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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 State Privacy Laws in this week’s episode.

State privacy laws continue to evolve rapidly, challenging businesses to keep pace. In 2023, new omnibus privacy laws went into effect in California, Colorado, Connecticut, Utah, and Virginia, while eight additional states enacted similar laws. Of the eight states with newly enacted laws, four have laws that will come into effect in 2024—Florida, Montana, Oregon, and Texas. Therefore, businesses should be prepared to comply with up to nine comprehensive state privacy laws in 2024, with more laws slated to come into force in 2025 and 2026.Continue Reading State Privacy Laws: An Excerpt from the Advertising Law Tool Kit

It’s that time of year again! The 12th edition of Venable’s popular Advertising Law Tool Kit is now available for download. 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. New and updated sections include…

The Federal Communications Commission (FCC) adopted a revised rule to restrict forms of lead generation involving texts and calls to consumers on December 13, 2023. The revised rule implementing the Telephone Consumer Protection Act (TCPA) will require one-to-one consent for certain types of regulated calls and texts—so-called robotexts and robocalls.

The new rule will take effect 12 months after publication in the Federal Register, or 30 days after announcement in the Federal Register of the Paperwork Reduction Act approval of the restrictions on information collection prescribed by this new rule, whichever is later, around January 2025.

The rule requires that, to obtain “prior express written consent” under the TCPA, consumers must give their consent to receive calls and texts from the specific sellers they wish to contact them (i.e., “one-to-one consent”). According to the FCC, this requirement ensures that consumers consent only to contact by sellers they wish to hear from.Continue Reading FCC Adopts Rule Closing the Lead Generator Loophole

On June 16, 2023, the Federal Deposit Insurance Corporation (FDIC) released an update to its Supervisory Guidance on Multiple Re-Presentment NSF Fees (FIL-40-2022) (the “Guidance”), to provide additional guidance for supervised institutions on the consumer compliance risks associated with assessing multiple non-sufficient funds (NSF) fees for the re-presentment of unpaid transactions. This alert discusses the potential risks the FDIC identified and outlines the risk mitigation practices that supervised institutions can implement to mitigate risks when processing multiple re-presentment NSF fees.

Although the Guidance’s applicability is limited to FDIC supervised institutions, the information provided on potential risks and mitigation practices should be taken into consideration by any financial institutions or merchants that assess multiple re-presentment NSF fees in connection with billing consumers.Continue Reading FDIC Releases Revised Supervisory Guidance on Multiple Re-Presentment NSF Fees

Courts continue to grapple with issues surrounding Florida’s Telephone Solicitation Act, including what types of claims are sufficient to allege a concrete injury in fact to establish standing under Article III.

In December, the saga continued, with a federal court in Florida finding that the plaintiff did not adequately allege injury despite receiving five unsolicited text messages from the defendant between November 2020 and July 2021. In Muccio v. Global Motivation, Inc., the plaintiff filed a five-count class action complaint alleging violations of the Florida Telephone Solicitation Act (FTSA) and the Telephone Consumer Protection Act (TCPA). The defendant filed a motion to dismiss, arguing that the plaintiff failed to allege that she suffered an “injury in fact” sufficient to give rise to Article III standing.

The court agreed with the defendant, citing the framework set forth by the Eleventh Circuit in Salcedo v. Hanna, which found that the receipt of a single unsolicited text message does not give rise to Article III standing in a TCPA class action. Applying Salcedo, the court found that there were no allegations of “financial loss or other pecuniary harm,” nor did plaintiff allege he was unable to use his phone for other functions because of the unwanted messages, or that his cell phone was searched, disposed of, or seized for any length of time.Continue Reading Florida Court Dismisses Telemarketing Claims for Failure to Plead Injury; Plaintiff Appeals to Eleventh Circuit

Supply chain disruptions and accompanying inflation for raw materials have challenged many businesses. A recent case involving paint retailer Sherwin-Williams shows how not to deal with these challenges. In a putative class action, plaintiffs accused Sherwin-Williams of surreptitiously adding a hidden “Supply Chain Charge” to every sales transaction. On October 24, the U.S. District Court for the Northern District of New York said the claims may proceed.

The plaintiffs allege they suffered economic injury as a result of a “deceptive bait-and-switch scheme” perpetrated by Sherwin-Williams. They asserted claims of deceptive acts or practices under New York General Business Law § 349, breach of contract, and unjust enrichment. On Sherwin-Williams’ motion to dismiss, the Northern District of New York tossed the unjust enrichment claim, but held that the Section 349 claim and breach of contract claim were plausibly alleged.Continue Reading Supply Chain Surcharges? Plaintiffs Say You Better Not Conceal Them

We are pleased to share with you the ninth 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…

Venable’s dynamic Entertainment and Media Group is pleased to launch Close-Ups, a blog aimed at providing insider commentary on legal and business issues, trends, and headlines in Hollywood and beyond. As a reader of our All About Advertising Law blog, you recognize the value of timely legal analysis and commentary on the issues surrounding…

Do you know what your arbitration provisions say about arbitrability? If not, now is a good time to review them in light of the U.S. Supreme Court’s unanimous decision this week in Henry Schein, Inc. v. Archer & White Sales, Inc. holding that, where parties have entered into an arbitration agreement, and that agreement clearly delegates to an arbitrator the question of which disputes must be arbitrated (i.e., questions of “arbitrability”), courts must enforce those terms and permit the arbitrator – not the judge – to determine whether the specific dispute in question will proceed in arbitration or in court.

The case was filed in Texas federal court by Archer and White (“Archer”) after its relationship with Henry Schein, Inc. (“Schein”) soured. Archer, a dental equipment distributor, entered into a contract with Pelton and Crane (“Pelton”) to distribute dental equipment manufactured by Pelton. Archer thereafter sued Pelton’s successor-in-interest and Schein alleging violations of federal and state antitrust laws, seeking both monetary damages and injunctive relief.Continue Reading SCOTUS Instructs Courts to Enforce Parties’ Agreements with Respect to Arbitrability