Posts tagged Marketing and Advertising Law.

Olshan Advertising Partner Andrew Lustigman was quoted by Digiday, a New York-based online publication that covers the digital marketing industry, on legalities involved in marketing junk food to kids through McDonald’s new VR Happy Goggles. 

Andrew Lustigman to speak at IZEAFest 2015 on October 23, 2015.

As typically the consumer facing entity, the manufacturer has potential exposure from regulators and consumers alike for disseminating potentially unsupported claims.

Sprint also agrees to preventative measures.

FCC Creates Exception To TCPA’s Prior Express Consent Requirement.

Court: the question of consent is often a fact-intensive inquiry and may vary with the circumstances of the parties.

California court allows texting class action to proceed vs. search engine.

In Gragg v. Orange Cab Company, decided on February 7, 2014 in the Western District of Washington, a class-action defendant accused of sending mass texting messages without prior consent was granted partial summary judgment on all claims under the Telephone Consumer Protection Act (TCPA).

In Shelton v., decided on November 4, 2013, the Third Circuit Court of Appeals held that a one-year expiration date for a restaurant gift certificate violated a New Jersey statute with a cumbersome name, the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA).

The National Advertising Division, a specialized dispute resolution forum administered by the Council of Better Business Bureaus, recently clarified the standard for determining whether statements are mere "puffery," rather than unsupported superiority messages.

On September 17, 2013, from 12:30-1:30pm Eastern time, Olshan will present the webinar Important Changes To The Telephone Consumer Protection Act (TCPA): What You and Your Client Need To Know.

Andrew Lustigman will speak at the 35th BAA Annual Marketing Law Conference in Chicago, IL on November 18-20, 2013.

Andrew Lustigman will speak at the second annual HitPath Masters Conference in New Orleans, LA on September 29 - October 1, 2013.

Proposed legislation recently introduced in the New York Senate would impose new limitations on discount buying clubs.

Georgia has recently passed new legislation aimed at regulating the use of automatic renewal provisions in service contracts.

On April 26, 2013 Vermont enacted a law that now allows a contest sponsor to require an entrant to pay an entry fee or purchase a product to enter a skill contest or other promotion where the winner is not determined based on chance.

The National Advertising Division ("NAD") recently recommended that Toys "R" Us modify or discontinue a price-matching claim advertised.

A number of states are currently considering new laws designed to prohibit companies from imposing a surcharge on consumers who elect to pay for their goods or services by credit card.

The Washington AG alleged rigged its auctions for electronics and other goods. Bidders thought they were competing with other human beings. But in reality they were often battling or placing bets against "bots" - people that did not exist.

By William MacDonald*

Following our earlier post on this issue, the Federal Trade Commission (FTC) last Monday issued the long-awaited revised "Guides for the Use of Environmental Marketing Claims" (a/k/a the "Green Guides").

Skechers agreed to pay $40 million to the Federal Trade Commission to settle charges that the company deceptively made unsupported claims that its "toning shoes" helped consumers lose weight and strengthen and tone their buttocks, legs and abdominal muscles.

A group that sells discounted medical services won a substantial legal victory in the District of New Jersey, gaining a full dismissal of a $100 million telemarketing lawsuit filed by Verizon and OnStar, the car phone service.

A recent case provides three valuable lessons to advertisers involved in proceedings before the National Advertising Division of the Better Business Bureau (commonly referred to as the NAD).

In response to industry confusion on how promoters of mobile applications should deal with privacy issues, the Mobile Marketing Association recently released its Final Privacy Policy Guidelines for Mobile Apps.

The National Advertising Division of the Council of Better Business Bureaus recommended that a retailer discontinue its pricing comparison claims as they relate to suggested retail pricing.

As part of its ongoing review of FTC rules and guides, the FTC is seeking public comment on proposed amendments to its Mail or Telephone Order Merchandise Rule.

The Second Circuit recently clarified that its Verity decision, in which the court found that net profits was the proper measure for a disgorgement award in an FTC action, was limited to situations involving third-party processors.

The recent Supreme Court term resulted in a number of very important decisions that will impact companies engaging in advertising and marketing in the United States. Some decisions, such as Wal-Mart v. Dukes and AT&T v. Concepcion were pro-business particularly in the class action context.

The FTC has been seeking public comment and input for a number of years on whether its regulations under the Children's Online Privacy Protection Act of 1998 need to be revised or updated to address changes in technology and business.

In AT&T Mobility LLC v. Concepcion, a class action brought by cellular telephone customers against AT&T wireless, the United States Supreme Court affirmed that the arbitration dispute resolution remedy with a class action waiver set forth in the parties' contract was enforceable.

The Food and Drug Administration (FDA) and Federal Trade Commission (FTC) share jurisdiction over consumer health products such as dietary supplements.

There have been recent and important changes in two states to the sales/use tax laws covering online and mail-order retailers marketing into those states.

The Restore Online Shoppers' Confidence Act ("ROSCA"), the product of the Senate Commerce Committee's investigation into online "data pass" and advanced consent (negative option) marketing is now in effect.

The Federal Trade Commission has released its list of top consumer complaints received by the agency in 2010.

By William MacDonald*

The Southern District of New York recently granted summary judgment in favor of Snapple Beverage Corp in a case that challenged Snapple's use of the phrase "all natural."

As we have previously reported in connection with the FTC's settlement with Nestle and Iovate as well as the POM Wonderful lawsuits, the Federal Trade Commission continues to expand its enforcement of health claims by makers of food and dietary supplements.

Alibaba faces new scrutiny in the wake of an internal investigation which revealed that employees helped cover up fraudulent practices.

Businesses that charge consumers for paper copies of bills need to carefully examine their practices in New York.

With limited exceptions, the Song Beverly Credit Card Act (California Civil Code 1747, et seq.) significantly restricts brick-and-mortar retailers' ability to request or record personal identification information in connection with processing credit card transactions.

A class action lawsuit brought against Groupon and Nordstrom illustrates the risks in offering pre-paid discounts for a limited period of time.

Andrew Lustigman's analysis of the legal outlook facing the mobile marketing industry appears in Mobile Marketer's Outlook 2011.

Iowa Attorney General filed a consumer fraud lawsuit against Trilegiant Corporation, alleging that the company unfairly and deceptively charged Iowans for memberships in discount buying clubs or other programs, in many cases without consumers' knowledge.

In response to a controversial business practice by the Better Business Bureau (BBB), in which higher grades are given to businesses that pay for accreditation, Connecticut Attorney General, Richard Blumenthal, has threatened to take legal action.

The Florida Attorney General reached a settlement with, Systemax, and its subsidiaries, Tigerdirect, and Onrebate, over allegations the companies failed to pay advertised rebates to consumers.

In October 2010, the FTC issued its proposed revisions to its Guides for the Use of Environmental Marketing Claims, commonly known as the "Green Guides."

California's new auto renewal legislation takes effect on December 1, 2010.

While mobile marketing continues to develop significantly given the primary importance consumers place on the devices coupled with their tremendous advances in technology, the law in this area continues to lag.

Online marketing plans and sales arrangements that allow consumers to consent in advance to receive and pay for goods or services in the future on a continuing or periodic basis are convenient and beneficial to both consumers and marketers.

The Federal Trade Commission and the marketer of POM Wonderful are waging competing legal actions against each other regarding the POM's ability to make certain health claims without obtaining prior FDA approval and possessing certain levels of substantiation.

In two recent settlements announced the same day, the Federal Trade Commission has expanded the type of substantiation required for a marketer making certain health claims.

The Mobile Marketer article "Why is the mobile industry so susceptible to shakedowns?discusses some of the reasons why the mobile industry is facing so many different kinds of lawsuits, ranging from patent infringement to consumer protection issues.

On June 30, 2010, Andrew Lustigman will join a panel of experts to discuss the latest legal developments in mobile marketing law.

The major pending financial regulatory reform bill (the Dodd-Frank Bill (HR 4173/S3217), was finalized without providing the FTC with additional enforcement and rulemaking powers.

The FTC recently issued an FAQ for business: The FTC's Revised Endorsement Guides: What People are Asking.

Legislation is currently before the Governor of Rhode Island for signature that will regulate Discount Buying Clubs (2009 RI HB 7597).

Why should companies care about claims being made about their products in social media?

Mobile marketing is different from any other form of marketing because it requires express consent, or opt-in, from consumers to be able to contact them.

On May 19, 2010, Senator Rockefeller (D-W. Va.), head of the Senate Commerce Committee, introduced draft legislation that would ban certain internet sales tactics and restrict others.

By Frank Hernandez*

Frank Sarcona of West Palm Beach, Florida, was recently sentenced to 20 years in prison by the Federal Court for the Southern District of Florida.

Visa announced that it is placing restrictions on "data pass," in which a consumer's credit card information is shared to process for additional merchants who offer online upsells without the re-entry of credit card data.

By Frank Hernandez*

An upcoming California law, taking effect on December 1, 2010, will be imposing tougher restrictions on those who offer services with automatic renewals or on a continuous basis.

The FTC made public its first investigation into a company's relationship with bloggers by deciding not to take action in a case with women's retailer Ann Taylor.

The recently proposed federal privacy legislation sponsored by Rep. Boucher (D-Va) and Rep. Stearns (R-Fla) seeks to create...

Companies charging their customers annual membership fees should take notice of a recent lawsuit that cost retail giant Costco quite a bit of money.

Response Magazine article entitled "Legal Review: New Jersey Attorney Targets Marketers in Putative Class Actions" is now online.

On March 9, 2010 the identity theft protection service, LifeLock, settled charges made by the Federal Trade Commission and 35 states alleging that the company made false claims.

The state of Colorado recently passed two laws which apply to the direct marketing industry. One applies particularly to out of state sellers who do not collect and remit Colorado sales tax.

The Dannon Company recently settled a Northern District of Ohio class action, which is being characterized as one of the largest settlements of a food false advertising case.

Manufacturers, distributors and retailers of dietary supplements have become the target of new legislation proposed by Senator McCain and co-sponsored by Senator Dorgan. S.3002, The Dietary Supplement Safety Act of 2010, is currently pending before the United States Senate.

As we previously reported the FTC has placed pressure on behavioral marketers to self-regulate or face regulation. Under this threat, a broad coalition of advertising associations moved forward on establishing an easily identifiable icon and plain language in a disclosure statement that will be linked to the icon.

A distributor of pure pomegranate juice sued a competitor company alleging that ads which claimed their juice was "100%" pure pomegranate juice with "no sugar added" were false.

In December 2009, the Interactive Advertising Bureau (IAB), a consortium of media and technology companies leading the online advertising market, joined with the Association of American Advertising Agencies (4As) in releasing Version 3.0 of their Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less.

On January 27, 2010 the New York Attorney General announced that his office was investigating 22 popular online businesses that linked consumers to fee-based membership programs that charged "unauthorized" fees under the "guise" of discount offers.

Many marketers may be in favor of the proposed Wall Street Reform and Consumer Protection Act of 2009 (H.R. 4173) recently passed by the House in December 2009 and currently before the Senate because the bill seeks to address elements which caused the current financial crisis.

When it comes to the rules of advertising, many remain confused by the legal doctrine that while a statement can be literally true, it still can be considered false or deceptive.

In a recent administrative opinion, the Federal Trade Commission (FTC) rejected a defense that the marketing of dietary supplement products within FDA so-called structure and function claims, precluded enforcement by the FTC of deceptive health claims.

The New York Attorney General has sued not just the marketer, but the finance company that processed the contracts company to recover for alleged false advertising by marketer, even though the finance company was not alleged to have been involved in active wrongdoing.

After a tumultuous tenure, John Greco, has resigned as President and CEO of Direct Marketing Association (DMA).

In light of significant scrutiny and criticism by Senator Jay Rockerfeller (D-W.Va) who is investigating membership club upsell marketing, Affinion has advised the Senator that it will now require full credit card entry for enrollment.

On November 4, 2009 Facebook issued new Promotions Guidelines which govern the publicizing or administering of any sweepstakes, contest, competition or other similar offering.

On December 7, 2009 Google filed a lawsuit against a U.S. company it alleges runs work-at-home scams that unnecessarily charge people's credit cards and spoof Google's brand name.

Perhaps the most important development in advertising law in several decades, the FTC's recently revised Guides Concerning the Use of Endorsements and Testimonials in Advertising go into effect on December 1, 2009.

The United State Commerce Committee has expanded its investigation into e-commerce companies which present membership club enrollment offers to their online customers and have the customers agree to pass their customers' credit card or debit card numbers to enroll in the membership club.

Retailers with stores in New York should take note that effective November 25, 2009, an amendment to the state's existing refund policy law takes effect.

This time it appears Jessica Seinfeld, wife of comic Jerry Seinfeld, is getting the last laugh.

A federal judge has ruled that Veoh Networks Inc., a web-video host, is entitled to safe harbor under the Digital Millennium Copyright Act ("DMCA") and is not liable for monetary or injunctive relief to members of Universal Music Group ("Universal"), which sued Veoh for copyright infringement.

Lustigman Firm is proud to be legal counsel to Michael C. Fina, the Sponsor of the Diamond Dash: Dash for a Diamond & A Cure.

The New York Attorney General and Dell and its subsidiary, Dell Financial Services (DFS), have reached a settlement whereby Dell agreed to by the AG's Office $4 million in restitution, penalties and costs to resolve charges of fraudulent and deceptive business practices across New York State.

In an unusual lawsuit, ValueClick, the California-based online advertising company, has agreed to pay a $10,000,000 cash settlement in a false advertising lawsuit (case no. 2:07-cv-05411-DDP-AJW, Carl Waldrep v. Valueclick, Inc.).

A podcast of Part I of Andrew Lustigman's radio interview on Mobile Presence is now live.

On June 19, 2009 the Ninth Circuit ruled that the District Court had erred in ruling in Simon & Schuster's favor in a class action suit brought by Laci Satterfield.

On May 25, 2009, President Obama signed the Credit Card Accountability, Responsibility and Disclosure (CARD) Act of 2009. The Act amends the Truth in Lending Act and imposes a number of new requirements on gift certificates, store gift cards, and general use prepaid cards by putting limits on expiration dates and fees that can be imposed, and setting forth new disclosure requirements. The new law will become effective on August 22, 2010.

A Branchburg, New Jersey woman who was employed as Regional manager of a Pharmaceutical company was sentenced upon criminal conviction for having instructed sales reps to market a drug product for conditions for which it had not been approved.

Florida's Attorney General announced a $1.5 million dollar settlement with Verizon Wireless and Alltel over "free" ringtone offers.

On June 9, 2009 the FTC charged Kmart Corp., Tender Corp., and Dyna-E International with making false and unsubstantiated claims that their paper products were "biodegradable." Kmart and Tender have agreed to settle the cases against them; the case against Dyna-E will be litigated.

The Federal Trade Commission is seeking public comment on its Rule Concerning the Use of Prenotification Negative Option Plans (Negative Option Rule), 16 C.F.R. Part 425, as part of the agency's systematic review of its rules and guides.

Signaling a new focus on food health-related claims, the FDA has issued a Warning Letter to General Mills with respect to the labeling of Cheerios® Toasted Whole Grain Oat Cereal.

In a Federal Register announcement, the FTC announced that it plans to conduct a study to examine consumer perception of environmental marketing claims.

The Federal Trade Commission has announced that it will hold a day-long public workshop on June 1, 2009 in Washington, DC, to explore proposed changes to the FTC's Business Opportunity Rule.


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