Category Archives: Legislation

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Comings and Goings at the FTC and an Interesting Supreme Court Opinion on Asset Freezes

Folks tend to stay at the Federal Trade Commission’s (“FTC”) Bureau of Consumer Protection for a long time.  One notable example is Steve Baker, who just ended a 27-plus-year run as the Director of the Midwest Regional Office in Chicago (“MWRO”).  Prior to that Steve was an attorney advisor to Daniel Oliver.  Under Steve’s leadership, … Continue Reading

CA Agency Proposes Emergency Bisphenol A (BPA) Exposure Warning Regulation, Maximum Allowable Dose Level for BPA

CA Office of Environmental Health Hazard Assessment proposes both an emergency regulation to allow temporary use of a standard point-of-sale warning message for BPA exposures from canned and bottled foods and beverages, and a Proposition 65 Maximum Allowable Dose Level for BPA On March 17, 2016, the California Office of Environmental Health Hazard Assessment (OEHHA) … Continue Reading

Argument That FTC Lacks Ability To Impose Joint And Several Liability Goes Up In Smoke

The Ninth Circuit handed the FTC a big win last week, affirming an $18 million award against Charles Gugliuzza, the former president and CEO of Commerce Planet.  In its opinion, the Ninth Circuit affirmed the broad scope of equitable monetary remedies available to the FTC, especially in the Ninth Circuit.  In doing so, the court … Continue Reading

New York Attorney General’s Case Against Trump University Goes Forward

On Tuesday, March 1, 2016, a panel of judges in the New York Appellate Division, First Department, held that New York Attorney General (AG) Eric Schneiderman’s suit against Donald Trump and the Trump Entrepreneur Initiative LLC (TEI) can move forward.  The court’s decision marks a turning point in the case and resolves ambiguity regarding the … Continue Reading

Crying for Federal Micromanagement — Complying with Conflicting Federal, State and Local Microbead Laws has Personal Care Products Companies in Need of Relief

Given the increasingly national scope of commerce, consumer products companies find it difficult to deal with issues regulated at the state level, particularly if states adopt differing and sometimes conflicting solutions to a common problem.  As a result, industry often turns to the federal government for help in creating a common federal solution.  The FTC’s … Continue Reading

Working Toward a Cohesive Approach to “Made in USA” Claims

On February 1, 2016, the Federal Trade Commission (FTC) filed an action against Chemence, Inc., an Ohio-based manufacturer, advertiser, and distributor of cyanoacrylate glues (often referred to as “superglues”). In its complaint, filed in the United States District Court for the Northern District of Ohio, the FTC alleges that Chemence is deceiving consumers by claiming … Continue Reading

Court Rules Settlement Offers Can’t Kill Class Actions

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification. In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act … Continue Reading

Aloe Vera (Non-Decolorized Whole Leaf Extract) and Goldenseal Root Powder Now Included on California’s Proposition 65 List

  Countless Cosmetic and Dietary Supplement Products Implicated Effective Friday, December 4, the California Office of Environmental Health Hazard Assessment (OEHHA) listed Aloe vera (non-decolorized whole leaf extract) and goldenseal root powder as carcinogens on its list of Chemicals known to the State of California to Cause Cancer or Reproductive Toxicity (Proposition 65 List), pursuant to the … Continue Reading

Website Owners: No Safe Harbor from Copyright Liability for Infringing Content Posted by Third Parties on Your Site If You Are Not Following DMCA Formalities

Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator … Continue Reading

“Judicially Found to Help Prevent False Advertising Litigation”: Fourth Circuit Clarifies Requirements for Pleading a Dietary Supplement False Advertising Claim

On June 19, 2015, the U.S. Court of Appeals for the Fourth Circuit issued its decision in In re GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (No. II), — F.3d –, No. 14-1724, 2015 WL 3798174 (4th Cir. June 19, 2015), handing a significant victory not just to the defendants in that multidistrict … Continue Reading

Security Equipment Manufacturer Secure in Its TCPA Defense: Court Finds Company Not Vicariously Liable for Authorized Dealer’s Alleged TCPA Violations

While plaintiffs’ attorneys seek to streamline the filing of class actions under the Telephone Consumer Protection Act (“TCPA”), a recent court decision serves as a reminder that there are clear limits to a plaintiffs’ ability to recover statutory damages under a theory of vicarious liability. On May 18, 2015, the U.S. District Court for the … Continue Reading

TCPA “Pick Off” Play – Supreme Court to Consider whether a Settlement Offer to Named Plaintiff Moots Class Action

The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification.  Thus, the Supreme Court could … Continue Reading

Supreme Court to Decide whether the TCPA’s, FCRA’s and FDCPA’s Statutory Damages Provisions Are Damaged under an Article III Standing Analysis

Statutes such as the Telephone Consumer Protection Act (“TCPA”), Fair Debt Collection Practices Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”) long have been favorites for class-action lawyers.  Plaintiffs’ attorneys leverage significant statutory damages to generate large judgments or settlements for persons who often experience nothing more than the inconvenience of receiving an unwanted call … Continue Reading

Arbitrate-Shun: Congress’s Proposed Attack on Arbitration Clauses

Last week, Senators Al Franken (D-Minn) and Hank Johnson (D-Ga) revived the Arbitration Fairness Act (“Act”), which would ban arbitration provisions in consumer contracts, as well as employment, antitrust, and civil rights cases, and only allow the parties to agree to arbitration after the dispute arises.  The newfound interest in the Act demonstrates renewed opposition … Continue Reading

Think You Are Exempt from FTC Jurisdiction? Think Again, Judge Says after Throttling AT&T’s Motion to Dismiss FTC Lawsuit

Last week, a federal judge in the Northern District of California denied AT&T’s motion to dismiss the FTC’s lawsuit against the company concerning its advertising and business practices for its mobile wireless data plans. As we noted last fall, the FTC accused AT&T of misleading millions of its customers by marketing “unlimited” data plans, but … Continue Reading

FTC Dishes Out ROSCA Complaint with Focus on Disclosures

The Federal Trade Commission (“FTC” or “the Commission”) has clearly subscribed to enforcing ROSCA recently.  On Tuesday, the FTC filed a complaint against DIRECTV’s negative option program and contract pricing structure under Section 5 of the FTC Act and ROSCA. In the complaint, the FTC alleged that DIRECTV required customers to agree to a mandatory … Continue Reading

Returned to Sender: New Jersey Repeals Zip Code Collection Requirement for Gift Card Sellers

The gift card saga in New Jersey looks like it has finally wrapped up with Governor Chris Christie tying a bow on the proceedings by signing NJ S-2235, eliminating data collection requirements for sellers of qualifying gift cards and gift certificates.  Those who have followed this story may recall that back in 2010 New Jersey … Continue Reading

“Glory Days”: New Jersey Allows Certain Telemarketing Calls to Cell Phones

New Jersey traditionally has had the most onerous state Do Not Call law, which prohibited all telemarketing sales calls to cell phones.  The law did not even allow such calls to be made with the consumer’s consent.  With 90% of Americans owning cell phones and 58.8% of households being either entirely or predominantly wireless today, … Continue Reading

Please don’t, Mister Postman: How to respond when the Postal Service claims that you underpaid postage

You’re sitting in the offices of your on-line business, going through your in-box.  Your mail includes a letter from the U.S. Postal Service.  The letter claims that you owe a six- or seven-figure sum—more than your profits last year—because you didn’t pay enough postage on parcels of merchandise that you mailed to consumers one, two … Continue Reading

FTC: Unlimited Means Unlimited

Defining unlimited is a metaphysical exercise worthy of a Cosmos or at least a Big Bang episode.  We have blogged before about the meaning of “lifetime supply” and “free.”  But the FTC is very literal when it comes to defining the bounds of limitless and concludes that, well, unlimited means unlimited. The FTC has just … Continue Reading

Keeping Watch Over the FTC’s Consumer Sentinel: How Businesses Can Use FOIA to Look Inside the FTC’s Hidden Complaint Database

Consumer complaints are a fact of life for even the most scrupulous businesses.  When companies deal with consumers in a uniform yet large-scale manner, occasional lapses that generate ill-will are inevitable.  Upset customers can lead to lost sales and diminished reputation, but they can also affect more than just the bottom line.  Over the past … Continue Reading

California’s Do Not Track Disclosure Bill

As of January 1, 2014, California law requires operators of websites and online services to publicly disclose how they respond to “do not track” (dnt) signals, though the exact requirements vary depending on whether an entity is a first party (e.g., web publisher) or third party (e.g., ad network). The new law will not require … Continue Reading
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