2018
Plain Meaning: Conservative Judges Reining In the FTC?
David Bertoni / 0 CommentsIn 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.
Read More
2018
Autodialers: Ninth Circuit (Again) Opens Class Action Floodgates
David Bertoni / 0 CommentsBusinesses 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...
Read More
2017
Class Actions: What Might Be On Your Horizon as a Direct Marketer?
David Bertoni / 0 CommentsCompanies 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...
Read More
2017
CAN-SPAM: Is the FTC Poised For Major Changes?
David Bertoni / 0 CommentsThe 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?
Read More
2017
Reference Prices: Are You at Risk?
David Bertoni / 0 CommentsReference 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...
Read More
2017
Former Prices: A Class Action Trap
David Bertoni / 0 CommentsDo 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.
Read More
2016
FTC Issues Long–Awaited Patent Troll Study
David Swetnam-Burland / 0 CommentsThe 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...
Read More
2015
Trans Pacific Partnership: No More “Made In the USA”?
David Bertoni / 0 CommentsAn 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....
Read More
2015
PTAB Takes Out MPHJ Scanning Patent
David Swetnam-Burland / 0 CommentsNotorious 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...
Read More
2014
FTC Updates Mail Order Rule for Internet Age
Nathaniel Bessey / 0 CommentsFor decades, direct marketers have been subject to the Federal Trade Commission’s Mail Order Merchandise Rule, 16 C.F.R. 435, sometimes referred to informally as the “30 Day Rule.” Generally speaking, the Rule prohibits sellers from soliciting mail, Internet or telephone order sales unless they have a reasonable expectation that they will be able to ship...
Read More