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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.

Through a new interpretive rule announced this week, the Consumer Financial Protection Bureau (CFPB) has declared that digital marketing providers can be held liable under the Consumer Financial Protection Act (CFPA) if they engage in or substantially assist unfair, deceptive or abusive practices in advertising financial products on behalf of banks and nonbanks covered by the CFPA.

While service providers to “covered persons” under the CFPA are already subject to the Act, Congress carved out an exception for service providers offering or providing to covered persons “time or space for an advertisement for a consumer financial product or service through print, newspaper, or electronic media.” The CFPB’s new rule limits the applicability of that exemption to digital marketing providers such that the “electronic media” prong is very nearly void.

Continue Reading CFPB Warning to Consumer Financial Services Digital Marketing Providers

We recently discussed the various ways in which the Federal Trade Commission is focusing on worker protections in the gig economy. Though we didn’t have a crystal ball to foresee it, the FTC announced that it is furthering those efforts through a new partnership with the National Labor Relations Board. On July 19, 2022, FTC Chair Lina Khan and NLRB General Counsel Jennifer Abruzzo signed a Memorandum of Understanding on behalf of their respective agencies to “promote interagency collaboration,” to enhance enforcement efforts, and to “better root out practices that harm workers.”

The NLRB is an independent federal agency that enforces federal labor regulations—namely, regulations prohibiting unfair labor practices—through investigations, administrative proceedings, and lawsuits. The NLRB also engages in rulemaking and conducts elections concerning the formation or decertification of unions. FTC Chair Khan stated that the agencies’ agreement will advance their “shared mission to ensure that unlawful business practices aren’t depriving workers of the pay, benefits, conditions, and dignity that they deserve.”

Continue Reading FTC Joins Forces with NLRB to Further Its Gig Economy and Worker Protection Agenda

The Ad Law Symposium is back in person!

September 15, 2022

7:30 – 8:00 a.m. – Registration and Breakfast
8:00 a.m. – 5:15 p.m. – Program and Lunch
5:15 – 7:00 p.m. – Networking Reception

After an extended hiatus, we’re thrilled to once again host Venable’s Advertising Law Symposium live and in person at our

This week, a New York district court, in FTC v. Quincy Bioscience Holding Co., granted an individual defendant’s partial motion for summary judgment, dismissing claims brought by the New York Attorney General (NYAG) for lack of personal jurisdiction over him. The dismissal shows a procedural challenge to the FTC’s effort to piggyback on the remedial authority of state AGs to backfill the hole in its remedial powers after the Supreme Court’s decision in AMG Capital Management v. FTC.

A quick refresher: In 2017, the FTC and the NYAG filed a complaint against several defendant companies and two individuals in their capacity as officers of those companies for failing to have proper substantiation to claim that a cognitive supplement improved memory. The FTC relied on Section 13(b) of the FTC Act to seek permanent injunctive relief and equitable monetary relief. On the other hand, the NYAG relied on certain state consumer protection statutes relating to repeated fraudulent or illegal conduct, deceptive business practices, or false advertising. These New York statutes allow for appropriate equitable relief that may include, among other things, restitution and disgorgement of ill-gotten monies. We have previously blogged on this case here and here. After AMG, the relief sought by the NYAG became significantly more important.

Continue Reading District Court to New York Attorney General: “No Personal Jurisdiction Piggybacking”

The FTC is off to the races with another proposed rulemaking. On June 23, the FTC, by a 4-1 vote, issued a notice of proposed rulemaking (NPR) to combat what it perceives as “junk fees” and “bait-and-switch advertising tactics” in the auto sales industry. Congress gave the FTC the authority to write rules governing the retail sale of automobiles, using APA rulemaking and not the more cumbersome Magnuson Moss rulemaking that the FTC normally must follow in consumer protection rulemakings. This authority is no small matter, as on June 30, the Supreme Court issued its decision in West Virginia v. EPA, which will make rulemakings by the FTC and other government agencies more challenging.

The FTC’s proposed rule would prohibit certain misrepresentations, require certain disclosures, prohibit certain “add-ons,” and require more thorough recordkeeping. First, among a whole host of potential misrepresentations, the proposed rule includes prohibiting misrepresenting regarding vehicle costs; terms of purchasing, financing, or leasing; and the availability of vehicles at an advertised price.

Continue Reading FTC Starts the Engine on Car Sales Fees and Advertising Rulemaking, but Other Rulemaking Faces Major Questions

Last week, the FTC brought and settled enforcement actions against two manufacturing companies for allegedly limiting customers’ right to repair purchased products under unlawful warranty terms. The FTC alleged that the two companies, Harley-Davidson Motor Company Group, LLC (a motorcycle manufacturer) and MWE Investments, LLC (a Westinghouse outdoor generator maker), acted illegally when using voidable warranties that required customers to use manufacturer-supplied parts and service instead of allowing customers to use independent dealers to either supply parts or perform repairs. In the settlements, the FTC ordered both companies to remove these warranty terms, admit to customers what they did, and ensure fair competition between dealers and independent third parties providing repair services and parts.

According to the FTC’s complaints against Harley-Davidson and MWE Investments, the companies’ unlawful warranty terms violated the Magnuson-Moss Warranty Act for conditioning warranty coverage on using the companies’ respective parts or services without either seeking the FTC’s waiver or providing the parts or services free of charge under the warranty. The FTC also alleged the manufacturers acted deceptively in failing to disclose these conditions properly. The FTC alleged that Harley-Davidson also violated the FTC’s Rule Governing Disclosure of Written Consumer Warranty Terms and Conditions (“Disclosure Rule”) when it failed to provide a single document containing the warranty terms, so customers would need to contact authorized dealers to understand the full terms of their warranties.

Continue Reading Repair Your Warranty Terms: FTC Takes Action Against Unlawful Repair Restrictions

Webinar | June 28, 2022 | 2:30 – 3:00 p.m. ET | REGISTER

Venable partners Len Gordon and Alexandra Megaris will present “What You Need to Know About FTC’s Proposed Changes to Its Endorsement Guides.” The Endorsement Guides, first issued in 1980 and last amended in 2009, reflect the Commission’s interpretation of how the FTC

The Federal Trade Commission has requested public input about potential updates to its “Dot.Com Disclosures.” The guidance document was last updated nearly a decade ago and has not addressed much of the new technology that has emerged and the evolution in online advertising. As a result, the agency’s call for comments will allow those interested to provide feedback and suggestions to modernize the guides. Comments are due by August 2, 2022.

The FTC has asked for industry stakeholders’ input on many issues, including:

Continue Reading FTC Asks Online Advertisers to Weigh in on Dark Patterns, Calls for Comment on Its .Com Disclosures Guidance

Last week, the United States Department of Justice, acting on behalf of the Federal Trade Commission, took action against Twitter, Inc. for allegedly using private account security data to sell targeted advertisements without informing the platform’s users. To settle the matter, Twitter agreed to a stipulated order requiring the social media giant to pay $150 million in civil penalties, which the court entered a day after the complaint was filed.

Understanding the recent settlement warrants a quick history lesson on Twitter’s dealings with the FTC. In 2010, the FTC filed an administrative complaint against Twitter, asserting the company misrepresented the security measures it had in place to protect private user information from unauthorized access and to honor users’ privacy choices. This ultimately led to a 2011 FTC Order that barred Twitter from misrepresenting the extent to which it “maintains and protects security, privacy, confidentiality, or integrity of any nonpublic consumer information.”

Continue Reading Twitter Will Pay $150 Million to Settle Charges That It Misrepresented Its Privacy and Security Practices

The Federal Trade Commission’s May 2022 open meeting, Alvaro Bedoya’s first since being sworn in as the agency’s fifth commissioner on May 16, considered a request for public comment on proposed amendments to its Guides Concerning the Use of Endorsements and Testimonials in Advertising. After a staff presentation on commissioners’ proposed updates and statements, the agency unanimously approved the request for public comment.

The Endorsement Guides, first issued in 1980 and last amended in 2009, reflect the commission’s interpretation of how the FTC Act applies to endorsements and testimonials in advertising. Proposed updates to the guides include the following:

Continue Reading FTC Approves Request for Public Comment on Updates to Endorsements and Testimonials Guides