FTC Defense Lawyer

NATIONAL LAW REVIEW AWARD-WINNING ADVERTISING REGULATION, INVESTIGATIONS AND LITIGATION THOUGHT LEADER

The Federal Trade Commission Act (FTC Act) (15 USC §45) is the primary consumer protection statute enforced by the agency. The FTC is empowered to prevent unfair or deceptive marketing practices, conduct investigations and seek relief for conduct injurious to consumers.

FTC defense lawyer Richard B. Newman has successfully resolved some of the most important Internet advertising enforcement actions and regulatory inquiries in the past decade and is a critical asset to any company or individual faced with navigating a federal or state deceptive trade practices case.

Richard’s significant, nationwide litigation and counseling experience extends to aggressively defending a sophisticated client base (some of whose clients are comprised of Fortune 100 retail companies) in high-stakes "bet-the-company" advertising proceedings and investigations at all levels of government, and in state and federal courts throughout the United States.

  • Federal Trade Commission
  • State Attorneys General
  • Consumer Financial Protection Bureau
  • U.S. Department of Justice
  • National Advertising Division (NAD)
  • Departments of Consumer AffairsFTC Defense Lawyer

A number of Richard's clients have been recognized as being amongst the fastest growing private media and technology companies and ranked on Inc. Magazine's Annual 500/5000 List.

Richard defends and challenges marketing practices so his clients can strengthen their brands and market position.  His litigation experience also includes defending companies and individuals in private litigation matters in state and federal court involving allegations of unfair trade practices and false advertising, and Lanham Act litigation involving Internet, telecommunications, dietary supplement and consumer product companies.

In an industry where more and more traditional lawyers and law firms claim digital media advertising-related FTC defense expertise simply to win over clients, Richard Newman’s comprehensive knowledge of the unique business operations of Internet marketers and related regulatory defense subject matter experience provide a solid foundation for his ability to ensure that clients' marketing practices satisfy expectations established by applicable government agencies and that their interests are aggressively defended in high-profile litigation matters involving cutting-edge issues of law.

See here for tips on the art of responding to an FTC Civil Investigative Demand and here for considerations for digital marketers when selecting industry savvy and aggressive regulatory enforcement and investigation defense counsel.  Visit the "Ad Law Insights" - Legal and Regulatory Updates Blog for the latest FTC and state attorneys general compliance, investigation and enforcement developments of concern to advertisers and marketers.  See examples of Richard's recent Representative Experience.

Hinch Newman Selected to Author Consumer Protection Section of Prestigious ALM FTC Law, Practice and Procedure Treatise

Hinch Newman possesses demonstrated distinct subject matter expertise and a track record of success in the fields of digital advertising compliance, investigations (CIDs) and regulatory defense. As a result, FTC compliance and defense attorney Richard B. Newman has been selected to assume authorship of the Consumer Protection Section of the prestigious American Lawyer Media International Federal Trade Commission: Law, Practice and Procedure Treatise, a comprehensive resource for developments of concern to advertisers, marketers and legal professionals that practice before the Commission.

The firm’s contributions feature detailed analyses of emerging legal regulatory issues pertaining to advertising and marketing compliance, civil investigative demands, judicial litigation and administrative enforcement actions, rulemaking, civil penalties and consumer redress, legislative updates, evolving guidelines of unfairness and deception, data privacy in designated market sectors, telemarketing regulations and case law developments.

Hinch Newman Selected to Author Consumer Protection Section of the Prestigious ALM FTC Law, Practice and Procedure Treatise

Federal Trade Commission

The FTC protects consumers and competition by preventing deceptive, unfair and anticompetitive business practices through law enforcement, advocacy and education.

The FTC is an independent agency that reports to the President and to Congress on its actions.  These actions include pursuing law enforcement; developing policy and research tools through hearings, workshops, and conferences; and creating educational programs and materials for consumers and businesses.

FTC lawyers have consumer protection and competition jurisdiction in broad economic sectors.  They administer a variety of laws, such as the Federal Trade Commission Act, the Fair Credit Reporting Act and the Clayton Act.  The FTC also enforces rules issued pursuant to the Federal Trade Commission Act or other laws, including the Business Opportunity Rule and the Telemarketing Sales Rule.

Why the FTC was Created

The FTC seeks to maintain a competitive marketplace for both consumers and businesses.  The Federal Trade Commission was created in 1914 to prevent unfair methods of competition in commerce.  Congress has since passed additional laws giving the agency greater authority over anticompetitive practices.

Recognizing that unfair and deceptive practices can distort a competitive marketplace as much as unfair methods of competition, in 1938 Congress amended the FTC Act and granted the FTC authority to stop “unfair or deceptive acts or practices in or affecting commerce.”  The FTC is also directed to enforce a wide variety of other consumer protection laws and regulations.

The FTC is headed by a five-member Commission, nominated by the President and confirmed by the Senate, each serving a staggered 7-year term.  The President chooses one commissioner to act as Chair. No more than three commissioners may be from the same political party.

The FTC’s Mission and Strategic Plan

The FTC focuses on investigating and litigating cases that cause or are likely to cause substantial injury to consumers.  This can include more than just monetary injury.  It can also include, for example, unwarranted health and safety risks.  The FTC’s mission is carried out by the Bureau of Consumer Protection, the Bureau of Competition and the Bureau of Economics.

The FTC’s strategic goals are to protect consumers from unfair and deceptive practices in the marketplace; maintain competition to promote a marketplace free from anticompetitive mergers, business practices, or public policy outcomes; and advance the FTC’s performance through excellence in managing resources, human capital, and information technology.

The Federal Trade Commission recently published its fiscal years 2018 to 2022 strategic plan. The road map that will guide the agency over the next five years. The plan will enable the FTC to gauge its success in protecting consumers, maintaining competition, and advancing its organizational performance.

The FTC updated its mission statement to reflect better the FTC’s active role in consumer protection and competition law enforcement, advocacy and education efforts on behalf of American consumers and businesses. The Commission has also expanded its goal to further information and technology management as critical support functions at the FTC.

The FTC's primary objectives include the following:

  • Identify and take actions to address deceptive or unfair practices that harm consumers
  • Provide consumers and businesses with knowledge and tools that provide guid­ance and prevent harm
  • Collaborate with domestic and international partners to enhance consumer protection
  • Maintain competition to promote a marketplace free from anticompetitive mergers and business practices
  • Manage resources, human capital and information technology

How the FTC Works

While the FTC does not often openly disclose why or when it began an investigation, there are several common triggers, including:

  • Direct findings
  • Consumer complaints
  • News articles
  • Advocacy group requests
  • NAD recommendations
  • Competitor requests

The FTC constantly monitors claims made across all media channels.  In addition, consumers often submit complaints directly to the FTC, to state Attorneys General, to local Better Business Bureaus and via social media.  The Commission also keeps a close watch on reports on news outlets for unlawful marketing practices.

The National Advertising Division of the Council of Better Business Bureaus (NAD) initiates reviews and conducts reviews in response to consumer or competitor complaints.  If an advertiser refuses to participate or to comply with an NAD decision, the matter can be referred to the FTC.

Depending upon how egregious the allegations are, any one of the foregoing can result in the identification of an investigation target. Companies should consult with an FTC consumer protection investigations and enforcement law firm to monitor the foregoing and take proactive measures to minimize the likelihood of being investigated.

How the FTC Enforces the Law

The FTC often evaluates whether enforcement activities are tracking the areas of greatest concern and whether there are new practices or technologies that require additional law enforcement.  The FTC’s Bureau of Consumer Protection, with the support of the Bureau of Economics, investigates cases and initiates civil enforcement actions, in the past primarily by filing actions in federal court pursuant to FTC Act Section 13(b), when there is reason to believe that entities have violated these laws and rules.  The FTC’s enforcement actions seek injunctions and other relief.  The FTC also brings enforcement actions via administrative proceedings.

If the FTC makes the decision to litigate, it can initiate action in federal court or bring an administrative action.  With various exceptions, if the FTC proceeds to federal court to pursue an enforcement action against you or your company, it may take the following actions:

  • Enjoin violations of the FTC Act, and secure other equitable relief such as restitution and disgorgement of “ill-gotten” gains
  • Serve you with a complaint and temporary restraining order
  • Immediately freeze corporate and personal assets
  • Gain immediate access to business premises
  • Appoint a temporary receiver to take over corporate assets and operations

Unlike the provisions of the FTC Act that permit the FTC to seek monetary relief for violations of a cease and desist order, dishonest or fraudulent acts or practices, or knowing violations of promulgated rules, the plain text of Section 13(b) permits the issuance of injunctive relief.  Despite the FTC’s ability for decades to also pursue and obtain “ancillary equitable relief,” at least on its face, Section 13(b) does not permit the FTC to recover restitution, disgorgement, or other forms of equitable monetary relief.

Thus, in July 2020, the U.S. Supreme Court granted certiorari and consolidated two cases that call into question the FTC’s authority to seek equitable monetary relief directly in federal court in Section 13(b) cases, even before any administrative adjudication has occurred, and even in the absence of any rule violation.  The Supreme Court’s resolution of these cases pertaining to the scope of the FTC’s authority under Section 13(b) during the 2020-2021 has partially eliminate one of the agency’s most important and effective enforcement tools.  The ruling has had a profound and significant policy implications for the FTC and strategic implications for the advertisers and marketers that it regulates.

The agency has traditionally possessed extremely broad powers that have severely impacted defendants’ ability to provide for basic necessities and compensate employees, suddenly and without warning.  Such powers result from the FTC’s use of ex parte proceedings, held without prior notice in federal district courts to obtain temporary restraining orders (TROs) imposing asset freezes and temporary receiverships in cases of alleged consumer fraud.

The agency often names relief defendants in order to protect ill-gotten funds or assets as a result of the conduct of the other defendants.  In a federal lawsuit, the FTC can seek injunctive relief, civil penalties of more than $50,000 per violation of the FTC Act and restitution.

Contact experienced FTC attorneys to discuss sophisticated settlement and litigation strategies designed to rebuke FTC efforts to obtain monetary relief.

FTC Statutes and Regulations

The FTC enforces federal consumer protection laws that prevent fraud, deception and unfair business practices, including the Federal Trade Commission Act.  The FTC also enforces federal antitrust laws.

Consumer laws enforced by the FTC include, but are not limited to the following.

  • The Federal Trade Commission Act (15 U.S.C. §§ 41-58, as amended)
  • Inform Consumers Act (15 U.S.C. § 45f)
  • Covid-19 Consumer Protection Act
  • CAN-SPAM Act (15 U.S.C §§ 7701-7713)
  • Consumer Review Fairness Act (15 U.S.C. § 45b)
  • Truth in Lending Act (15 U.S.C. §§ 1601-1667f, as amended)
  • Fair Debt Collection Practices Act (15 U.S.C. §§ 1692-1692p)
  • Equal Credit Opportunity Act (15 U.S.C. §§ 1691-1691f)
  • Electronic Fund Transfer Act (15 U.S.C. §§ 1693-1693r)
  • Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681x)
  • Restore Online Shoppers’ Confidence Act (15 U.S.C. §§ 8401-8405)
  • U.S. SAFE Web Act
  • Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506)
  • Better Online Ticket Sales Act (15 U.S.C. § 45c)
  • Gramm-Leach-Bliley Act
  • Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. §§ 6101-6108)
  • Opioid Addiction Recovery Fraud and Prevention Act of 2018

What are FTC Warning Letters?

FTC Warning Letters may be public and are intended to warn companies that their conduct may be in violation of the FTC Act, and that legal consequences may follow if the conduct is not immediately ceased.  Consult with experienced FTC defense practice counsel if your company has received an FTC warning letter in order to discuss correcting non-compliant advertising activities.

Warning letters are not formal enforcement actions.  They may or may not be followed by FTC legal action.  Warning letters typically include an explanation of why the company is receiving the letter and examples of problematic advertising or marketing language.

Warning letter recipients are required to correct the problem immediately and contact the FTC within several days to confirm that they have made the required changes.  Warning letters may be sent unilaterally or jointly with other enforcement agencies.

FTC Penalty Offense Notices

The FTC is empowered to obtain penalties for unfair or deceptive conduct via the Penalty Offense Authority, found in Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. §45(m)(1)(B).  Here, the FTC can seek civil penalties if it establishes that the party knew the conduct was unfair or deceptive in violation of the FTC Act, and the FTC had already issued a written decision that such conduct is unfair or deceptive.

In order to trigger this authority, the FTC sends companies a “Notice of Penalty Offenses.”  This Notice is a document listing certain types of conduct that the FTC has determined, in one or more administrative orders - other than a consent order, to be unfair or deceptive in violation of the FTC Act.  Recipients of this notice that continue to engage in prohibited practices can face civil penalties of more than $50,000, per violation.

The FTC asserts that recipients of "Notices of Penalty Offenses" have actual knowledge that the practice is unfair or deceptive in violation of the FTC Act, and if they engage in the practice, the FTC can seek civil penalties against them.  Contact an experienced FTC defense lawyer if you or your company have received a Penalty Offense Notice.

Some recently distributed notices and the administrative determinations cited in Penalty Office Notices include, but are not limited to, penalty offenses concerning misuse of information collected in confidential contexts, penalty offenses concerning substantiation, penalty offenses concerning money-making opportunities, penalty offenses concerning endorsements, penalty offenses concerning business opportunities, and penalty offenses concerning weight loss.

Criminal Liaison Unit

The FTC’s Criminal Liaison Unit exists in order to assist prosecutors bring more criminal consumer fraud cases.

FTC civil enforcement actions target fraud and, without limitation, seek restitution for consumers or disgorgement to the U.S. Treasury, and often civil penalties.

Examples of FTC fraud cases include:

  • telemarketing scams
  • mortgage and other debt relief scams
  • bogus health products

In many cases, the FTC develops evidence that establishes defendants knew about the fraud. That evidence often supports criminal fraud prosecutions and includes:

  • victim statements
  • undercover sales calls and purchases
  • certified bank, business and phone records
  • insider testimony

FTC attorneys often partners with the U.S. Department of Justice, U.S. Attorneys and other federal and state criminal law enforcers to stop consumer fraud.

FTC lawyers:

  • work cases in parallel proceedings
  • package cases for referrals to different agencies
  • train prosecutors and investigators on identifying suspects and witnesses using the  Consumer Sentinel Network

FTC Defense Lawyer to Advise on How Recent Supreme Court Decisions Have Reshaped the FTC's Enforcement Power

In 2021, the U.S. Supreme Court held that Section 13(b) of the FTC Act does not authorize the Federal Trade Commission to seek monetary relief in the form of restitution or disgorgement, despite the agency’s previous practice of seeking such relief.  The opinion has dramatically reshapes the FTC’s ability for obtaining monetary judgments from defendants.  Since the decision, FTC attorneys have  turned to Section 19 of the FTC Act as in order to obtain monetary remedies, along with the issuance of penalty offense notices and rulemaking that authorizes civil penalties.

Consult with an experienced FTC defense attorney to discuss what the recent Supreme Court does and does not impact.  For example, it does not affect the FTC's ability to obtain civil penalties for violation of an existing order, or statutes it enforces other than the FTC Act.  Following the ruling, the FTC invoked additional authorities in order to obtain civil penalties, including, but not limited to, the BOTS Act and the Red Flags Rule under the Fair Credit Reporting Act, and an expanded interpretation of the Restore Online Shoppers Confidence Act.

FTC Administrative Actions and Rulemaking

The administrative proceeding means of FTC enforcement provides the FTC with a narrow right to recover monetary relief in federal court.

An FTC administrative proceeding is, practically speaking, an expedited court proceeding that provides hurdles with respect to FTC’s ability to seek monetary relief.  The FTC is only permitted to seek injunctive relief in an administrative proceeding.  Following abbreviated motion practice and discovery, there is an evidentiary hearing and a substantive evaluation by an administrative law judge.  The ALJ then renders a decision which can be appealed.

The FTC is authorized to bring such an “internal enforcement action” before an ALJ, who can issue a “cease and desist” order.  If the “respondent” violates the cease and desist order, the FTC may initiate a lawsuit in federal court under Section 19 of the FTC Act to enforce the order and pursue civil equitable monetary relief.  In addition, in consumer protection cases, the FTC can seek monetary relief in federal court under FTC Act Section 19 for the original conduct, but only if “a reasonable man would have known under the circumstances that the conduct was dishonest or fraudulent,” and only after it has issued a cease and desist order that has become final.  These actions are subject to a three-year statute of limitations and, while FTC administrative consent orders do not usually contain monetary penalties, they carry the potential for fines of more than $50,000 per violation.

Both of those paths require the FTC to complete the administrative enforcement process prior to initiating a lawsuit in federal court seeking monetary relief.

Additionally and in lieu of relying solely on actions against individual respondents to determine that practices are unfair or deceptive, the FTC may use trade regulation rules to address unfair or deceptive practices that occur commonly.  The FTC is authorized to prescribe “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce” within the meaning of Section 5(a)(1) of the Act.  Before commencing a rulemaking proceeding, the Commission must have reason to believe that the practices to be addressed by the rulemaking are “prevalent.”

Once the FTC has undergone the arduous formal trade regulation rulemaking process, anyone who violates the rule “with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule” is liable for civil penalties for each violation.  The FTC obtains such penalties by filing a suit in federal district court under Section 5 of the FTC Act.

In addition, any person who violates a rule (irrespective of the state of knowledge) is liable for injury caused to consumers by the rule violation.  In addition to being able to seek redress under Section 13(b), as discussed above, the FTC may pursue such recovery in a suit for consumer redress under Section 19 of the FTC Act.

The above means of enforcement provide the FTC with a narrow right to recover monetary relief in federal court.  In the case of administrative proceedings, the FTC may seek to enforce a cease and desist order in federal court, but only after the FTC has completed the administrative enforcement process and a cease and desist order has issued.  In the rulemaking context, the conduct at issue must violate a specific FTC-prescribed rule.

Given these practical limitations, the FTC has historically relied heavily on the third means by which the FTC carries out its enforcement policy and priorities, Section 13(b) of the FTC Act. Section 13(b) has, until recently, provided the FTC with expansive authority to file suit in federal court in consumer protection matters in pursuit of both injunctive relief and “equitable monetary relief” such as restitution, disgorgement and rescission of contracts, where the defendant “is violating, or is about to violate,” the law and enforcement would be in the public interest.

The Supreme Court has now severely limited the FTC's ability to seek monetary relief in federal court.  The FTC has recently lost a valuable tool in its remedial arsonal, Section 13(b) of the FTC Act which the agency used to use to proceed quickly into federal court to seek monetary relief.

FTC Administrative Law Judges

The appointment of an ALJ is governed by statute.  They are authorized by the Administrative Procedure Act to preside over agency adjudicatory hearings.  The Administrative Procedure Act requires that adjudicatory proceedings be conducted in an impartial manner and that an administrative law judge may at any time disqualify himself or herself.

A party in a proceeding may file a motion to disqualify an ALJ along with an affidavit setting forth the grounds for the motion.  Grounds for such a motion may include, without limitation, that the ALJ’s prior employment involved him or her in the case or in a related case in an investigational or prosecutorial capacity.  The burden of establishing grounds for disqualification falls on the party asserting it.

FTC lawyers have delegated to its administrative law judges the initial performance of its “adjudicative fact-finding functions.”  ALJ's have specific powers pursuant to the Administrative Procedure Act and the FTC’s Rules of Practice, including, but not limited to, administering oaths and affirmations, issuing subpoenas, authorizing interrogatories, taking or ordering depositions, compelling admissions, ruling on offers of proof, receiving evidence, regulating the course of hearings and the conduct of the parties/counsel, holding settlement conferences, ruling on procedural and other motions, making and filing decisions, certify question to the FTC for its determination, and rejecting submissions or requests for in camera treatment.  ALJ's are also authorized to take any other actions authorized by the FTC rules or in conformance with the Administrative Procedure Act.

Basically, administrative law judges have broad authority to conduct initial fact finding for the FTC and to use this discretion in the conduct of pre-trial proceedings and trial.  The exercise of such discretion is only disturbed upon a showing of an abuse of discretion.

Should FTC practice attorneys refuse to comply with the directions of an ALJ or are found to have engaged in disorderly, dilatory, obstructionist or willfully disobedient conduct, an ALJ may suspend or bar such FTC lawyers from further participation in the proceeding.

How the FTC Uses Civil Investigation Demands (CIDs)

If your company receives a civil investigation demand, contact an FTC defense lawyer promptly because it means that the FTC is investigating unfair or deceptive acts or practices in anticipation of initiating an enforcement action.  A civil investigative demand (CID) is similar to a subpoena and carries significant enforceable weight, including the ability of the FTC to petition a court to enter an order compelling compliance.

CIDs first go to the bureau chief and then to a commissioner’s office for approval.  If you received one, it is not an accident. However, while a plain reading of the CID may not make it clear, do not automatically assume that you are the target.  If you receive a civil investigation demand, it is possible that you may simply be a third-party with information that the agency is interested in obtaining.

Civil investigative demands can be used to seek documents, written responses to questions and oral testimony.  CIDs often seek information pertaining to:

  • Advertising and marketing campaigns
  • Relationship or affiliation with third-parties
  • Relevant documents and communications, including those with third-party marketers
  • Claim substantiation
  • Representations and disclosures made on websites
  • Website and marketing agreements
  • Refund policies or practices, including those about any continuity program or negative option
  • Scripts and call recordings
  • Marketing, sale and transfer of leads
  • Lead qualification criteria
  • Evaluation and monitoring of lead sources and buyers
  • Products and services provided by lead buyers
  • Policies, manuals and training materials
  • Data security protocols and policies
  • Data use restrictions
  • Corporate organization charts, documents and information
  • Business plans, balance sheets and income statements
  • Consumer inquiries and complaints
  • Bank account information
  • Refunds, returns and chargebacks
  • Federal, state and local law enforcement or government investigations, inquiries and actions
  • Compliance with applicable federal laws, rules and regulations

CIDs require that recipients suspend any routine procedures for document destruction and take other measures to prevent the destruction of documents. Ensure that all documents and communications are preserved.  Time is of the essence as there is typically a quick return date and often very little time to formally challenge a CID.

Civil investigative demands can be broad-sweeping and invasive.  Proactively assessing what practices or relationships may have resulted in the investigation, implementing remedial measures and mounting a deliberate and persuasive response are critical.

The strength of the firm’s FTC CID investigation defense practice is its in-depth digital marketing industry knowledge and focus, professional leadership, ability to manage complex legal issues, attentiveness to time sensitive business matters, consistent delivery of positive results, innovative advice, diverse experience and familiarity with internal regulatory processes, all of which provide us with unique insights into understanding our clients’ businesses and allocating resources in a cost-efficient manner with the aim of investigation closure. 

Responses by an experienced FTC CID attorney should be strategic, persuasively advocate the appropriate position, set forth why the marketing or advertising claims in question are not misleading (e.g., substantiated), and why the company has not engaged in any wrongdoing. Depending upon the circumstances, it may be appropriate to request an meeting with an FTC attorney, the Director of the Bureau of Consumer Protection, FTC Commissioners or other FTC staff.

What are FTC Access Letters?

The FTC often contacts target companies to request information as part of an investigation.  CIDs are formal, compulsory information requests.  Access letters are informal requests.  Access letters typically come from an FTC staff attorney and set forth a general statement that the agency is conducting an investigation in order to assess whether the practices violates a statute or regulation.  Details about the investigation are not always disclosed.  Access leters seek voluntary compliance while the FTC determines whether or not to initiate a formal investigation.  The are often considered to be part of a "waiting period."

FTC Defense Lawyer With a National Reputation

Richard is an award-winning, industry leading FTC defense lawyer and regulatory defense attorney whose practice is uniquely focused upon assisting leading advertisers, affiliate networks, publishers, advertising agencies, lead generators, lead aggregators, list managers, email marketers, telemarketers and technology businesses effectively and efficiently resolve contentious FTC investigations and enforcement actions.  The breadth of Richard’s superior grasp of the complex regulatory challenges and regimes facing the online advertising industry enables him to bring a broad perspective and knowledge to Federal Trade Commission matters, including the development of tactics needed to defend against agency actions and to secure advantageous outcomes.

He has successfully defended companies and individuals facing regulatory enforcement actions to minimize liability for conduct that violates the FTC Act and other laws and regulations enforced by the agency, modified broad-sweeping asset freezes, obtained necessary living expenses and attorneys’ fees, negotiated favorable settlement terms, modified compliance and monitoring requirements, and secured partially suspended judgments for a fraction of the total amount of alleged consumer injury and totally suspended $0 settlements.

When the FTC oversteps its authority, Richard is a formidable advocate in litigation, able to swiftly develop affirmative and aggressive strategies that are aligned with his clients’ business objectives.  His credibility with the Commission as an effective negotiator and consensus builder is a distinct benefit to his clients when obtaining an equitable early resolution is preferred.  Richard's excellent working relationships with the state and federal agencies regulating the Internet marketing industry help facilitate discussions that can be crucial to resolving enforcement actions amicably.

FTC defense attorney Richard Newman is also well positioned to guide advertisers and marketers through the minefield of FTC investigations. He possesses the talent and experience to develop win-win solutions that reduce the burden for those faced with a CID.  As a result of this experience, he brings unique perspective when counseling clients and finding creative solutions to complicated problems, including narrowing the scope of civil investigative demands, negotiating favorable production schedules and, in some instances, securing the amicable and outright closure of investigations with the goal of avoiding the initiation of enforcement proceedings altogether.

  • Analyzing the facts, evidence and law
  • Analyzing response tactics and defenses
  • Preparing thoughtful, persuasive and analytical substantive responses aimed at disposing of the investigation and mitigating potential exposure
  • Evaluating implications of responses
  • Obtaining an extension of the return date
  • Negotiating the scope of the CID, a “rolling” production schedule and other substantive and procedural matters
  • Determining the substantive claims at issue and implementing corrective measures
  • Assessing the scope of responsive documents and information in the company’s control
  • Engaging in technical discussions with agency staff
  • Preparing witnesses for investigational hearings
  • Negotiating amicable investigation closure or settlement
FTC Defense Lawyer Richard B. Newman on Inside Edition

Digital marketers, tech companies, legal professionals, consumer protection agencies, lawmakers, politicians, and national and international news outlets such as BBC World News call and rely upon Richard Newman for legal regulatory compliance programs, first class government enforcement action and investigation defense, and featured commentary and poignant analysis on advertising, marketing and media.  He is recognized within the industry as a leading Internet marketing and regulatory defense lawyer and is frequently in the news as a columnist for publications such as National Law Review, Leading Internet Case Law, Data Protection Leader, Digital Business Lawyer, MarketingProfs, JDSupra, Law360 and Privacy Law Bulletin on a variety of regulatory issues related to the risks and liabilities in the Internet marketing industry.

Richard has also presented a live webinar for a legal education provider recognized by the National Law Journal.  Topics that he explored include an examination of recent developments in advertising and marketing regulation, social media marketing, factors that often trigger FTC investigations, and how to develop and implement compliance best practices. Segments of the webinar can be viewed here.

The breadth of Richard’s skills and experience sets him apart from other FTC defense lawyers and enables him to successfully assist clients to navigate CID responses in a practical and thoughtful manner, and to limit the potential disruption and cost of compliance.

Having Asset Freezes Modified and Securing Zero Dollar Settlements

FTC defense lawyer Richard Newman's solid relationships with regulatory agencies enables him to regularly negotiate asset freeze modifications with FTC staff to cover necessary living expenses and attorneys' fees, and secure the exemption of assets from compromise terms, including, but not limited to, homes, automobiles, insurance policies, retirement accounts and personal belongings whenever possible.  When amicable negotiation is not an option, Richard has successfully petitioned the court for modification of asset freeze orders.

The firm has also delivered numerous zero dollar settlements with favorably modified reporting requirements, and totally suspended judgments on behalf of numerous clients, based upon the truthfulness of asset disclosure forms.

Comprehensive Advice and Advocacy

The Federal Trade Commission has developed a reputation for its aggressive investigation and litigation tactics.  That is where FTC defense lawyer Richard B. Newman can help.  He has extensive experience assisting marketers with the complexities of regulatory matters, litigation defense, investigative inquiries and compliance counseling.

Richard possesses extraordinary perspective gained from many years litigating and defending a broad spectrum of industry-specific, technology-centric government-plaintiff enforcement matters, investigations and civil contempt actions for the violation of court ordered injunctions.

His extensive experience within the affiliate marketing space and knowledge of cutting-edge advertising, lead generation, privacy, data brokerage, telemarketing, mobile marketing, email marketing and social media issues are a significant benefit to his clients.  He has also provided industry-specific views to governmental agencies.

As a regulatory compliance, investigation and defense attorney, Richard is committed to achieving the most beneficial outcomes for his clients.  Today’s regulatory environment is pro-consumer and pro-enforcement.  An advocate with concentrated, industry-specific experience is vital when dealing with the Federal Trade Commission.

FTC Defense Lawyer With a Broad Client Base and Diverse Practice Areas

FTC defense attorney Richard Newman consistently delivers comprehensive legal counsel that emphasizes risk analysis and sound business practices for corporations involved in advertising and marketing.  He provides legal advice and regulatory advocacy regarding issues involving advertising and marketing, privacy, data security and electronic commerce to a broad base of clients that include providers and marketers of products and services across numerous industries, from dietary supplements to receivables management.

An authority on a range of issues involving consumer protection law, Richard concentrates his practice on defending highly-charged advertising and marketing proceedings so his clients can promote their brands.  He has successfully defended clients in private commercial litigation matters in federal and state courts, as well as in arbitration and mediation forums, and complex bet-the-company government proceedings and investigations conducted by the Federal Trade Commission and state Attorneys General, including:

  • Advertisers
  • Manufacturers of dietary supplements
  • Affiliate and pay-per-call networks
  • Publishers and lead generators
  • Payment processors
  • Advertising agencies and exchanges
  • Lead aggregators
  • List managers
  • Email marketers, telemarketers and call centers
  • Debt relief service providers and debt collection companies
  • Online education and business coaching providers
  • Health clubs
  • Consumer credit companies
  • Technology service providers

A substantial portion of Richard’s work also involves conducting preventative FTC advertising compliance reviews of marketing campaigns and promotional programs, and advising digital media clients on consumer protection issues.  He works closely with clients to proactively design and implement customized internal compliance processes that meet business objectives and government expectations.

Notably, Richard has litigated the issue of whether the FTC possesses the ability to seek disgorgement, at all.  He is also a member of the Compliance Counsel of the Performance Marketing Association, a trade association representing the performance marketing industry.

Richard serves as outside general counsel to numerous clients throughout the United States.  He is a partner in the law firm of Hinch Newman LLP.  His law firm website is hinchnewman.com, where you can obtain a free consultation on most legal matters.

Award-Winning FTC Attorney

Richard's core practice area is Federal Trade Commission compliance and Internet marketing law.  As an FTC attorney that regulatory practices before local, state and federal regulatory agencies, he is dedicated to developing and implementing successful defense strategies for clients.
In 2019, 2020 and 2021 Richard was recognized as a National Law Review Go-To Thought Leader for his coverage of the FTC, including enforcement, CID investigations, Made in the USA requirements, products containing cannabidiol (CBD) advertising, the Restore Online Shoppers’ Confidence Act (ROSCA), Children's Online Protection Act (COPPA),  Telephone Consumer Protection Act  (TCPA) and various state cybersecurity laws.  The awards recognize the unique talents of less than 1% of the publication’s 15,000 thought leaders and spotlights exceptional legal authors selected from a pool of over 100,000 news articles.

FTC Defense With Concentrated Lead Generation and Digital Marketing Skill Set

Mr. Newman’s concentrated skill set and digital marketing industry experience, coupled with the various business models and technologies that it is comprised of, is an invaluable asset if a state or federal regulatory agency has commenced an investigation or enforcement action against those in the lead generation or other performance marketing ecosystems due to unfair or deceptive acts or practices.

This experience and Mr. Newman’s zealous style of advocacy is what sets Hinch Newman LLP apart, as further illustrated by Mr. Newman’s selection to author the consumer protection section of the ALM FTC Law, Practice and Procedure Treatise.

Lead generation has become increasingly more complex and the firm’s knowledge of the applicable legal regulations and guidelines, such as the TCPA, the Telemarketing Sales Rule, the Business Opportunity Rule, email marketing laws, the use of endorsements and earnings claims, and state laws  distinguishes Mr. Newman from other FTC defense lawyers.

FTC attorneys often alleged that a lead generator’s activities are "deceptive" if they make false claims in order to induce consumers to provide their personal information, including the nature of the offer, who is making the offer, how consumer data will be used/disseminated or about the security of the data that it collects.  FTC lawyers also often allege that a lead generator’s practices are "unfair" if a consumer’s personal information is used or shared without proper knowledge or consent, or if such information is not used for a legitimate, reasonably anticipated purpose.

Richard Newman possesses the intellectual subject matter depth and tenacity necessary to obtain optimal outcomes in the most complex and contentious FTC investigations, enforcement actions and administrative proceedings.  His digital marketing clientele drive technology change and are leaders and trendsetters in the digital marketing industry, including lead generators, lead buyers and telemarketers.

Mr. Newman is a recognized authority in the digital marketing, lead generation, telemarketing, regulatory compliance and defense, and eCommerce industries.  He has a long history of excellence in the field efficiently and cost-effectively defending and resolving aggressive government agency actions.

Distinct Benefit and Tech-Savvy

Richard's technology and digital advertising acumen enables him to confer with general counsel and chief information officers about issues pertaining to the privacy and security of information. As a result, Richard also assists clients facing the gamut of privacy and data breach incident-related litigation, compliance and regulatory counseling matters, and internal investigation challenges to traverse a complex web of state and federal requirements.

From children’s privacy to the international transfer of data, data protection is driven by data security. Richard advises leading technology businesses regarding the development and implementation of sound security plans, honoring privacy claims, and properly maintaining and disposing of sensitive personal information about consumers.

The firm serves as outside "inside" counsel to advertisers, advertising networks, affiliate networks, publishers, lead generators, lead aggregators, lead purchasers, creative entrepreneurs and innovative business organizations.  Richard is able to provide practical business-oriented advice that meets specific clients’ business-growth objectives.  Through is experience, Richard possesses a distinct combination of skills, including an ability to seamlessly transition from various transactional and litigation roles involving digital advertising, regulatory compliance and defense, Internet law, ecommerce, intellectual property and new media,  This results in an ability to handle complex matters at a competitive fee, and superior efficiencies for clients that prefer to avoid being billed by multiple lawyers for legal work that can be performed competently by one single digital advertising savvy attorney, managing multiple outside counsel relationships and educating numerous attorneys about the unique digital advertising and marketing business models and operations.

With hands-on experience dealing with regulators such as the FTC’s Division of Privacy and Identity Protection, who themselves often struggle to determine a framework for tech platforms and when intervention may be warranted, Richard is well-versed in the agency’s privacy and data security enforcement policies, including those pertaining to mobile device and computer monitoring applications and services. Privacy and cybersecurity laws are continually evolving and even the most well-meaning company can inadvertently get tripped-up when it comes to capturing, using and transferring personal information. Ensuring regulatory and legal compliance, including data breach preparedness and response, are critical to mitigate liability exposure and unwanted media attention.

Richard’s straightforward approach and experience are particularly valued by those that operate in highly-regulated areas and those with an online presence. His clients appreciate the timely and realistic advice that Richard provides, as well as his understanding that the effective protection and management of information is at the heart of well-functioning online marketing and technology businesses. This knowledge, coupled with familiarity of recent law enforcement actions and closed investigations, allows him to better understand his clients' products and services, find methods to minimize legal risk and effectively advocate on their behalf to regulators.

Admissions

Richard is a member of the State Bars of California, New York, Nevada and the District of Columbia, the District Courts for the Northern, Central and Southern District of California, the Southern District of New York and the District of Nevada. He is also admitted to practice in the United States Court of Appeals for the Federal Circuit.

He is a member of the Internet Law Leadership Summit, an international organization of leading lawyers with expertise in Internet law.  He is also a member of the Performance-Driven Marketing Institute, the International Association of Privacy Professionals and the Performance Marketing Association’s Compliance Council, on whose behalf he has authored authoritative online marketing compliance.

Frequently Asked Questions (FAQs)

  • How Can an FTC Defense Lawyer Help Marketers and Advertisers?

    An FTC defense lawyer defends advertisers and marketers against Federal Trade Commission or state attorneys general civil investigative demands (CIDs), subpoenas and regulatory enforcement actions.  FTC defense lawyers also assists marketers with regulatory compliance issues in order to mitigate potential liability exposure.  

  • Why is Extensive Experience Successfully Representing High-Profile Companies in a Broad Spectrum of Regulatory Matters so Important When Selecting the Right FTC Defense Attorney?

    Richard B. Newman of Hinch Newman LLP leverages close to two decades  of regulatory investigation, defense and advertising compliance experience to design and implement optimal representation strategies for clientele.  He possesses a solid track record of advising clients on complex and cutting-edge legal regulatory consumer protection-related issues, including, but not limited to, advertising law, data privacy, lead generation, telemarketing, email marketing, eCommerce, tech, performance marketing and social media marketing.

  • How do Richard B. Newman and Hinch Newman LLP Provide a Competitive Legal Representation Advantage for Marketers Under FTC Scrutiny?

    The performance marketing legal regulatory environment has become increasingly more challenging as new legal regulations and rules are promulgated.  Richard B. Newman is one of the most highly recognized and respected digital media attorneys the United States, in part, because he possesses a comprehensive understanding of the unique risks facing digital marketers which, in turn, enables him to find winning strategies and solutions to complex challenges.

    Importantly, Mr. Newman is focused on performance marketing and advertising law and does not split his focus across numerous fields of law that may have little to no importance in the context of governmental investigations and enforcement actions.  The firm's core areas of practice allow it to assist clients successfully and economically navigate complex and rapidly changing federal and states legal regulations and best practices.

  • What is the FTC Consumer Protection Investigation Process and Authority?

    The FTC may “prosecute any inquiry necessary to its duties in any part of the United States,” FTC Act Sec. 3, 15 U.S.C. Sec. 43, and is authorized “to gather and compile information concerning, and to investigate from time to time the organization, business, conduct, practices, and management of any person, partnership, or corporation engaged in or whose business affects commerce, excepting banks, savings and loan institutions . . . Federal credit unions . . . and common carriers . . .” FTC Act Sec. 6(a), 15 U.S.C. Sec. 46(a).

    Pre-complaint investigations are generally non-public.  However, FTC  policies may allow identification of investigations where the Commission determines the public interest warrants it or a merging party or target has disclosed the existence of the investigation.

    The FTC's specific investigative powers are defined in Sections 6, 9, and 20 of the FTC Act, 15 U.S.C. Secs. 46, 49, and 57b-1, which authorize investigations and various forms of compulsory process. 

    Section 9 of the FTC Act authorizes the FTC to “require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation.” 15 U.S.C. Sec. 49.  

    If a party fails to comply with a subpoena, the FTC may seek enforcement of the subpoena in “[a]ny of the district courts of the United States within the jurisdiction of which such inquiry is carried on.” 15 U.S.C. Sec. 49.  After the FTC files its petition to enforce a subpoena, and following receipt of any response from the subpoena recipient, the court may enter an order requiring compliance.  Refusal to comply with a court enforcement order is subject to penalties for contempt of court.

    The Bureau of Competition routinely uses the subpoena provisions of Section 9 to investigate alleged unfair methods of competition.

    The Bureau of Consumer Protection may use only CIDs, rather than subpoenas, to investigate possible “unfair or deceptive acts or practices.” FTC Act Sec. 20, 15 U.S.C. Sec. 57b-1.  The scope of a CID is different from that of a subpoena.

    Both subpoenas and CIDs may be used to obtain existing documents or verbal testimony.  However, a CID may also require that the recipient “file written reports or answers to questions.” 15 U.S.C. Sec. 57b-1(c)(1).  In addition, Section 20 expressly authorizes the issuance of CIDs requiring the production of tangible things and provides for service of CIDs upon entities not found within the territorial jurisdiction of any court of the United States. 15 U.S.C. Sec. 57b-1(c)(7)(B).

    Under Commission Rule 2.10, 16 C.F.R. Sec. 2.10, a party may raise objections to a subpoena or a CID by filing a petition to quash.  The FTC may seek federal district court intervention to enforce the subpoena or CID in the event of non-compliance.

    Section 6(f) authorizes the FTC to share confidential information with other appropriate enforcement agencies, subject to appropriate limitations and confidentiality assurances.  This allows the FTC and other law enforcers to cooperate and minimize duplication in investigations.

    Section 21, 15 U.S.C. Sec. 57b-2, establishes the conditions and procedures for confidential treatment of various types of materials and information obtained by the Commission.

  • What is the FTC Consumer Protection Litigation Enforcement Process and Authority?

    Following an investigation, the FTC may initiate an enforcement action using either an administrative or judicial process if it has “reason to believe” that the law is being or has been violated.  Violations of some laws may result in civil penalties, which are adjusted annually for inflation. Commission Rule 1.98, 16 C.F.R. Sec. 1.98.

    Section 5(a) of the FTC Act provides that “unfair or deceptive acts or practices in or affecting commerce . . . are . . . declared unlawful.” 15 U.S.C. Sec. 45(a)(1).  Safe Web clarified that “unfair or deceptive acts or practices” in Section 5(a) include such acts or practices involving foreign commerce that cause or are likely to cause reasonably foreseeable injury within the United States or involve material conduct occurring within the United States. 15 U.S.C. Sec. 45(a)(4)(A).

    “Deceptive” practices involve a material representation, omission or practice that is likely to mislead a consumer acting reasonably in the circumstances.  An act or practice is “unfair” if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” 15 U.S.C. Sec. 45(n).

    In addition, the FTC enforces a variety of other consumer protection statutes that prohibit specifically defined practices.  These laws generally specify that violations are to be treated as if they were “unfair or deceptive” acts or practices under Section 5(a).  

    In the administrative process, the FTC determines in an adjudicative proceeding whether a practice violates the law.  Under Section 5(b) of the FTC Act, the Federal Trade Commission may challenge “unfair or deceptive act[s] or practice[s],” “unfair methods of competition,” or violations of other laws enforced through the FTC Act, by instituting an administrative adjudication.

    When FTC lawyers have “reason to believe” that a law violation has occurred, FTC attorneys may issue a complaint setting forth its charges.  If the respondent elects to settle the charges, it may sign a consent agreement (without admitting liability), consent to entry of a final order, and waive all right to judicial review.  

    If the respondent elects to contest the charges, the complaint is adjudicated before an administrative law judge in a trial-type proceeding conducted under the FTC Rules of Practice.  

    Upon conclusion of the hearing, the ALJ issues an “initial decision” setting forth findings of fact and conclusions of law, and recommends either entry of an order to cease and desist or dismissal of the complaint.  Either complaint counsel or respondent, or both, may appeal the initial decision to the Federal Trade Commission. 

    Upon appeal of an initial decision, the FTC receives briefs, holds oral argument, and thereafter issues its own final decision and order.  The FTC's final decision is appealable by any respondent against which an order is issued.

    The respondent may file a petition for review with any United States court of appeals within whose jurisdiction the respondent resides or carries on business or where the challenged practice was used. FTC Act Section 5(c), 15 U.S.C. Sec. 45(c).  If the court of appeals affirms the FTC's order, the court enters its own order of enforcement.  The party losing in the court of appeals may seek review by the Supreme Court. 

    If a respondent violates a final order, it is liable for a civil penalty for each violation. FTC Act Section 5(l), 15 U.S.C. Sec. 45(l).  Civil penalties are assessed by a federal district court in a suit brought to enforce the FTC's order.  The court may also issue “mandatory injunctions” and “such other and further equitable relief” as is deemed appropriate.

    In addition (after all judicial review of its order is complete), FTC lawyers may seek consumer redress from the respondent in federal district court for consumer injury caused by the conduct that was at issue in the administrative proceeding.  In such lawsuits, the FTC must demonstrate that “a reasonable man would have known under the circumstances [that the conduct] was dishonest or fraudulent.”

    Where the FTC has determined in a litigated administrative adjudicatory proceeding that a practice is unfair or deceptive and has issued a final cease and desist order, FTC attorneys may obtain civil penalties from non-respondents who thereafter violate the standards articulated by the FTC.  To accomplish this, the Federal Trade Commission must establish that the violator had “actual knowledge that such act or practice is unfair or deceptive and is unlawful” under Section 5(a)(1) of the FTC Act. FTC Act Section 5(m)(1)(B), 15 U.S.C. Sec. 45(m)(1)(B).

    To prove “actual knowledge,” the FTC typically shows that it provided the violator with a copy of the FTC determination about the act or practice in question, or a “synopsis” thererof.

    Even where the FTC determines through adjudication that a practice violates consumer protection or competition law, the FTC must still seek the aid of a court to obtain civil penalties or consumer redress for violations of its orders to cease and desist or applicable rules.

    Under some circumstances, the FTC may be able to challenge a practice directly in court, without first making a final agency determination that the challenged conduct is unlawful.  Section 13(b) of the FTC Act, 15 U.S.C. Sec. 53(b), authorizes the FTC to seek preliminary and permanent injunctions to remedy “any provision of law enforced by the Federal Trade Commission.”  Whenever the FTC has “reason to believe” that any party “is violating, or is about to violate” a provision of law enforced by the FTC, the agency may ask the district court to enjoin the allegedly unlawful conduct, pending completion of an FTC administrative proceeding to determine whether the conduct is unlawful.  Additionally, “in proper cases,” the FTC may seek, and the court may grant, a permanent injunction.

  • What is the FTC Rulemaking Process and Authority?

    The FTC may use rulemaking to address unfair or deceptive practices that occur commonly, in lieu of relying solely on actions against individual respondents.

    The FTC’s rulemaking authority comes from Section 6(g) of the FTC Act, 15 U.S.C. Sec. 46, which authorizes the FTC “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.”

    In 1975, Section 18 of the FTC Act, 15 U.S.C. Sec. 57a, became the FTC's  exclusive authority for issuing rules with respect to unfair or deceptive acts or practices under the FTC Act;  

    Under Section 18 of the FTC Act, 15 U.S.C. Sec. 57a, the FTC is authorized to prescribe “rules which define with specificity acts or practices which are unfair or deceptive acts or practices in or affecting commerce” within the meaning of Section 5(a)(1) of the Act.

    Among other things, the statute requires that FTC rulemaking proceedings provide an opportunity for informal hearings at which interested parties are accorded limited rights of cross-examination.  Before commencing a rulemaking proceeding, the FTC must have reason to believe that the practices to be addressed by the rulemaking are “prevalent.” 15 U.S.C. Sec. 57a(b)(3).

    Once the FTC has promulgated a trade regulation rule, anyone who violates the rule “with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule” is liable for civil penalties for each violation.

    The FTC obtains such penalties by filing a suit in federal district court under Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. Sec. 45(m)(1)(A).  In addition, any person who violates a rule (irrespective of the state of knowledge) is liable for injury caused to consumers by the rule violation. The Commission may pursue such recovery in a suit for consumer redress under Section 19 of the FTC Act, 15 U.S.C. Sec. 57b.

    These procedures apply only to rules with respect to unfair or deceptive acts or practices promulgated under authority of the FTC Act.  In addition, various other statutes authorize Commission rulemaking; such rulemaking is typically promulgated in accordance with section 553 of title 5, United States Code.  These statutes generally provide that a violation is treated as a violation of the FTC Act, and often provide that a violation is treated as a violation of a trade regulation rule promulgated under FTC Act Section 18. Section 22 of the FTC Act, 15 U.S.C. Sec. 57b-3, contains procedural requirements that apply to the FTC's rules. 

Do not liaise with the Federal Trade Commission directly.  Contact an FTC defense attorney that concentrates exclusively on Internet marketing-related regulatory matters – all day, every day – to discuss your rights and obligations.

Representative Experience

The following are examples of select regulatory investigations and enforcement matters the firm has handled to successful resolution:

  • Represented developers of so-called mobile device and computer “stalking” apps in conjunction with a precedent-setting privacy and data security case brought by the Federal Trade Commission relating to such technologies. This first-ever investigation involved a number of cutting-edge, unsettled legal issues and was initiated by the FTC after a hacker was able to access the cloud storage account of the app developers. The FTC examined whether the Children’s Online Privacy Protection Act and/or Section 5 of the FTC Act had been violated. Drawing upon sophisticated knowledge of applicable advertising regulations, data privacy laws and FTC enforcement policy, the firm was able to successfully develop and implement a multi-faceted CID investigation defense strategy while productively liaising with a data security vulnerability penetration expert. As a result of these efforts, coupled with persuasive defense advocacy, this complex, highly-publicized investigation resulted in a non-monetary administrative settlement that avoided the initiation of enforcement proceedings.
  • Represented an online lead generator in conjunction with a Civil Investigative Demand (CID) issued by the Federal Trade Commission examining deceptive acts and practices in connection with listings, descriptions, reviews, ratings, comparisons or endorsements of, or referrals to, providers of health-related services in violation of Section 5 of the FTC Act. The firm successfully secured the prompt closure of the investigation with no monetary penalty.
  • Represented an affiliate network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with creation, sale and dissemination of online adult dating-related advertisements in violation of Section 5 of the FTC Act. The firm significantly narrowed the scope of the investigation without the FTC ultimately seeking any remedy.
  • Represented individuals and corporate defendants in a Federal Trade Commission lawsuit filed on the agency’s behalf by the Department of Justice alleging that the company and its telemarketer made illegal robocalls to consumers, including tens of millions of calls to numbers listed on the agency’s Do Not Call Registry. The firm successfully negotiated favorable settlement terms that included the exclusion of numerous physical assets and monetary relief that amounted to a fraction of damages sought by the FTC in civil penalties without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
  • Represented affiliate marketer in a Federal Trade Commission matter initiated by the Division of Marketing Practices alleging the existence of an online business coaching scheme that purportedly deceived consumers about money-making program potential. The FTC was prosecuting, in part, what it alleged to be unfounded income claims and violations of the FTC Act. The firm successfully negotiated favorable settlement terms, including no monetary payment, and reduced compliance monitoring and reporting requirements.
  • Represented a lead aggregator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether brokers, servicers and other marketers of products and services had engaged in acts or practices in violation of other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
  • Represented an online lead generator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether consumer brokers, servicers and the other marketers of products and services had engaged in acts or practices in violation of the MARS Rule, 12 U.S.C. § 5538, and other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
  • Represented a leading software development academy in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing or sale of secondary or post-secondary education products or services, or educational accreditation products or services in violation of Section 5 of the FTC Act. The firm successful secured the prompt closure of the investigation.
  • Represented leading industrial tool manufacturer in conjunction with an investigation initiated by the Federal Trade Commission examining the marking, advertising, labeling and other promotional activities relating to the use of unqualified domestic origin claims for products. The purpose of the investigation was to determine whether the company was engaged in unfair or deceptive acts or practices in violation of Section 5 of the FTC Act and the FTC’s enforcement policy with respect to the use of “Made in USA” claims in advertising and labeling. The firm worked with the client to implement a remedial action plan to update and qualify its representations and ensure that the company did not overstate the extent to which its products are made in the United States. As a result, the firm successfully secured the prompt closure of the investigation.
  • Represented owner of company in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining alleged false and unsubstantiated representations about the health-related benefits of dietary supplements in violation of Sections 5 and 12 of the FTC Act. The firm worked closely with the client and a scientific expert to critically assess the physiological properties of product ingredients, as well as the nature and degree of data in the client’s possession prior to dissemination of claims, in order to construct persuasive legal arguments regarding a reasonable basis for advertising claims. As a result of these efforts, in addition to the persuasive utilization of cutting-edge legal precedent limiting the FTC’s judicial enforcement authority, the firm successfully resolved the matter without the initiation of litigation enforcement proceedings.
  • Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $9M in consumer harm as a result of a purported products and services scam through Internet websites, telemarketing, and unsolicited emails and text messages. The FTC was prosecuting what it alleged to be deceptive acts or practices in violation of Section 5 of the FTC Act, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Consumer Review Fairness Act (15 U.S.C. § 45b) and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
  • Represented data broker defendants in a Federal Trade Commission lawsuit alleging in excess of $4M in consumer harm as a result of the purported collection of sensitive consumer data submitted by consumers to lead generation websites and the distribution thereof to unanticipated third-parties that, in turn: (i) utilized the information to withdraw millions of dollars from consumers’ accounts without their authorization; and (ii) conducted unauthorized marketing activities by email, text message and telephone calls. The firm successfully negotiated favorable settlement terms without any admission of culpability, premised upon the truthfulness of defendants’ financial information.
  • Represented an affiliate marketer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of monitoring services. In doing so, the FTC alleged that defendant lured consumers with fake rental property ads and deceptive promises of “free” reports. The firm successfully negotiated extremely favorable settlement terms, including reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC and that an affiliate marketer co-defendant was ordered to pay, premised upon the truthfulness of submitted financial information.
  • Represented online lead generators in a Federal Trade Commission lawsuit wherein the Commission sought millions of dollars in damages as a result of what the FTC described as fake blogs, fake news websites, fake testimonials, the failure to disclose material connections and bogus free trial offers in conjunction with selling Acai berry weight loss products. The firm successfully negotiated extremely favorable settlement terms without any finding of liability. Defendants paid only a small proportion of the damages that their network co-defendants were ordered to pay and an even smaller fraction of the damages sought by the FTC, premised upon the truthfulness of their financial information.
  • Represented defendants in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act in connection with the marketing and sale of document preparation services. The FTC alleged that defendants falsely claimed to be affiliated with the Department of Education and charged consumers illegal fees. The firm successfully negotiated extremely favorable settlement terms, including retention of funds, and reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of submitted financial information.
  • Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $3M in consumer harm as a result of a purported products and services scam. The FTC was prosecuting what it alleged to be deceptive and abusive collection practices in violation of Section 5 of the FTC Act and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
  • Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations about certification programs, as well as the failure to clearly and conspicuously disclose material connections within purported independent websites. The firm successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of respondents’ financial information. The firm also successfully negotiated the exclusion of additional specific instances of alleged unlawful advertising conduct.
  • Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations in conjunction with an alleged Internet business coaching scheme that purported resulted in more than $125M in consumer harm. The firm assisted the individual client regarding invocation of the 5th Amendment privilege and successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of the individual client’s financial information.
  • Represented affiliate marketers in conjunction with investigations by the Florida Attorney General into the promotion of weight loss and automobile insurance products/services. The firm successfully negotiated extremely favorable settlements where respondents paid only a nominal proportion of the damages alleged by the FL OAG. Both matters were resolved promptly and quietly, without any resulting litigation or admission of culpability.
  • Represented a pay-per-call network in conjunction with a subpoena issued by the Illinois Attorney General. Specifically, the investigation focused upon potential violations of the Illinois Consumer Fraud and Deceptive Business Practices Act by various third-party publishers pertaining to the advertising, soliciting and generation of leads. The firm successfully secured the prompt closure of the investigation.
  • Represented online marketers in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act, in connection with the marketing and sale of academic degree and certification programs. In doing so, the FTC alleged that defendants misled consumers about their association with recognized high school equivalency programs through the use of deceptive metatags and website names designed to look like legitimate online high schools. The firm successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of their financial information.
  • Represented a corporate officer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of personal care product trial offers. The firm successfully petitioned the court to modify a broad-sweeping asset freeze and allow distributions for personal living expenses and to fully-satisfy outstanding obligations. The firm also successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of financial disclosures.
  • Represented a digital marketing network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with the creation, sale, and dissemination of online dating advertisements in violation of the FTC Act, 15 U.S.C. § 45.  The firm dramatically narrowed the scope of the investigation which was promptly closed with no monetary remedy or enforcement.
  • Represented a telemarketer in a Utah Division of Consumer Protection investigation regarding alleged violations of the Utah Consumer Sales Practices Act and the Telephone Fraud Prevention Act. The Utah DCP was focused upon whether consumers were contacted to make telephone solicitations while the telemarketers were not registered as a telephone soliciting business, whether the telemarketers informed consumers of the right to cancel and whether the telemarketers failed to furnish services after receipt of payment. The matter was resolved amicably and the investigation promptly closed after payment of an extremely nominal sum by respondent.
  • Represented an email marketing company in an investigation by the New York Attorney General relating to alleged violations of the CAN-SPAM Act. The New York OAG was focused upon the company’s email marketing practices, related compliance considerations and third-party lead generation relationships.
  • Represented an individual in conjunction with a subpoena issued by the Federal Trade Commission pertaining to a pending lawsuit alleging deceptive chain referral schemes involving cryptocurrencies. The FTC sought verbal testimony and documentation from the client. The firm successfully defended the subpoena without the client having to provide either. The matter was closed with no further inquiry or action.
  • Represented an affiliate marketing network in conjunction with a subpoena issued by the United States Attorney’s Office regarding fraudulent “tech support” advertising campaigns. Specifically, the investigation focused upon alleged misrepresentations of affiliation with Microsoft, spoofed caller IDs, and the detection of viruses or other malware. The matter was concluded successfully with no further inquiry or action.
  • Represented merchant in conjunction with a subpoena issued by the Wyoming Attorney General examining misrepresenting the standard, grade, style, model, use, availability, value, price and discount of its merchandise; misrepresenting its approval, affiliation or sponsorship; and advertising under the guise of obtaining sales personnel when in fact the purpose of the advertisement is to sell merchandise to sales personnel applicants. The firm successfully negotiated extremely favorable settlement terms whereby respondent paid only a fraction of the statutory damages alleged and sought by the WY OAG. The firm also successfully negotiated terms that successfully minimized any negative publicity.  The matter was resolved promptly and quietly, without any resulting litigation or admission of culpability.
  • Successfully defended full-service pharmacy located in New York City against highly-publicized consumer, New York State Office of the Attorney General and NYC Department of Consumer Affairs (n/k/a NYC Department of Consumer and Worker Protection) charges alleging the advertising or offering for sale certain necessary consumer protection goods during the outbreak of the novel coronavirus (COVID-19) at unconscionably excessive prices.  The New York AG alleged violation of section 396-r of the New York General Business Law and the Rules of the City of New York (6 RCNY §5-38).  The NYC DCA alleged violation of 6 RCNY §§ 5-38 and 5-42, also mandating compliance with NYC Administrative Code § 20-700, et seq. proscribing unfair, deceptive or unconscionable trade practices.  The firm successfully resolved the NY OAG matter with no monetary settlement while avoiding the initiation of enforcement proceedings.  The firm also successfully resolved the NYC DCA investigation by negotiating extremely favorable settlement terms where respondent paid only a small fraction of the damages alleged by the DCA.  All matters were resolved quietly and amicably without any resulting litigation, finding of liability or any admission of culpability.