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...

Plain Meaning: Conservative Judges Reining In the FTC?

In recent decisions analyzing the plain meaning of the FTC Act, two federal district courts have held that the FTC cannot file suit under § 53(b) of the Act where the alleged misconduct has ceased.  If upheld on appeal, the impact of these cases could be extraordinary.

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...

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...

CAN-SPAM: Is the FTC Poised For Major Changes?

The FTC has asked interested parties to address a wide variety of questions concerning its CAN-SPAM rules, including whether the rules provide any benefits at all to consumers. Where might this lead?

Reference Prices: Are You at Risk?

Reference prices advise consumers that they are getting a bargain. The California Court of Appeal, however, just upheld a $6.8 million penalty on the grounds that a company’s use of list prices and comparison prices constituted a deceptive trade practice.  Amazon is also apparently under investigation for its use of list prices.  If past is prologue, we...

Former Prices: A Class Action Trap

Do you promote “former prices” to underscore the bargains you’re offering?  If so, you should be on high alert.  Increasingly, lawyers are targeting these kinds of promotions for sweeping class action lawsuits.

FTC Issues Long–Awaited Patent Troll Study

The Federal Trade Commission today announced the publication of its formal study of the problem of patent trolls—which the Commission more politely refers to as “patent assertion entities” or “PAEs.” Using its investigative authority, the Commission examined non–public information for 2009–2014 from 22 PAEs, 327 PAE affiliates, and 2,100 holding entities. The FTC divided the...

Trans Pacific Partnership: No More “Made In the USA”?

An essay in the Washington Times claims that that the Trans Pacific Partnership agreement (the “TPP”), if ratified by Congress, would ban labeling products with their country of origin.  According to writer Judson Phillips: Do you want to buy American? Forget about it. Under this deal, there can be no labeling to tell you a product is made in America....

PTAB Takes Out MPHJ Scanning Patent

Notorious patent troll MPHJ Technology Investments has been in the news and courtrooms a great deal over the past several years. Its rise to prominence began with waves of letters from hard–to–trace affiliates to small businesses demanding that they license the ability to scan documents to send by email. That got the attention of Vermont...