2024
Former Price Promotions, Current Legal Risk
David Bertoni / 0 CommentsFormer 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...
Read More2024
Children’s Privacy: Federal Regulations Are About To Change
David Bertoni / 0 CommentsIs Your Website “Directed to Children” Under 13? None of this matters unless you operate a website or provide an online service that is “directed to children” under the age of thirteen. Under COPPA, however, this is a holistic, i.e., mushy, question. And general businesses have gotten caught in the crosshairs. The FTC looks at...
Read More2019
Web Arbitration Clauses: Federal Court Upholds “Terms of Use”
David Bertoni / 0 CommentsOn 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...
Read More2018
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 More2018
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 More2017
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 More2017
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 More2017
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 More2017
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 More2016
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...
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