Last week, New York Attorney General Letitia James announced that online travel agency Fareportal Inc., which operates several travel-related websites and mobile platforms, including CheapOair.com and OneTravel.com, will pay $2.6 million to New York for misleading consumers with deceptive marketing tactics.

“Consumers wanted to land affordable tickets through Fareportal’s platforms, but were met with lies instead,” James said in a statement. “Fareportal used deeply deceptive tactics to trick millions of consumers into booking airline tickets and hotel rooms.”

The investigation into Fareportal revealed that, since at least 2017, the company created false urgency around the availability of airline tickets and hotel rooms to pressure consumers into making purchases on its platforms. The AG challenged these marketing tactics as “dark patterns,” referring to alleged misleading design features and methods used to manipulate consumers into buying goods and services. As we have covered previously, alleged “dark patterns” have become a priority in rulemaking and enforcement.Continue Reading New York Attorney General Secures $2.6 Million from Fareportal for Deceptive Marketing Tactics

We’ve previously detailed the problem with the Florida Telephone Solicitation Act (FTSA), which, on its face, expansively prohibits the use of “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without the recipient’s prior express written consent. Fla. Stat. § 501.059(8)(a) (emphasis added).

Thus, arguably, even if a live human manually presses each digit in a ten-digit telephone number to place a telemarketing call or to send a marketing text message, if a system automatically selected those numbers for the representative to dial, it might be considered “autodialing” under the FTSA. (We have our doubts but, then again, no one refers to us as “Judges Blynn and Rinehart” . . . yet(?).) By comparison, the federal Telephone Consumer Protection Act’s (TCPA) definition is more restrictive and industry-favorable, requiring that telephone numbers be randomly or sequentially generated and called without human involvement. Dialing from a stored list of telephone numbers is not autodialing under the TCPA, as long as those numbers themselves are not pulled out of thin air.Continue Reading “Indefinitely Postponed and Withdrawn From Consideration”: Florida Telephone Solicitation Act Amendments Wait for Another Day

There have been scores of Florida Telephone Solicitation Act (FTSA) class actions filed since July 1, 2021, when the statute was amended to provide for a private right of action; the Florida legislature thinks that number may be more than 100. As might be expected, there are a number of motions to dismiss pending in FTSA litigations. Many make arguments regarding the constitutionality of the statute and/or that the law is preempted by its federal counterpart (the Telephone Consumer Protection Act (TCPA)). A couple of defendants also have argued lack of standing, i.e., that the receipt of one or two allegedly unsolicited, autodialed text messages does not constitute a sufficiently concrete injury to confer standing on the plaintiff.
Continue Reading First Florida Telephone Solicitation Act Dismissal Decision Issues, and It Has Virtually Nothing to Do with the Statute

For years, the plaintiffs’ bar has been filing Telephone Consumer Protection Act (TCPA) class actions alleging the receipt of unsolicited, autodialed text messages. But the TCPA’s autodialer prohibition explicitly refers to “calls,” not text messages, whereas other provisions of the statute, namely the Truth in Caller ID Act, expressly extend to both “text messaging service[s].” In fact, that section of the TCPA even includes a definition for “text message.”

Nonetheless, based on dicta from a decade-old Supreme Court decision addressing whether federal courts have concurrent jurisdiction with state courts over TCPA claims, Mims v. Arrow Financial Services, LLC, the plaintiffs’ bar regularly includes in its autodialer complaints an allegation that text messages are calls for purposes of applying and construing the TCPA. During the December 2020 oral argument before the Supreme Court in Facebook, Inc. v. Duguid, Justice Clarence Thomas questioned “why a text message is considered a call under the TCPA” in the first place. But the issue was not before the Supreme Court; nor did the Court address it in its decision.

So, text messages still are generally considered to be “calls” under the TCPA subject to its autodialer prohibition. But, remarkably, just two weeks ago in Alvarez v. Sunshine Life & Health Advisors LLC, a putative Florida Telephone Solicitation Act (FTSA) autodialer class action arising out of the plaintiff’s receipt of a single text message (maybe two, depending on how the complaint is construed), the plaintiff’s counsel the position that the TCPA and FTSA are different in that the FTSA covers text messaging, whereas the TCPA does not.Continue Reading Did a Prolific TCPA Plaintiffs’ Attorney Just Argue That the Statute Does Not Regulate Text Messaging? The Hearing Transcript Says Yes

Musical Theater was one of my favorite elective courses in high school, probably because a fair amount of the curriculum involved watching musicals on television. (Kids today will never feel the absolute exuberation from seeing a VCR cart being rolled through the classroom door.) One of the catchiest tunes I remember was the main title track from Rodgers & Hammerstein’s classic, Oklahoma!

A recent bill introduced in the Oklahoma state legislature has me humming that tune, though I’m not so sure the “wavin’ wheat,” which “can sure smell sweet when the wind comes right behind the rain” will be able to mask the stench rising from the influx of telemarketing litigation that surely will be filed in the state, should the bill as proposed actually become law.

Oklahoma House Bill 3168 (which is available here), as currently drafted, prohibits “a telephonic sales call to be made if such call involves an automated system for the selection or dialing of telephone numbers . . . without the prior express written consent of the called party.” (Emphasis added.) The disjunctive “selection or dialing” term is the same as the one employed in the current version of the Florida Telephone Solicitation Act (FTSA), which we’ve blogged about previously here.Continue Reading Oklahoma Proposed Autodialer Legislation Would Cause Litigation to Come Sweepin’ Down the Plain

The Florida legislature gaveth (to the telemarketing plaintiffs’ bar) in July 2021 when it amended the Florida Telephone Solicitation Act (FTSA). That same state legislature might now taketh away and cure some of the class action abuses its amendments have created.

Last month, in the context of a deep dive into the legislative history of the FTSA, we previewed a major source of ambiguity in the statute that was exacerbated in July 2021. That was when Florida amended the statute to include a private right of action and uncapped statutory damages between $500 and $1,500 for each telemarketing call or text message that violates the FTSA’s autodialer provision.

Specifically, the FTSA prohibits placing telemarketing calls or sending marketing text messages with “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message when the connection is completed” without first obtaining the recipient’s “prior express written consent.” Fla. Stat. § 501.059(8)(a).Continue Reading Florida Legislature to the Rescue? House Bill Proposed to Fix the Florida Telephone Solicitation Act’s Autodialer Provision

As we wind down the year and before I set my out of office for a much needed respite, I thought that I’d give the telemarketing litigation community a bit of a holiday gift—some of the legislative history for the Florida Telephone Solicitation Act (“FTSA”), Fla. Stat. § 501.059, and, specifically, the Florida Legislature’s own views of the statute’s applicability to interstate versus intrastate communications. That matters a lot in defending FTSA class actions. But, first, let me air some of my grievances with the FTSA.

Despite being in effect since 1990, the FTSA has only recently gained notoriety due to an amendment in July 2021, which added a private right of action to the statute, allowing consumers to sue for between $500 and $1,500 per telemarketing call or marketing text message that violates the statute. (That sure sounds a lot like the federal Telephone Consumer Protection Act’s (“TCPA”) statutory damages scheme, no?) There is no cap on damages as there is with other Florida statutes, such as the state’s debt collection act, and there are remarkably few FTSA decisions out there.Continue Reading A Festivus Miracle! A Deep Dive into the Legislative History Regarding Florida Telephone Solicitation Act’s Applicability to Interstate Communications

The Federal Trade Commission (FTC) recently issued Notices of Penalty Offenses regarding for-profit education, endorsements and testimonials, and money-making opportunities. Prior to this year, the FTC had used its Penalty Offense authority only once in this century. So why the sudden rebirth? In this webinar, Venable attorneys examined the FTC’s authority in this area, the substance of the notices, and their broad implications.

What Is a Penalty Offense?

Under the Penalty Offense authority, the FTC can seek civil penalties against a company or individual if it proves that they had actual knowledge that the FTC had already issued a written decision (after an administrative trial) against another entity that the same conduct was unfair or deceptive in violation of Section 5(m)(1)(b) of the FTC Act. Section 5 enables the FTC to hold the person, partnership, or corporation liable for a civil penalty of up to $43,792 per violation.

In the last few weeks, the FTC has sent out three different notices. The purpose of these notices was to allow the FTC to argue that the recipients had actual knowledge that the FTC had previously ruled certain acts or practices to be unfair or deceptive. Each of the letters specifies that the FTC is not singling out recipients or suggesting recipients are violating the law, which signifies that this is part of an effort to effect broad changes in industry behavior.Continue Reading FTC’s Notice of Penalty Offenses: What Do They Mean for You?

Martech (marketing technology) refers to any technology or tool that helps optimize or identify marketing efforts. Marketers rely on these tools to automate or streamline processes, collect and analyze data, and help engage with customers. The full suite of these interconnected tools is known as the martech stack.

Last year, the number of martech suppliers grew to 8,000 (and counting). To help clients make smart choices, Venable attorney A.J. Zottola has examined the rise of martech and offered guidance on procuring tools and negotiating contracts with vendors.

Martech should align with goals

When considering the use of martech technology, focus on the marketing objective. Martech tools fall into several categories, depending on the particular objectives they are used for:

  • Management tools
  • Commerce and sales tools
  • Content and experience tools
  • Advertising and promotional tools
  • Data tools
  • Social and relationship tools

Continue Reading Martech Procurement Tips and Contract Guidance

With Halloween just days away, it is perhaps fitting that the FTC has issued a new enforcement policy statement warning companies not to employ dark patterns to trick customers into a subscription plan. As we covered previously, the FTC has identified dark patterns—or website design features used to deceive consumers—as a priority for both rulemaking and enforcement actions. The timing of the announcement is a bit curious as the FTC is in the middle of a rule making on negative option marketing. More below from Commissioner Wilson on that.

The enforcement policy statement in many ways reflects the requirements of the Restore Online Shoppers Confidence Act (ROSCA) and established FTC precedent regarding negative option marketing. The FTC has been active against companies who hide their subscription programs behind links, have made customers undergo several attempts to cancel their subscription, or companies who failed to disclose that the benefits of their subscription did not exist anymore.Continue Reading FTC Issues Dark Forecast for Dark Patterns in Subscription Auto-Renewal