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All About Advertising Law

FTC Schools Marketers on the ABCs of Negative Option Marketing

By Leonard L. Gordon & William Lawrence

September 16, 2020

We have written previously about the FTC’s vigorous enforcement efforts relating to negative option marketing and its crackdown on alleged wrongdoing seeking to exploit the difficulties presented by COVID-19 (see blog posts here and here). Recently, the FTC continued its efforts with a complaint and settlement concerning negative option marketing to parents seeking online educational resources for their children. On September 1, 2020, the FTC brought a complaint against online children’s education company Age…

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Following the Mone(tary Relief): District Court Limits the FTC’s Authority Post-Liu

By Leonard L. Gordon, Ellen T. Berge, Mary M. Gardner & Michael A. Munoz

September 10, 2020

In the wake of the Supreme Court’s opinion in Liu v. SEC, lower courts are starting to address the breadth of its applicability. On August 31, 2020, the District of Arizona welcomed the Supreme Court’s directives in Liu when denying Electronic Payment Solutions of America Inc.’s (EPS) bid for summary judgment against the FTC. To the extent other courts read Liu as similarly applicable, this could have broad implications for the FTC’s authority to obtain…

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FTC Scrutinizes Loot Boxes – What are the Odds?

By Christopher L. Boone

August 24, 2020

The FTC recently released its staff perspective paper on video game loot boxes. The report details discussions from the FTC’s loot box workshop that took place in August last year, summarizing key points and takeaways. You can read our write up of the workshop here. The workshop, “Inside the Game,” brought video game industry representatives, researchers, and consumer advocates together to examine consumer protection issues related to loot boxes and related microtransactions in video…

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Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?

By Ian D. Volner, Daniel S. Blynn, Stephen R. Freeland & Michael A. Munoz

August 13, 2020

The issue of what exactly is an autodialer, subject to the restrictions of the Telephone Consumer Protection Act (“TCPA”), may eventually be resolved. But for now, the outlook is much like the long-ago Brooklyn Dodger’s chance of winning the World Series: “Wait ‘Til Next Year.” On July 29, 2020, a divided, 2-1 panel in the Sixth Circuit issued its opinion in Allan v. Pennsylvania Higher Education Assistance Agency, deepening the circuit split over the breadth of…

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FTC Follows up on Enforcement Priorities with Complaint Against Merchant Cash Advance Provider

By Ellen T. Berge, Andrew E. Bigart, Evan R. Minsberg & Makalia A. Griffith

August 11, 2020

Following a warning from earlier this year, the FTC recently filed a complaint against a group of corporate and individual defendants for allegedly misleading and deceiving small business “merchant cash advance” (MCA) customers. Structured properly, an MCA product offers an alternative to standard commercial credit under which the MCA provider purchases the right to receive a fixed amount of the customer’s receivables to be paid based on a percentage of the customer’s daily receipts. Specifically,…

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FTC Turns Up the Heat on Deceptive Insulation and Energy-Saving Claims

By Leonard L. Gordon & Megan K. Hynes

August 10, 2020

On July 28, 2020, the FTC filed four complaints in federal courts across the country against companies who sell paint products used to coat homes and other buildings. At issue in the complaints are paint products that claimed to help insulate homes or buildings, saving the owner money on utility bills. The cases serve as a reminder that the FTC remains on the lookout for deceptive “green” claims, and that claims of “green” benefits must…

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Proposed FTC Rule to Allow Civil Penalties for Deceptive “Made in USA” Claims

By Ellen T. Berge, Leonard L. Gordon, Lindsay B. Meyer, Melissa Landau Steinman & Elliot Kelly

July 29, 2020

Proud that your products are “Made in the USA”? Before you wave the flag, know that an unqualified Made in USA claim means that your product must be “all or virtually all” made in the United States, and the Federal Trade Commission has bolstered its enforcement authority over deceptive Made in USA claims with a new proposal to allow civil penalties for violations of its Made in the USA standards. We previously blogged about recent…

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Legal Implications of Syncing Copyrighted Music with Other Content

By Calvin R. Nelson, Katherine C. Dearing & Nicholas W. Jordan

July 16, 2020

With the rise of social distancing and stay-at-home orders, the demand for online content has increased exponentially. Given this new reality, online content creators must take steps to ensure that their online creations don’t land them in legal hot water. One of the most prevalent cross-industry issues is music licensing. Music is everywhere in online content and often plays an integral part in the overall experience. From video game players streaming music as they show…

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NAD Issues First Decision under Fast-Track SWIFT Program

By Leonard L. Gordon & Shahin O. Rothermel

July 15, 2020

Earlier this month, NAD issued its first decision under its Fast-Track SWIFT program, its expedited review track for single well-defined advertising issues. (Here are more details on NAD’s Fast-Track SWIFT program.) In its first substantive Fast-Track SWIFT decision, NAD dealt with a dispute between energy bar manufacturers Kind and Clif and reviewed the claim “A Better Performing Bar–Clif Bar For Sustained Energy,” which appeared as the top AdWords result for internet keyword searches for…

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Ninth Circuit Blocks Class Plaintiffs’ Efforts to End Run Jury Trial

By Angel A. Garganta, Amit Rana & Antonia I. Stabile

July 13, 2020

On June 17, 2020, the Ninth Circuit Court of Appeals issued a published opinion affirming the dismissal of a consumer class action seeking $32,000,000 against Venable client Premier Nutrition Corporation. The Court held that federal equitable principles must apply to class actions pending in federal court, even where state law rules the underlying causes of action. See Sonner v. Premier Nutrition Corp., No. 18-15890, 2020 WL 3263043 (9th Cir. June 17, 2020). Plaintiff-Appellant Kathleen Sonner sued…

All About Advertising Law

Regulatory and Litigation Developments for Advertisers and Marketers

Blog Authors

FTC Schools Marketers on the ABCs of Negative Option Marketing

Following the Mone(tary Relief): District Court Limits the FTC’s Authority Post-Liu

FTC Scrutinizes Loot Boxes – What are the Odds?

Deepening the Divide: Will the Sixth Circuit’s Expansive Reading of the ATDS Definition Survive?

FTC Follows up on Enforcement Priorities with Complaint Against Merchant Cash Advance Provider

FTC Turns Up the Heat on Deceptive Insulation and Energy-Saving Claims

Proposed FTC Rule to Allow Civil Penalties for Deceptive “Made in USA” Claims

Legal Implications of Syncing Copyrighted Music with Other Content

NAD Issues First Decision under Fast-Track SWIFT Program

Ninth Circuit Blocks Class Plaintiffs’ Efforts to End Run Jury Trial

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