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Leonard L. Gordon

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Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

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Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate the legal risk of campaigns and promotions. Click here to download the entire Tool Kit, and tune in to the Ad Law Tool Kit Show podcast, to hear the authors of this chapter dive deeper into the issue of negative option and continuity marketing in this week’s episode.

The Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs continue to scrutinize negative option and continuity offers. Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay (or discounted price-to-pay) conversions.Continue Reading Negative Option and Continuity Marketing: An Excerpt from the Advertising Law Tool Kit

Since July 1, when California’s “Honest Pricing Law” or “Hidden Fees Statute” became effective, the plaintiffs’ bar has filed more than a dozen complaints alleging violations of the statute. These complaints challenge alleged “junk fees” or “drip pricing” structures, including “service fees” charged by merchants through their websites, “processing fees” charged by third-party platforms, and various forms of credit card surcharges and debit card fees.

Background

California’s Honest Pricing Law requires “Total Price” disclosures and prohibits merchants from misrepresenting the nature and purpose of any charges or fees. Under the statute, “Total Price” means that the advertised prices of goods and services must include all mandatory charges and fees other than either government-imposed taxes or fees or postage or carriage charges “reasonably or actually incurred” to ship the physical good to the consumer.Continue Reading A Variety of Fees and Surcharges Implicated in Early Cases Enforcing California’s Honest Pricing Law

The first episode of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Negative Option Marketing: Part 2” here, or search for it in your favorite podcast player.

Negative option marketing can include pre-notification negative option plans, continuity programs, automatic renewals, and free-to-pay conversions. This marketing strategy continues to invite scrutiny from the Federal Trade Commission (FTC), state attorneys general, and class action plaintiffs.

In this episode, I talk to my co-host on this podcast, Shahin Rothermel, and
Venable partner Ari Rothman about the keys to success in avoiding investigations and liability.Continue Reading Listen to Venable’s Ad Law Tool Kit Show Podcast– “Negative Option Marketing: Part 2”

We are excited to announce Season 2 of Venable’s Ad Law Tool Kit Show, the podcast that helps you and your organization identify and avoid potentially problematic advertising practices.

As they did in Season 1, Shahin O. Rothermel and Leonard L. Gordon will interview their Venable colleagues and examine the increasingly complex regulatory landscape that governs the promotion of goods and services—from Made in USA claims to marketing to children.

Each week, the podcast brings the firm’s popular Advertising Law Tool Kitto life through the lens of current events. Listen to the trailer here. Episode 1, “Negative Option and Continuity Marketing: Part II,” will be available on Tuesday, October 1. In the first episode of the season, Len talks to Shahin and Venable partner Ari Rothman. Join us over the coming weeks to hear:Continue Reading Listen to Season 2 of the Ad Law Tool Kit Show

The Federal Trade Commission (FTC) announced a “sweep” targeting AI-related conduct this week. The cases provide insight into how the agency may approach AI-related issues going forward and illustrate differences among the agency’s commissioners in how to approach issues raised by AI.

Three of the cases involved marketers making false earnings and business opportunity claims promising buyers income from AI-generated ecommerce locations. The FTC’s approach here was straightforward and consistent with how it has approached other money-making claims. Not surprisingly, both cases were voted out 5-0, and the FTC has obtained asset freezes against the companies and some principals.

The other cases were more novel and highlighted some of the challenges raised by AI.Continue Reading As FTC Begins Grappling with AI Issues, “Sweep” Signals Differing Approaches Among Commissioners

Not to be left behind by other regulators, the California Privacy Protection Agency (CPPA) recently issued an enforcement advisory on “dark patterns” in the context of the notice and consent required under the California Consumer Privacy Act (CCPA). As we’ve previously discussed, dark patterns are a subset of “deceptive marketing” and are also known as “deceptive design patterns.” The Federal Trade Commission (FTC) released a report in 2022 outlining the various methods companies employ, such as “making it difficult for consumers to cancel subscriptions or charges, burying key terms or junk fees, and tricking consumers into sharing their data.”

The scrutiny of dark patterns has only intensified since then, and states like California are jumping in. The CCPA defines dark patterns as “[u]ser interfaces or choice architectures that have the substantial effect of subverting or impairing a consumer’s autonomy, decision making, or choice” and says consumer agreement obtained through dark patterns does not constitute consent. The CPPA advises companies seeking to obtain consumer information to use language that is easy to understand and to avoid technical or legal jargon.Continue Reading California Privacy Protection Agency Warns Businesses Against “Dark Patterns” and Urges “Symmetry in Choice”

At this week’s National Advertising Division Annual Conference, FTC Commissioner Melissa Holyoak and FTC Bureau of Consumer Protection Director Samuel Levine presented starkly different perspectives of the agency.

On Monday, Levine provided a familiar list of the FTC’s accomplishments over the past year, including what consumers can expect from the BCP going forward:Continue Reading At NAD Conference Federal Trade Commission’s Holyoak and Levine Share Contrasting Perspectives on the Agency’s Role

During the dog days of August, the Federal Trade Commission (FTC) brought two complaints against auto companies involving alleged deceptive and discriminatory price advertising.

The first complaint was filed and settled in federal court in the District of Arizona in partnership with the Arizona’s attorney general. It alleged Coulter Motor Company advertised prices that were thousands of dollars lower than the actual prices charged to consumers due to surprise charges and fees. Many of these charges and fees were add-ons that consumers allegedly never authorized. The FTC and Arizona also charged Coulter with discriminating against Latino consumers by arranging higher interest rate markups and more expensive add-ons than it did for non-Latino consumers, in violation of both the unfairness prong of Section 5 of the FTC Act and the Equal Credit Opportunity Act (ECOA).Continue Reading FTC Commissioner Claims Agency Creates Favorable Precedent Through Venue Selection

The Federal Trade Commission’s (FTC) rulemaking crusade suffered a serious blow this week, when Judge Ada Brown of the Northern District of Texas set aside the agency’s Final Rule that made most employment-related non-compete agreements unenforceable. The court found that the rule exceeded the FTC’s authority and was arbitrary and capricious. Absent appellate intervention, the decision will prevent the rule from taking effect nationwide.

Although the rule arose from the FTC’s competition mission, the rationale of the decision has larger implications and highlights some of the challenges the FTC faces in its effort to regulate broad swaths of the economy, including as part of its consumer protection efforts.Continue Reading Court Rules FTC’s Non-Compete Rule Is Unenforceable Nationwide

In a surprising ruling, a federal district court in Arizona has held that the Federal Trade Commission (FTC) cannot prosecute claims under the FTC Act against a nonprofit educational institution.

Late last year, the FTC filed a lawsuit against Grand Canyon University (GCU) and its president. Among other claims, the agency alleged GCU made deceptive representations concerning its status as a nonprofit institution and doctoral programs. GCU used to be owned by Grand Canyon Education Inc. (GCE). In 2018, GCU purchased the assets of the university from GCE, making GCU an independent nonprofit with its own Board of Trustees. As part of that transaction, GCE executed a master services agreement with GCU that provided GCE would act as the sole provider for GCU’s operations. GCE now operates as an education services company that provides education services to university partners.Continue Reading Federal Court Narrowly Construes FTC Jurisdiction Over Nonprofit Institutions