Venable LLP

As 2019 goes into full swing, it’s important for providers of payment processing services (referred to here as “acquirers”) and their merchants or submerchants to prepare for the various regulatory and industry changes coming this year. One such significant change comes in the form of Mastercard’s updated rules for negative option billing programs. Set to take effect on April 12, 2019, Mastercard’s new rules will tighten consumer protection requirements for negative option merchants and their…
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…
With the ink on the president’s signature barely dry, the commissioner of the U.S. Food and Drug Administration (FDA) – Dr. Scott Gottlieb – issued a statement letting everyone know that the agency is aware of the implications of the Agriculture Improvement Act of 2018 (a/k/a the Farm Bill). As we reported last month, CBD derived from hemp may not be “marijuana” any longer, but the laws that the FDA enforces continue to prohibit (at…
The government is serious about opioids. We can see that in the many big, headline-grabbing steps it is taking to confront the problem. We can also see it in a number of small, less well-known steps it has taken. These often unheralded actions are strong evidence that the government is thinking hard, thinking creatively, and thinking aggressively. We will discuss one of those actions here: the unleashing of the FTC into the opioid field. To…
Many retailers carry products with the phrase “As Seen on TV.” What if a product bearing that phrase, however, had not actually been seen on TV? A recent case in federal court in the Southern District of New York ponders that question. In an advertising war between copper cookware competitors, plaintiff Emson sued its competitor Masterpan under the Lanham Act challenging claims made for the “The Original Copper Pan” (“OCP”). These claims included Masterpan’s use…
Signed into law on December 20, 2018, the 2018 Farm Bill may present a tremendous opportunity for banks and payments companies to provide banking, processing, and other services to the hemp industry. We expect a variety of companies to move swiftly in developing, marketing, and selling products (including CBD oil) that, until yesterday, were controlled substances. This means that banks and payment processors should be prepared for a flood of inquiries from the industry about…
The Federal Trade Commission (“FTC”) continues to crack down on companies engaged in credit card laundering. Credit card laundering is the practice of processing credit card transactions for one company through the merchant processing account of another company. Credit card laundering can be used to bypass the monitoring practices and volume thresholds of credit card associations and payment processors. A new complaint and a settlement of a prior case highlight the effort that the FTC…
Deciding whether to voluntarily disclose information to the government is difficult. Any guidance from the government as to what it expects from organizations and how it will reward self-disclosures should thus be welcome. In a recent appearance at a conference on the Foreign Corrupt Practices Act, Deputy Attorney General Rod Rosenstein announced several changes to DOJ’s corporate enforcement policy. Notably, his statements rolled back some of the requirements set forth in the eponymous “Yates
In the iconic words of DJ Khaled: “Another one.” That’s right, folks. Another round of celebrities have fallen on the wrong side of the federal government’s enforcement of its advertising disclosure rules. Recently, the SEC announced that it settled charges against Floyd Mayweather (professional boxer) and DJ Khaled (entertainer and music producer) for failing to tell their social media followers that they received money for promoting investments in Initial Coin Offerings (“ICOs”). This case is…
The FTC has long claimed expansive authority under the FTC Act to obtain injunctions and monetary judgments. Its claim to that expansive authority is somewhat creative, however, and has always rested on a shaky foundation. Litigants have begun taking aim at that claimed authority. In recent blog posts, we have written about challenges to the prevailing standard that governs when the FTC can obtain an injunction. Such challenges are enjoying some measure of success; important…