Synopsis: On January 6, 2020, Andrew Smith, director of the Federal Trade Commission’s Bureau of Consumer Protection, outlined in a blog post the agency’s new approach to data security orders. The agency implemented this approach in 2019 following a December 2018 hearing it held on the topic and an 11th Circuit decision that struck down a data security order as unenforceably vague. Elevating data security considerations to the C-Suite and Board level and increasing third-party assessor…

On December 16, 2019, the United States Supreme Court declined to review Krakauer v. Dish Network LLC, thus leaving unresolved a circuit split regarding Article III standing under the Telephone Consumer Protection Act (“TCPA”). As you may recall, on June 3, 2019, we reported on the Fourth Circuit’s opinion in Krakauer v. Dish Network, an opinion upholding a historic, $61 million TCPA jury award in the face of an Article III standing challenge. Dish…

Synopsis: On December 6, 2019, the Federal Trade Commission issued a unanimous ruling against political data firm Cambridge Analytica for violating Section 5 of the FTC Act by misrepresenting that it would not download personally identifiable information when it in fact harvested this information from over 50 million Facebook users. Specifically, Cambridge Analytica represented that it would not download Facebook users’ name or any other identifiable information. To the contrary, its app collected a bevy of…

Synopsis: FTC publishes a quick-resource guide for influencers to encourage advertising compliance on social media. For the last several years the Federal Trade Commission has been addressing the misleading marketing of consumer goods through social media influencers. At the beginning of this month, the FTC reinforced its concern with social media influencers by publishing a short guide and a video directed at those that endorse products online. Misleading influencer conduct triggers Section 5 of the FTC…

Synopsis: Last month, the Ninth Circuit issued an opinion, affirming broad Article III standing and holding that, for permissible-purpose claims, a consumer-plaintiff need allege only that his/her credit report was obtained for a purpose not authorized by the statute to survive a motion to dismiss, regardless of whether the report is published or otherwise used by the third party. Case Background In June 2016, Plaintiff Freshta Nayab discovered that a banking institution (“the Bank”) had made several…

Synopsis: Unhappy with the FDA’s position on branding, Congressional representatives seek to define “natural” narrowly to limit its use in consumer advertising. As the cosmetic industry moves on to new marketing lingo connoting healthier and safer cosmetics, including “clean beauty,” “sustainable,” “vegan,” and “pure,” New York Representative Sean Patrick Maloney introduced the Natural Cosmetics Act (the “Bill”) last week in the US House of Representatives. While the US Food and Drug Administration (FDA) has declined to…

The Federal Trade Commission recently published a preliminary staff report on two studies it conducted to understand the effectiveness of class action settlement notices and develop information to help improve consumer settlement outcomes. While the report highlights its findings relating to low refund claim rates by class members, defense counsel may be more interested in the consumer research conducted to evaluate how email sender names, subject lines, and email formats can influence a consumer to…