Advertising and Marketing

Use of Certain Technologies to Track Web Session Data May be Unlawful

Attention Lead Generators  The Ninth Circuit Court of Appeals recently held that use of certain technologies on a websites in order to track and record web session data before obtaining affirmative consent may be a violation of  California’s wiretap statute. In the case of Javier v. Assurance IQ, LLC and ActiveProspect Inc. (*not precedent except as…

FTC Contemplates Rules That Impose Monetary Penalties for Deceptive Earnings Claims and Targeted Marketing

On February 10, 2022 the Federal Trade Commission announced that it intends to vote whether to issue an Advance Notice of Proposed Rulemaking on “deceptive earnings claims for business ventures, gig or other work opportunities, or educational, coaching or training offerings.”  The vote is set to take place on February 17, 2022 at an open…

FTC Alleges Facebook Resorted to Illegal Buy-or-Bury Scheme to Crush Competition

On August 19, 2021, the Federal Trade Commission filed an amended complaint against Facebook in the agency’s ongoing federal antitrust case.  The complaint alleges that after repeated failed attempts to develop innovative mobile features for its network, Facebook instead resorted to an illegal buy-or-bury scheme to maintain its dominance.  According to the FTC, Facebook unlawfully acquired innovative…

FTC Announces More Aggressive Use of ROSCA to Obtain Monetary Relief

On June 7, 2021, the Federal Trade Commission (FTC) announced a proposed settlement with MoviePass.  Interestingly, FTC staff attorneys used the used the proposed settlement to announce a completely new and original way of obtaining monetary relief.  The case raises legitimate concerns for digital marketers that offer negative option programs because it indicates that the FTC now…

Advertising Claim Substantiation Mistakes Made by Internet Marketers

The Federal Trade Commission requires advertisers to possess a “reasonable basis” for express and implied claims. The failure to do so constitutes an unfair and deceptive act or practice in violation of Section 5 of the FTC Act. Substantiation is a key FTC enforcement priority. Advertisers should be intimately familiar with FTC substantiation investigation and…

U.S. Supreme Court Halts FTC’s Ability to Obtain Ill-Gotten Gains

On April 21, 2020 in the matter of AMG Capital Management, the U.S. Supreme Court effectively made it more difficult for the Federal Trade Commission to force those that engage in deceptive business practices to return ill-gotten gains obtained from consumers. The unanimous ruling was written by Justice Stephen Breyer and is a victory of…