As the rest of us prepare for the Super Bowl by buying avocados to make guacamole, installing new big-screen TVs, and donning Ram/Bengal-themed face paint, select corners of corporate America are preparing for the biggest advertising day of the year.

In 2021, companies spent approximately $485 million on ad slots during the big game, and the average cost of a 30-second commercial slot was about $5.6 million. With such high stakes, plus the intensive “Standards and Practices” review employed by the TV networks, one would assume that anything that makes the cut is above reproach. (The review board won’t even let advertisers use “Super Bowl” because it’s trademarked, which is why you often hear “the Big Game” in ads.)

However, the following examples of legal challenges to your favorite Super Bowl commercials demonstrate that the world of advertising law can be tricky to navigate, and companies that advertise simply cannot mitigate their litigation risk to zero.

Continue Reading Defending Against the Blitz: Examining the Legal Issues Surrounding Super Bowl Ads

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

I’ve never really understood the saying “You can’t have your cake and eat it, too,” but I was reminded of it when I read U.S. District Judge Amy Totenberg’s opinion rejecting the FTC’s efforts to stay or voluntarily dismiss the federal court action brought against Fleetcor and its CEO.

Some background: The FTC sued Fleetcor in December 2019 in federal court in Georgia, alleging the fleet leasing company failed to adequately disclose the fees it charged and made deceptive claims about the money that businesses could save by using its services The case was litigated furiously, but then the Supreme Court gutted the FTC’s claim for relief in AMG. When a quick congressional fix did not occur, the FTC engaged in an “inventive” litigation strategy. The agency filed an administrative (Part III) action before its ALJ and asked the district court to stay or dismiss without prejudice the district court proceeding. The FTC indicated it intended to return to the district court after the conclusion of the administrative proceeding to recover redress under Section 19(a)(2). The defendants opposed the motion.

On February 7, 2022, Judge Totenberg denied the FTC’s motion. Summary judgment and Daubert motions had been fully briefed before the FTC filed its administrate complaint and sought a stay. The FTC urged the stay, arguing that the administrative proceeding could essentially pick up where district court litigation left off and be completed quickly.

Continue Reading Judge Tells FTC That It Can’t Have Its Part III and Eat It, Too

The explosion in Buy-Now-Pay-Later (BNPL) has caught the eyes of lawmakers and regulators, who are taking a closer look at this booming industry.

BNPL payment offers allow consumers to purchase goods or services now and pay for them over time, often through a short series of installments (for example, four payments spaced two weeks apart). Industry researchers have found that Gen Z consumers increased their use of BNPL products from 6% in 2019 to 36% in 2021. However, with this growth, lawmakers and regulators have voiced concerns about BNPL, including that consumers may easily spend more than they can afford and rack up multiple BNPL purchases with varying payment schedules and payment terms.

Read our 360 Degree Analysis of Buy-Now-Pay-Pater Products

The list of consumer protection concerns raised by lawmakers and regulators is long. Consumers may face late fees, fees for failed payments, payment rescheduling fees, early payoff fees, account reactivation fees, or other fees charged by BNPL providers that may not be readily apparent.

Continue Reading The Buy-Now-Pay-Later Boom Gets Consumer Protection Attention

We are pleased to share with you the tenth edition of Venable’s popular Advertising Law Tool Kit. This annual resource compiles a broad spectrum of marketing-related topics, background information, and checklists into an easy-to-access guide, authored by some of the most experienced attorneys in the industry. Download this year’s Tool Kit or bookmark the link to our e-book for quick access to these industry best practices.

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Have specific questions? Don’t hesitate to contact any of our Tool Kit or blog authors to arrange a conversation or to suggest a topic for subsequent editions of the Advertising Law Tool Kit.

Last Friday, the Ninth Circuit upheld California’s 2018 net neutrality law in the face of arguments that the law was preempted by FCC action. The court held that the FCC can’t preempt states since it gave up its own regulatory authority over broadband in its 2017 repeal of the federal net neutrality rules.

According to the decision, key is the FCC reclassification of broadband internet service as an information service: “Only the invocation of federal regulatory authority can preempt state regulatory authority…As the D.C. Circuit held in Mozilla, by classifying broadband internet services as information services, the FCC no longer has the authority to regulate in the same manner that it had when these services were classified as telecommunications services.”

By giving up its authority to preempt, it no longer matters if the state law conflicts with the federal policy objectives underlying the reclassification decision. By vacating the regulatory field, the FCC gave the states carte blanche to step in and impose their own net neutrality rules.

The opinion bolsters other states (New York and Vermont) that are defending their own net neutrality laws against active claims of federal preemption.

With this decision, and the impending nomination of net neutrality advocate Gigi Sohn to be the FCC’s fifth commissioner, the prospects for a fulsome and active return of net neutrality regulation are certainly increasing.

It might be hard for some to imagine, but the Federal Trade Commission (FTC) is feeling groovy. This month, the agency released two guidance documents that track best practices to prevent consumers from being misled when marketers solicit and pay for online reviews and when review platforms feature online customer reviews.

The new documents are like two sides of an old-school vinyl album. Side A is for online retailers and marketers, while Side B is for review platforms (i.e., consumer review websites). The lyrics might be slightly different, but the tunes make for a pretty good mash-up.

Continue Reading Federal Trade Commission Releases Online Customer Review Guidance

If you had asked us last week, we would have predicted that the Supreme Court’s momentous AMG Capital Management, LLC v. FTC decision last year, in which the Court struck down the Federal Trade Commission’s nearly 50-year practice of seeking equitable monetary relief under Section 13b of the FTC Act, would be the most significant decision about FTC jurisprudence we would see from the Supreme Court for a while.

However, in a surprising move, the Supreme Court recently granted certiorari in Axon Enterprises Inc. v. FTC to address whether Congress intended to strip federal district courts of jurisdiction to hear challenges to the constitutionality of the FTC’s structure, procedures, and very existence. Importantly, however, the Court declined to directly address the petitioner’s challenge to the constitutionality of the FTC. Still, the Court’s decision could significantly impact how future targets of FTC enforcement investigations and actions will challenge the FTC’s constitutional limits.

Continue Reading Federal Trade Commission Goes to the Supreme Court Again, This Time in a Constitutional Challenge

A class action lawsuit filed against Kim Kardashian, Floyd Mayweather, and former professional basketball player Paul Pierce earlier this month underscores the need for celebrity endorsers to take care when they approach any endorsement activity in the cryptocurrency space.

The lawsuit alleges that the celebrities collaborated with Ethereum Max, a company offering ERC-20 cryptocurrency tokens (EMAX Tokens), and its executives to engage in a “pump-and-dump” scheme promoting investments in the company’s tokens. The complaint alleges that the three celebrity influencers misleadingly promoted EMAX Tokens to potential investors, touting the ability of investors to make significant returns due to the favorable “tokenomics” of the EMAX Tokens, when in fact the tokens were practically worthless. The class action alleges violations of California’s Unfair Competition Law, California’s Consumers Legal Remedies Act, aiding and abetting, and unjust enrichment/restitution.

According to the complaint, EthereumMax’s entire business model relies on marketing and promotional activities, and the celebrity promoters received EMAX Tokens and/or other compensation in return for promoting the tokens. (EthereumMax “has no connection” to Ether, the second-largest cryptocurrency, the lawsuit said, adding that its branding appears to be an effort to mislead investors into believing the token is part of the Ethereum network.) The promotional activities at issue included, among other things, making social media posts, wearing EMAX-branded shirts, and promoting the cryptocurrency at a conference.

Continue Reading “Are You Guys Into Crypto????”: Celebrities Promoting Cryptocurrencies Become Class Action Targets

Last week, the Federal Trade Commission (FTC) announced that it agreed to settle claims against Dun & Bradstreet (D&B), a business credit reporting agency engaged in deceptive and unfair practices with small and mid-sized business customers.

The FTC’s complaint primarily stemmed from businesses’ claims that error-ridden reports negatively affected business opportunities and that D&B’s offered credit-monitoring products did not easily improve credits scores and ratings as suggested. According to the order, D&B will have to adjust its operational practices in favor of its business customers.

Under FTC Chair Lina M. Kahn, the agency has been utilizing tools to affect broad swaths of the economy and certain industries. The FTC is using a traditional administrative cease and desist order to resolve small businesses’ credit reporting concerns – a continuation of the agency’s broad definition of “consumer” to challenge conduct directed at small businesses. The same concerns at issue in this case involving small business mirror those in many consumer cases, including credit reporting, deceptive telemarketing, and inadequately disclosed renewal terms.

Continue Reading FTC to Dun & Bradstreet: Change Credit Reporting Operations to Benefit Business Customers