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.

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

breathalyzerBreathalyzer accuracy is serious business. While the instructions may indicate “blow here,” that instruction does not apply to marketers of the device.  The Federal Trade Commission (“FTC”) drove this point home in a recent settlement with the marketer of an app-supported breathalyzer device that no doubt left the marketer feeling a bit hungover.  The settlement also serves as a reminder that the FTC maintains broad unfairness authority which in this case applied to degradation of product performance over time.  The settlement is also part of the FTC’s continuing focus on the burgeoning smartphone app marketplace.

The FTC in its complaint alleged that in advertising its “Original” and “Breeze” breathalyzer device variants, Breathometer falsely stated that the products were proven, through rigorous government lab-grade tests, to accurately measure consumers’ Blood-Alcohol-Content (“BAC”). Breathometer also claimed that its Original device was as accurate as other high-end breathalyzers, and that its Breeze variant was more accurate than other high-end breathalyzers and was a “law-enforcement grade product.”Continue Reading Breathalyzer Claims Are Not Puffery

medical appsAs 2017 quickly approaches, and consumers look for gift ideas or help with their New Year’s resolutions, “apps” that focus on fitness and health are increasingly popular. A recent FTC settlement against Aura Labs, Inc. (“Aura Labs” or “Aura”) and its principal, for allegedly making deceptive claims regarding the accuracy of its blood pressure measuring app, confirms that the same advertising rules apply to claims made for an app as for “hard goods.”

Aura Labs sold the “Instant Blood Pressure App,” a mobile device software application that uses mathematical algorithms, mobile device measurements, and consumer inputs (gender, birthdate, height, and weight) for the purported purpose of blood pressure measurement. The app was available for purchase and download through the Apple App Store or the Google Play marketplace for $3.99 or $4.99.Continue Reading Deceptive Claims for Health App and Endorsements by Employees Raise FTC’s Blood Pressure

call centerThe FCC was busy in November.  On November 18, the FCC posted an Enforcement Advisory on robotexting and consumer protection, and on November 21 published a blog on robocalls.  The FCC notes that the Advisory was issued to promote understanding of the clear limitations on the use of autodialed text messages, often referred to as “robotexts.”

The Advisory reminds us that the FCC’s TCPA rules apply to text messages as well as pre-recorded calls, and reiterates that “prior express written consent” is required for autodialed texts that include or introduce an advertisement, whereas “prior express consent” is required for messages that are not commercial in nature.Continue Reading FCC Posts Enforcement Advisory Alerting Businesses of TCPA Text Messaging Rules

Caribbean Cruise Line Settlement

(Revised 10/13)

A Telephone Consumer Protection Act (“TCPA”) class action litigation, Birchmeier, et al. v. Caribbean Cruise Line Inc., et al., No. 1:12-cv-04069 (N.D. Ill.), has been winding its way through the court system for four years and finally settled this month. Caribbean Cruise Line and its co-defendants, who were sued for violating the TCPA by allegedly robocalling millions of individuals with offers for free cruise trips, will now pay between $56 million and $76 million, to settle claims of the approximately one million person class who received such calls from the defendants in 2011 and 2012, after the Northern District of Illinois certified several classes, granted partial summary judgment to the plaintiffs, and denied the defendants’ motions to decertify the class and for summary judgment in their own right. Individual class member recovery will be based on the number of valid claims submitted, with each class member being entitled to $500 for each call received (with a rebuttable presumption that each class member received three calls) but subject to reduction pro rata if the total payments exceed $76 million, after the costs of administration, incentive awards to the four class representatives ($10,000 each), and any award of attorneys’ fees (at most $24.5 million) are factored in. (should total payments at $500 per call (plus administration costs, incentive awards, and attorneys’ fees) be less than the $56 million settlement floor, each class member may receive a pro rata payment of more than $500 per call up to a maximum of $1,500 per call.) If the settlement is approved and Caribbean Cruise Line ultimately ends up paying the $76 million, then, as the plaintiffs’ attorneys noted in their motion for preliminary approval, the settlement “promises to go down as the largest settlement in TCPA history.”Continue Reading Why the Caribbean Cruise Line Record-Breaking TCPA Settlement Could Contribute to “The End of the [TCPA] World As We Know It” (and We Feel Fine)

WorkshopThe Federal Trade Commission (FTC) just released its agenda for its September 15th workshop, “Putting Disclosures to the Test,” a full-day event aimed at improving the testing of disclosures by industry, academics, and the FTC.

The workshop will review testing methodologies and examine how consumers perceive disclosures. Information will also be presented on how to test disclosure effectiveness and what types of testing are most appropriate for a given disclosure type or medium. There will also be discussion on the costs and benefits of disclosure testing.

The full agenda can be viewed here.Continue Reading FTC Aims To Understand Disclosures Through Consumer Testing – Announces Workshop Agenda

TCPA Dismissal Raises More Questions Than It Answers

Treadmills and WeightsThe U.S. District Court for the District of New Jersey recently dismissed a putative class action alleging violations of the Telephone Consumer Protection Act (TCPA) on grounds that the Court lacked subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1). Yet, the one-page dismissal order leaves more questions unanswered than it resolved.

In Susinno v. Work Out World, Inc., No. 3:15-cv-5881 (D.N.J. Aug. 1, 2016), the plaintiff alleged that Work Out World, a gym offering paid memberships, left an unsolicited voicemail message on her cell phone in violation of the TCPA. She alleged that the defendant’s actions caused her “aggravation and annoyance” and deprived her of phone time. She also claimed that putative class members may have incurred cellular telephone charges or reduced minutes as a result of the unauthorized calls.Continue Reading No Concrete Injury or Tendering Payment = Moot?

By m01229 from USA [CC BY 2.0], via Wikimedia Commons

While the Food and Drug Administration (FDA) is still considering whether to issue guidance over the use of the term “natural” in food products, the Federal Trade Commission (FTC) is steamrolling ahead this week with a flurry of settlements and a complaint over deceptive use of the terms “all natural” and “100% natural” in the advertising of sunscreens, shampoos, and other styling/beauty products. However, while there have been vigorous debates in the courts and elsewhere over whether natural ingredients must be non-GMO, and whether certain highly processed natural ingredients such as high fructose corn syrup qualify as “natural,” the FTC’s cases went after some low-hanging, not very natural, fruit. The FTC’s four proposed settlements and new administrative complaint over the use of the phrase “all natural” all involved products that appear to contain clearly synthetic ingredients. (In this regard the FTC’s actions parallel the warning letter FDA issued to Alexis Foods and their frozen potato product.)

The four proposed settlements are with Trans-India Products, Erickson Marketing Group, ABS Consumer Products, and Beyond Coastal.Continue Reading It’s Not Nice to Fool Mother Nature: FTC Takes Aim at “All Natural” Claims

Chobani
Image by theimpulsivebuy [CC BY-SA 2.0] via flickr

The pitter patter of class action footsteps that food companies hear may have gotten a bit quieter, at least for now, based upon a Ninth Circuit decision in Kane v. Chobani this week.  The lawsuit centers on Chobani’s use of the terms “evaporated cane juice” and “only natural ingredients” on its yogurt labels.  According to the plaintiffs, the yogurt included color additives that allegedly did not qualify as “natural.”  The plaintiffs further argued that Chobani’s use of “evaporated cane juice” is simply code for sugar, and Chobani therefor misled them about the healthiness of its products.  In oral arguments Chobani argued that the term “evaporated cane juice” fully complies with federal regulations and that “sugar” would be an inaccurate term because it indicates a refined sugar, while Chobani’s ingredient is not a refined sugar.  The District Court dismissed the case, holding that plaintiffs had failed to plead sufficiently reliance upon the allegedly misleading terms.  Plaintiffs appealed to the Ninth Circuit.
Continue Reading Ninth Circuit Stays Class Action Food Labeling Lawsuit Until the FDA Completes Review