Eyes on Ecom Law

FTC Takes Aim at AT&T: Lessons For Multichannel Marketers

On October 28, 2014, the FTC announced that it was suing AT&T on the claim that AT&T misled “millions of its smartphone customers by charging them for ‘unlimited’ data plans while reducing their data speeds, in some cases by nearly 90 percent.”  Just 20 days earlier, it announced a $105 million settlement with AT&T over...

States Begin to Issue Guidance on Tax Treatment of Bitcoin and Other Virtual Currencies

Although still a relatively new phenomenon, the virtual currency Bitcoin is accepted by an increasing number of retailers and other vendors, including prominent Internet sellers Newegg.com and Overstock.com.  See //www.wired.com/2014/09/overstock-com-becomes-first-major-retailer-accept-bitcoin-worldwide/ .  As virtual currencies such as Bitcoin gain wider acceptance both as an investment vehicle and as a medium for payment, some state revenue departments...

Use Your Vendor Agreements For Protection from Patent Trolls

The phenomenon of patent litigation brought by non-practicing entities (patent trolls) is among the most challenging legal issues facing our multichannel merchant clients these days.  The last 10 years have seen a sharp spike in the number of patent cases filed against all variety of business.  The cost of defending these cases-in money and in...

Retroactively Speaking: Michigan Imposes Over $1 Billion In New Income Taxes Going Back to 2008

The battle over income apportionment just took dramatic turn in Michigan, and the stakes could not be higher.  In July, the Supreme Court of Michigan ruled that IBM had a right to use a 3-factor apportionment formula for its 2008 tax year, despite the state’s insistence that the company was required to use a sales-factor...

Challenged Settlement Highlights Risk of Consumer Class Actions

The Seventh Circuit Court of Appeals recently heard oral argument on a challenge to a proposed class settlement in the case of Michael Rosman v. Radio Shack Corporation.  The lawsuit alleged that Radio Shack had violated the Fair and Accurate Credit Transactions Act (“FACT”), 15 U.S.C. §1681c(g), by printing the expiration date of the customer’s...

FTC Nabs Non-Children’s Businesses In Children’s Privacy Snare

With its announcement of a settlement with Yelp, Inc. on September 17, 2014, the United States Federal Trade Commission, a consumer watchdog agency, sent word to the public of an aggressive enforcement initiative under the Children’s Online Privacy Protection Act (“COPPA”), with a special focus on mobile devices.  In its press release, the FTC urged...

Software as a Service: Is it a Nontaxable Service?

Many non-state and local tax experts mistakenly believe that subscription charges for Software as a Service (“SaaS”), are not taxable because SaaS is the provision of services. However, there are many states that treat SaaS as taxable. See, e.g., New York TSB-A-11(17)S (June 1, 2011). Fortunately, the majority of states do not tax SaaS. Recently, the Georgia Department...

Illinois and Colorado Adopt Two Different Approaches to Internet Click-Through Nexus Laws

We have written extensively about Internet click-through nexus laws. Indeed, Brann & Isaacson prevailed, on behalf of the Performance Marketing Association, in the challenge to the Illinois Internet click-through nexus law. On October 18, 2013, the Illinois Supreme Court ruled that the Illinois statute violated the federal Internet Tax Freedom Act (“ITFA”), which is found at 47 U.S.C. §151...

Buffalo Bills Alleged Over-Texting Results in Multi-Million Dollar Settlement.

The National Football League’s Buffalo Bills, no strangers to disappointment on the field, are now a cautionary tale for mobile marketers. Last week, a federal judge in the Middle District of Florida approved a class settlement agreement over alleged violations of the Telephone Consumer Protection Act (“TCPA” 47 U.S.C. §227, et seq.), stemming from text messages sent...

Danger on the Horizon: Gift Card Companies and Unclaimed Property Laws

There are approximately twenty states that require issuers and holders of gift cards to pay to their state treasury the balances of any unredeemed gift cards, which is otherwise known as “breakage.” (For purposes of this article, I refer to gift cards in the broad sense, including gift certificates, gift cards, and stored value cards)....