephone

texting lawsBreaking up can be messy, whether you are the one doing the breaking up or the one being broken up with. And, we all know about the different ways to break up with someone. “It’s not you, it’s me . . .”, “I need space . . .”, “I’m washing my hair that year . . .” However, when it comes to the proper way of breaking up with a telemarketer over text message, a New Jersey federal court is primed to shed some light on the issue.

On January 12, 2017 plaintiff Amy Viggiano filed a class action lawsuit (Viggiano v. Kohl’s Dep’t Stores, Inc., No. 3:17-cv-00243 (D.N.J.), alleging that Kohl’s violated the Telephone Consumer Protection Act (TCPA) by sending unwanted text messages and requiring consumers to respond “STOP” to the texts to cancel them. Specifically, the complaint alleges that Kohl’s “sent millions of text messages to consumers after purporting to designate the exclusive means by which consumers may withdraw consent to receive such messages.” There generally can be no violation of the TCPA if the consumer has consented to receive marketing calls or text messages – at least absent a subsequent request to the sender to stop sending them. The Federal Communications Commission (FCC) has ruled that consumers have the right to revoke such consent by using any reasonable method, including orally or in writing. The issue in this case turns on whether, after the plaintiff unequivocally consented to receive marketing text messages from Kohl’s, she reasonably broke up with Kohl’s.Continue Reading “It’s Over, Stop Texting Me”: Class Action Suit Against Kohl’s Alleges TCPA Violations

cash and credit cardsOn March 29, 2017 the Supreme Court of the United States held that a New York law prohibiting retailers from disclosing credit card surcharges, while allowing discounts for cash purchases (effectively eliminating the surcharge), regulates speech and not just conduct. The Court, however, passed on evaluating whether the statute violates the First Amendment. Instead, the Court remanded the case, Expressions Hair Design et al. v. Schneiderman et al., No. 15-1391, back to the Second Circuit for review under the First Amendment.

At issue in this case was New York’s “single sticker” requirement in General Business Law Section 518. In the Court’s Opinion, Chief Justice Roberts, explained that “[m]erchants who wish to employ differential pricing may do so in two ways relevant here: impose a surcharge for the use of a credit card, or offer a discount for the use of cash. In N.Y. Gen. Bus. Law §518, New York has banned the former practice.”Continue Reading Supreme Court Rules New York Law Prohibiting Disclosure of Surcharges Regulates Speech, Sends Case to Second Circuit for First Amendment Analysis

telephoneUnder the Telephone Consumer Protection Act (TCPA), businesses generally may not place an autodialed telemarketing call or a telemarketing call that delivers a pre-recorded message unless the recipient has provided his or her prior express consent to receive such a call. Recently, the Sixth and Ninth Circuits ruled on whether a business may place a telemarketing call or send a telemarketing text message to a prior customer. Specifically, the courts weighed in on whether a business may continue to send such telemarketing communications under the TCPA when the agreement governing the parties’ relationship, through which prior express consent was obtained, is terminated or has expired. These decisions further muddy the water in a legal area that is already murky at best.
Continue Reading ‘Til Contract Termination Do We Part: Circuit Courts Reach Differing Conclusions on Whether TCPA Consent Survives the Termination or Expiration of a Contract