A new decision out of the Middle District of Florida may signal further erosion of the FTC’s authority to seek monetary relief as it sets forth a heightened standard of proof the FTC must satisfy to support its disgorgement calculation. In FTC v. Vylah Tech LLC, the court found Vylah Tech, a small tech company, liable for disseminating false and misleading information regarding its computers. However, the court completely shut down the FTC’s demand for…

All About Advertising Law

Locksmiths Locked Out of Lawsuit Against Search Engines

By Leonard L. Gordon & Matthew S. Renick on June 17, 2019

These days, Big Tech is Big News. While federal lawmakers have recently turned their attention to tech giants and their market power—and launched a broad antitrust probe to boot—a recent decision out of the D.C. Circuit may offer these companies some respite (for now). In a case that pitted fourteen locksmith companies against three tech giants, the appeals court ruled that the safe harbor protections under Section 230 of the Communications Decency Act (“CDA”) applied…

Health Law | STAT

Recent Settlement with OCR and New OCR Fact Sheet Serve as Reminders That Business Associates Have Direct Liability under HIPAA

By Thora A. Johnson, Jami Mills Vibbert & Judy Kim on June 10, 2019

The Department of Health and Human Services Office for Civil Rights (OCR) has shown once again that it is willing to enforce HIPAA against business associates, as seen in a recent settlement. The settlement highlights the importance of thorough risk analysis conducted by business associates and covered entities, as required by the HIPAA Security Rule, and serves as an indication that OCR remains ready to exercise its authority to enforce HIPAA’s requirements for business associates.…

All About Advertising Law

FTC Continues to Clamp Down on Gag Clauses

By Annie H. Lee on June 5, 2019

About a month ago, we blogged about how the FTC brought its first-ever cases under the Consumer Review Fairness Act (CRFA) since the statute went into effect in 2017. Well, it looks like the FTC was just getting started, as it announced this week that it has issued administrative complaints and proposed orders against two more companies for allegedly violating the CRFA. To briefly recap, the CRFA prohibits businesses from including “gag clauses” in their…

All About Advertising Law

FTC Reminds Crowdfunders: Deliver on Your Promises or Refund

By Kathleen K. Sheridan & Melissa Landau Steinman on June 4, 2019

Crowdfunding plays an important role in democratizing access to capital for small entrepreneurs, but as we’ve written before, entrepreneurs of every ilk need to remember that their representations to consumers need to be truthful, accurate and not misleading. Last month, the FTC filed a complaint against Douglas Monahan and his company iBackPack of Texas, LLC, alleging that Monahan and his company had violated Section 5 of the FTC Act by scamming consumers on crowdfunding…

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You Can’t Block the Ability of the CFPB to Challenge Conduct Through a Release in a Class Action

By Leonard L. Gordon on June 3, 2019

On April 22, the Maryland Court of Special Appeal told us that a class action settlement can’t buy you peace from the CFPB. That court ruled that a class settlement that purports to interfere with a state agency’s or the CFPB’s enforcement authority was unenforceable. The underlying dispute stems from two cases. The first is a class action brought by lead poisoning victims with cognitive impairments. And the second is a suit bought by government…

All About Advertising Law

fore·shad·ow (verb). Be a warning or indication of (a future event): FCC Commissioner O’Rielly Speech Suggests What’s in Store for the TCPA

By Daniel S. Blynn on May 16, 2019

On May 16, 2019, FCC Commissioner Michael O’Rielly gave a speech at the ACA International Washington Insights Conference in Washington, DC, which gave a preview of how the Commission may shape the TCPA landscape in the near future. Commissioner O’Rielly’s full speech is available here. He gave his thoughts on a number of subjects and some of the highlights are below. As to the TCPA’s definition of “automatic telephone dialing system” (ATDS or more…

Blockchain Report

Improving upon the SEC’s Blockchain “Framework”: Toward a Reasonable Regulation of Digital Tokens

By Chris O'Brien & Stephen T. Salsbury on May 10, 2019

Introduction Are digital tokens issued by blockchain companies securities under U.S. law? Much of the industry, including several prominent law firms, has taken the position that they are not. The Securities and Exchange Commission (SEC) has consistently stated that many or even most are securities. It recently issued a “Framework” that laid out a host of criteria that will guide the agency’s analysis. With the framework and its first blockchain no-action letter, the SEC has…

Health Law | STAT

New Settlement with OCR Reminds Healthcare Companies of the Importance of a Timely and Thorough Investigation of Security Incidents

By Thora A. Johnson, Jami Mills Vibbert & Judy Kim on May 9, 2019

Despite the announcement made last week by the Department of Health and Human Services Office for Civil Rights (OCR) about certain reduced penalty caps under the Health Insurance Portability and Accountability Act (HIPAA), OCR has shown in this week’s settlement that it still plans to vigorously enforce HIPAA. New Maximum Annual Penalty Caps On April 30, 2019, OCR announced in a Notification of Enforcement Discretion new annual penalty caps for identical violations of a requirement…

All About Advertising Law

Gagging Gag Clauses under the Consumer Review Fairness Act

By Annie H. Lee on May 9, 2019

For the first time since the Consumer Review Fairness Act (CRFA) went into effect in March of 2017, the FTC has brought three separate actions enforcing the CRFA to halt the use of “gag clauses” – i.e., contract provisions that prohibit consumers from writing or posting negative reviews. The CRFA bans these types of non-disparagement clauses in consumer form contracts when the clauses are imposed on individuals without giving them a meaningful opportunity to negotiate.…

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Federal Court to FTC: Show the Receipts When Seeking Disgorgement

Locksmiths Locked Out of Lawsuit Against Search Engines

Recent Settlement with OCR and New OCR Fact Sheet Serve as Reminders That Business Associates Have Direct Liability under HIPAA

FTC Continues to Clamp Down on Gag Clauses

FTC Reminds Crowdfunders: Deliver on Your Promises or Refund

You Can’t Block the Ability of the CFPB to Challenge Conduct Through a Release in a Class Action

fore·shad·ow (verb). Be a warning or indication of (a future event): FCC Commissioner O’Rielly Speech Suggests What’s in Store for the TCPA

Improving upon the SEC’s Blockchain “Framework”: Toward a Reasonable Regulation of Digital Tokens

New Settlement with OCR Reminds Healthcare Companies of the Importance of a Timely and Thorough Investigation of Security Incidents

Gagging Gag Clauses under the Consumer Review Fairness Act

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