Shahin O. Rothermel

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Thought that the FTC and California planned to cool off on enforcing trial and subscription programs? Think again. The FTC and California continue to bring these actions with alarming regularity. For those of you who haven’t been tracking these issues, last year California’s Automatic Renewal Law was amended to tighten the restrictions on continuity programs. The amendments increased restrictions on companies providing trial or discounted introductory programs, and required companies to provide an “exclusively online”…
Everyone thinks that when the federal government shuts down, nothing happens in Washington. Not true. Last week, following in the footsteps of other states, the District of Columbia passed a new law regulating automatic renewal offers. The law affects all companies that sell goods or services pursuant to a contract that automatically renews at the end of a definite term. Although the law mirrors other states’ laws in some respects, it creates much stricter requirements…
Over the past few years, class action plaintiffs have filed a slew of lawsuits against online retailers under the New Jersey Truth in Consumer Contract, Warranty and Notice Act (TCCWNA), which prohibits a seller from offering or entering into consumer contracts that contain any term that violates a “clearly established” New Jersey or federal law. Violations are punishable by a maximum civil penalty of $100, actual damages, or both, and private actions can be brought…
Last week, in an ironic twist of fate, the Federal Trade Commission (FTC) charged the operators of the Pact Mobile App, which paid consumers for keeping their fitness promises and charged consumers who missed their goals, for failing to honor its promises to consumers. According to the FTC’s complaint, when consumers signed up for the Pact App (formerly GymPact), consumers provided the app with their payment card information and set a workout or fitness…
When courts decide to stay actions to await FDA guidance in an area, it’s only natural that our ears perk up. Which has been going on a lot, with cases such as Kane v. Chobani and Swearingen v. Santa Cruz Natural, Inc. Last week, however, the Ninth Circuit Court of Appeals, which had previously opted to wait for FDA guidance with respect to evaporated cane juice, decided there was no need to wait for…
DJ Khaled’s Snapchat account has quickly risen in profile over the past year, with his continuous snaps about meals, music, and the keys to success. But the tone of many celebrity social media posts, including Snapchat, may soon need to change. In recent days, the FTC has made clear that it will begin to more vigorously enforce celebrity endorsements where there was insufficient disclosure that the influencer was paid to post. But, given the prevalence…
Litigation surrounding the enforceability of website terms isn’t new.  Indeed, back in 2014, we blogged about the Nyugen case. Yet, courts continue to grapple with the question of what constitutes an adequate disclosure and binds website visitors to the terms and conditions of a service agreement. Last month, the Seventh Circuit decided in Sgouros v. Transunion Corp. that an online browsewrap contract was not binding because it did not provide notice that the customer…
It doesn’t take a genius to know that health claims are on the FTC’s radar.  In fact, at last year’s NAD conference, Commissioner Brill said that the FTC will prioritize enforcement of unsubstantiated health claims, such as cognitive claims.  We have blogged about learning claims before, including the Word Smart case.  However, Lumosity, which created a program marketed to train the brain, improve memory, and delay cognitive impairment, was cast into the spotlight…
As Uncle Ben once said, “With great power comes great responsibility.”  But Peter Parker had to learn the hard way, and marketers and social influencers sometimes need to as well.  Well-known influencers can come from anywhere – some have big screen starts, others are video game superstars, and still others are makeup geeks.  Some even started out as bloggers (fingers crossed).  As the compensation of social influencers increases, however (YouTube channel Itsbabybigmouth reportedly makes between
If there is one takeaway from yesterday’s panel on native advertising, it’s that sponsored content is not going anywhere in the foreseeable future.  Although NAD has talked about it before, the FTC has held a workshop to address it, and of course, we’ve blogged on it, native advertising is still a hot topic.  Native advertising, a form of sponsored content, is a fast-growing method for promoting products. As explained by Diedre Sullivan, Senior Counsel…