Former Price Promotions, Current Legal Risk

Former price promotions, you say? Plus ça change, plus c’est la même chose. This isn’t just a quote from Jean-Baptiste Alphonse Karr or a line from Circumstances by Rush. It’s also a fitting description of the risks associated with California’s thorny and potentially unconstitutional Business & Professions Code § 17501. The combination of this statute and avaricious lawyers is...

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Privacy Bounty Hunters, Part I: The Risks Are Real

As I’ve written previously, if you sell anything online, it’s not a question of if—it’s when privacy bounty hunters will comes calling, accusing your company of violating anti-wiretapping or privacy laws. “The better part of valor is discretion,” as Shakespeare said, and now is the time to act. You can take proactive steps to reduce your risk,...

Privacy Redux Part I: Is It Time to Rethink Federal and State Privacy Laws?

Is it time for a privacy redux, to visit privacy anew to determine whether our legal system is doing something more than entangling honest companies in a costly web of superficial and ultimately meaningless requirements? I think so. I also think we need to act quickly before the regulatory cement begins to set and drags...

David Bertoni and David Swetnam-Burland Publish Article on Private Tax Enforcement in Tax Notes State

On January 29, 2024, Tax Notes State published the latest article by attorneys David Bertoni and David Swetnam-Burland in Brann & Isaacson’s Eyes on e-Commerce series, “New Year, Old Threats: Private Tax Enforcement Looks Back to the Future” (subscription required). The authors highlight recent developments in the private enforcement of state tax laws that practitioners...

Web Arbitration Clauses: Federal Court Upholds “Terms of Use”

On June 7, 2019, the United States District Court for the Northern District of Illinois ruled in favor of retailer Wayfair LLC, and its parent company, Wayfair Inc., in a decision that both (1) upholds a web arbitration agreement and (2) provides useful guidance in presenting “terms of use” to website shoppers. What can we...

Class Arbitration and Other Risks: Are You Protected?

More companies, large and small, are including arbitration clauses in their consumer agreements, including clauses that seek to bar class arbitration.  Such clauses may be easier said than done, and there remain traps for the unwary.

Autodialers: Ninth Circuit (Again) Opens Class Action Floodgates

Businesses who market by text or telemarketing beware.  On September 20, 2018, the Ninth Circuit adopted the most radical and expansive definition of what constitute autodialers for purposes of liability in the Telephone Consumer Protection Act (“TCPA”).  This startling interpretation of the TCPA, which could make even smartphones autodialers, is a potent reminder that, in...

Toxics In Packaging: Are You Protected?

As many direct marketers wrestle with the new Proposition 65 regulations (set to go into effect on August 30, 2018), there are other state laws relating to product safety as to which they should be aware.  We address here the nineteen (19) states that have enacted so-called “toxics in packaging” laws that regulate the presence...

Proposition 65: Big Changes for Direct Marketers

Starting next summer, you’ll be required put Proposition 65 product safety warnings in your catalogs and on your websites near every affected product.

Class Actions: What Might Be On Your Horizon as a Direct Marketer?

Companies who have faced class action lawsuits, even (and maybe especially) frivolous ones, won’t soon forget the experience.  Just getting a case dismissed, or fending off class certification in the first place, can be extraordinarily costly and stressful.   The amounts at stake are often huge–with potential downsides of “per violation” penalties in the four...