David McDowell

Latest Articles

In law school, everybody learns the adage that hard cases make bad law. When it comes to the Federal Trade Commission, a better aphorism might be, “easy cases make new law.” The FTC’s recent settlement with Nomi Technologies Inc. is, as the FTC’s press release notes, the “FTC’s first against a retail tracking company.” On its face, the case is like many FTC privacy cases: It challenges a statement in the company’s privacy policy for…
The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an initiative named “Operation Full Disclosure,” which the FTC implemented to review fine print disclosures and other disclosures that it believed were difficult to read or easy for consumers to overlook, yet included critical information that consumers would need to…
The Federal Trade Commission (FTC) announced this week that it sent warning letters to more than 60 national advertisers regarding the inadequacy of disclosures in their television and print ads. The letters are part of an initiative named “Operation Full Disclosure,” which the FTC implemented to review fine print disclosures and other disclosures that it believed were difficult to read or easy for consumers to overlook, yet included critical information that consumers would need to…
In recent weeks, numerous businesses have received letters asserting that their websites are not accessible to persons with disabilities, in violation of the Americans with Disabilities Act and California’s Unruh Act. These letters threaten litigation and warn of large penalty claims under the Unruh Act.  What these letters do not report is that California courts have repeatedly rejected claims that the ADA and Unruh require accessible websites, including a recent dismissal order from Judge David…
Massachusetts appears to have followed California’s lead in opening a litigation floodgate over ZIP code collection at the point of sale. In 2011, the California Supreme Court held in Pineda v. Williams-Sonoma Stores, Inc., 246 P.3d 612 (Cal. 2011), that a retailer illegally collects personal identification information (PII) when it requests and records ZIP codes from customers paying by credit card. More than 240 class action lawsuits followed. The Massachusetts Supreme Judicial Court’s recent…
Massachusetts appears to have followed California’s lead in opening a litigation floodgate over ZIP code collection at the point of sale. In 2011, the California Supreme Court held in Pineda v. Williams-Sonoma Stores, Inc., 246 P.3d 612 (Cal. 2011), that a retailer illegally collects personal identification information (PII) when it requests and records ZIP codes from customers paying by credit card. More than 240 class action lawsuits followed. The Massachusetts Supreme Judicial Court’s recent…
Handing a victory to online retailers, on February 4, 2013, the California Supreme Court held in a split decision that online transactions involving electronically downloadable products fall outside the scope of the Song-Beverly Credit Card Act (Apple v. Superior Court (Krescent), S199384). Despite acknowledging the unique fraud issues present in online transactions, the Court refused to decide the broader issue of whether the Act applies to online transactions that do not involve electronically…
Handing a victory to online retailers, on February 4, 2013, the California Supreme Court held in a split decision that online transactions involving electronically downloadable products fall outside the scope of the Song-Beverly Credit Card Act (Apple v. Superior Court (Krescent), S199384). Despite acknowledging the unique fraud issues present in online transactions, the Court refused to decide the broader issue of whether the Act applies to online transactions that do not involve electronically…