Eric S. Berman

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Readers of this blog often learn how the government regulates modern instruments for customer engagement – social media, texting campaigns, e-commerce sites, the use of influencers, and more. Old habits die hard, however, and many marketers continue to use the U.S. Postal Service to connect with consumers. When those mailers want to reach a large audience, Marketing Mail (formerly known as Standard Mail) may be the answer. Mailers use USPS Marketing Mail to deliver catalogues,…
On June 29, 2018, federal district courts in California and Kentucky issued conflicting decisions over the deference owed to prosecutors in seeking to dismiss frivolous False Claims Act (FCA) claims and the effect of the January 2018 Granston Memo, which recognized dismissal as an “important tool” to advance governmental interests, preserve limited resources and avoid adverse precedent. In United States et al. v. Academy Mortgage Corporation (N.D. Cal.), the relator, an underwriter at Academy Mortgage…
The Federal Trade Commission (FTC) continues its oversight of charitable fundraising conduct. This month, the FTC issued guidance for both donors who donate to charities through online giving portals and businesses that offer such portals. The agency also warned consumers to be wary of potential charity scams in the wake of recent natural disasters that trigger solicitations for money to help victims of those disasters. Earlier this year, we noted that the U.S. Department of…
The Telephone Consumer Protection Act (TCPA) has been making news of late, with the U.S. Court of Appeals for the District of Columbia’s partial rejection of a Federal Communications Commission rulemaking grabbing most of the headlines. We reported on that here. It is understandable that the D.C. Circuit’s decision has captured the attention of telemarketers and TCPA practitioners. However, nonprofit organizations and for-profit companies that help nonprofits reach consumers via telephone and text message…
On January 11, 2018, a federal court in Florida overturned a $350 million False Claims Act (FCA) jury verdict against a nursing home operator, finding “an entire absence of evidence of the kind a disinterested observer, fully informed and fairly guided by Escobar, would confidently expect on the question of materiality.” In United States ex. rel. Ruckh v. CMC II LLC et al., the relator claimed that a skilled nursing facility and its management…
The FTC’s Northwest Regional Office has, for decades, led federal law enforcement efforts to investigate and shut down alleged fraud in the charity fundraising industry (state attorneys general are even more active in this space, as we’ve noted in previous writings). While the Northwest Region was somewhat active in the 1990s and early 2000s, its appetite for policing fundraising telemarketers clearly received a boost from its collaboration with state regulators against several allegedly sham…
On October 5, 2017, the State of New Jersey sued Insys Therapeutics, Inc. (Insys), alleging that the company improperly marketed and promoted the opioid-fentanyl painkiller drug, Subsys. The civil complaint (Complaint) follows a series of federal indictments (and in some cases guilty pleas), of several Insys employees and executives, as well as lawsuits and ongoing investigations being conducted by several states. Like many other suits against drug manufacturers for improper marketing and promotion, the Complaint…
As previously discussed on this blog, the Telephone Consumer Protection Act (TCPA) prohibits “telephone solicitations” to numbers listed on the National Do-Not-Call list (NDNC). There is a rarely litigated exception to the TCPA’s do-not-call provisions, however, for calls placed by or on behalf of tax-exempt, nonprofit organizations. On October 11, 2017, in Spiegel v. Reynolds, No. 1:15-cv-08504 (N.D. Ill.), a putative nationwide class action, the U.S. District Court for the Northern District of Illinois…
Last week, the Federal Trade Commission (FTC) and the National Association of State Charity Officials (NASCO) hosted “Give & Take: Consumers, Contributions, and Charity,” a conference exploring consumer protection issues in the changing landscape of charitable giving. Day One of the conference kicked off with introductory remarks by Acting Director of the Bureau of Consumer Protection Tom Pahl, as well as Colorado Attorney General Cynthia Coffman (Day Two was not open to the…
In a development that many telemarketers will want to follow closely, the Soundboard Association (SBA) recently filed a complaint against the Federal Trade Commission (FTC) in the U.S. District Court for the District of Columbia. The SBA simultaneously asked the court to issue an injunction blocking the FTC from expanding the Telemarketing Sales Rule’s (TSR) prerecorded message restrictions to outbound calls that utilize soundboard technology. In a November 2016 letter, FTC staff indicated that…