The Advertising Law Blog provides commentary and news on developing legal issues in advertising, promotional marketing, Internet, and privacy law. This blog is sponsored by the Advertising, Marketing & Promotions group at Olshan. The practice is geared to servicing the needs of the advertising, promotional marketing, and digital industries with a commitment to providing personal, efficient and effective legal service.
The client alert addresses how New York has now joined other states with some of the most burdensome automatic renewal laws, enacting a sweeping law that regulates automatic renewal disclosures and cancellation procedures.
Olshan’s Advertising, Marketing & Promotions Practice is providing pro bono legal support on a sweepstakes run by In Good Taste, a fundraising initiative whose goal is to help ease the suffering caused by COVID-19 and racial inequality.
Law360 has published an article authored by advertising partner Scott Shaffer entitled “Charter TCPA Ruling May Benefit Cos. Facing Robocall Claims.” In the article, Mr. Shaffer analyzes a recent ruling, Creasy v. Charter Communications Inc., which held that a significant portion of the Telephone Consumer Protection Act (TCPA) is unenforceable for violations occurring between November 2015 and July 6, 2020.
Court reverses award of $448 million in ill-gotten gains
The Court of Appeals for the Third Circuit rejected a district court’s award of $448 million against a pharmaceutical company in a lawsuit brought by the Federal Trade Commission (FTC). In an antitrust case styled FTC v. AbbVie, Inc. (decided on September 30, 2020), the Third Circuit ruled that district courts lack the power to order disgorgement under the FTC Act. While the Third Circuit ruled in favor of the FTC on other issues in this case, the reversal of the disgorgement award the FTC is the focus of this blog entry.
Ruling could have broad implications on thousands of pending cases
A federal district court has ruled that the Telephone Consumer Protection Act (TCPA) is unenforceable for violations occurring between November 2015 and July 6, 2020. The trial court in Creasy v. Charter Communications, in the Eastern District of Louisiana on September 28, 2020, dismissed all asserted TCPA violations alleged to have occurred before July 6, 2020 because a portion of the TCPA was unconstitutional until the Supreme Court “fixed” it on that date.
Our fast-moving webinar discussed key issues involving marketing and business practices in the current environment.
Online children’s education company Age of Learning, Inc., also doing business as ABCmouse, has agreed to pay $10 million to settle the FTC’s charges that it made it difficult and confusing for subscribers to cancel their memberships. The settlement highlights the importance of a compliant subscription enrollment pathway, including readily-accessible cancellation processes. It also highlights a growing focus by regulators and others on “dark patterns” online marketing techniques.
As we have previously reported, like other regulators, the FTC has been quick to take action against companies that it believes are seeking to take advantage of the coronavirus pandemic. The FTC has sent warning letters to approximately 300 companies that it has alleged were making unsubstantiated or potentially misleading claims about products related to the coronavirus. Recently, the FTC has taken decisive action against a company to which it has previously sent a warning letter, alleging that such company has continued to make deceptive and misleading advertising claims in spite of the FTC’s warning.
The importance of timely delivery remains a top priority, particularly when making enhanced delivery promises. In light of the impact of the COVID-19 pandemic, the FTC has filed complaints against three online merchandisers it believes have failed to deliver on quick shipping promises in contravention of the FTC’s Mail, Internet and Telephone Order Rule, commonly known as the Mail Order Sales Rule.
In the context of the coronavirus pandemic, many companies have turned to online sweepstakes and promotions as a means of both promoting their brand and showing support to coronavirus relief efforts. Certainly, sweepstakes and promotions can be an effective way to achieve these dual purposes. As we previously reported, brands that have hastily run promotions without thinking through the consequences of various events have run into a firestorm of negative publicity as well as potential class actions. Making sure that the promotion incorporates the items below can help ensure that a promotion is legal, properly structured, and contains appropriate protections for the brand.