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Status Updates - September 2014 #5

..School discipline. The California legislature has passed a law that, if signed by Gov. Jerry Brown (or not vetoed by him before the end of September), would significantly expand privacy protections for students from...more

Certification of Cat Litter Class Action Denied For Lack of Sales Records and Uniform Exposure

Denying class certification in a kitty litter class action, the Northern District of California take a substantive step forward in aligning the District with the current trend of heightening the bar for ascertaining putative...more

Guidelines to Avoid False Advertising

When making an advertisement, what is okay? • Identifying a competitor’s product in the advertisement to make a true comparison • Making a true statement about your product or a competitor’s product that is...more

Think Before You Tweet: Top 5 Social Media Tips for Advisers

So Apple announced its new iPhone 6 etc. about an hour ago — it’s probably old news by the time this post hits the wire, which is kind of my point. I am not sure what you will do about the new Apple products, but I do know...more

Between the "Like" Button and a Hard Place: Understanding the Implications of Hulu's Latest Argument Against User's Privacy...

Companies commonly utilize Facebook as part of their online social media advertising strategy. Companies should revisit this strategy in light of a recent finding in the Northern California U.S. District Court (In re Hulu...more

CFTC grants relief to commodity pool operators selling securities using general solicitation in reliance upon Rule 506(c)

Nearly one year ago the Securities and Exchange Commission adopted Rule 506(c), which eliminated the ban on general solicitation and general advertising in the offer and sale of securities if certain criteria set forth in the...more

CFTC Provides Exemptive Relief for Commodity Pool Operators Relying on the JOBS Act’s General Solicitation Amendments and...

Earlier this week, the Commodity Futures Trading Commission’s (“CFTC”) Division of Swap Dealer and Intermediary Oversight (the “Division”) issued a series of exemptive and no-action letters applicable to commodity pool...more

The Absolute Best “Super Lawyer” Ad Design

A few years ago, Balch & Bingham had many of its attorneys selected for a particular “Best Lawyers”-type local publication, and the firm had bought an ad to support them. But the firm’s terrific Marketing Director Nora...more

CFTC Permits CPOs to Advertise

On September 9, 2014, the Commodity Futures Trading Commission (CFTC) issued an exemptive letter (No. 14-116) that permits a commodity pool operator (CPO) relying on an exemption under CFTC Regulation 4.7(b) or 4.13(a)(3) to...more

CFTC Removes Hurdle From JOBS Act Advertising

On September 9, 2014, the Division of Swap Dealer and Intermediary Oversight of the Commodity Futures Trading Commission (CFTC) issued an exemptive letter [1] (the JOBS Act Exemptive Letter) for private fund managers relying...more

Two-Party Market: Presumption of Confusion and Injury

Merck Eprova AG v. Gnosis S.p.A., et al. - Clarifying applicable presumptions in Lanham Act false advertising cases, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s use of presumptions of...more

CFPB Warns Credit Card Issuers Regarding Offering Promotional APRs

On September 3, the CFPB published Bulletin 2014-02 warning credit card issuers of the risk of engaging in deceptive or abusive acts and practices in connection with solicitations offering a promotional annual percentage rate...more

Artificial Intelligence and the Law

Plexus, a NewLaw law firm based in Australia, has just released a new legal product that purports to apply artificial intelligence to a relatively common, discrete legal issue -- determining whether a proposed trade promotion...more

A New Data Point on False Advertising, Causation, and Section 75-1.1

Earlier this year, in another false-advertising case, SMD Software, Inc. v. EMove, Inc., a plaintiff won a 1.7-million-dollar verdict based on section 75-1.1 alone. The jury instructions in that case did not specify what...more

Sixth Circuit Says Misappropriation of Customer List Not Insured Under Advertising Injury Liability Coverage

The Sixth Circuit Court of Appeals recently ruled that Liberty Corporate Capital did not have to defend a firearms retailer in a lawsuit alleging that the retailer improperly obtained and used its competitor’s customer list...more

Supreme Court Allows POM Wonderful to Sue Coke for False Advertising, Despite Its Apparent Compliance with FDA Regulations

In a unanimous decision, the Supreme Court in POM Wonderful LLC v. The Coca Cola Co. (June 12, 2014) held that the Food, Drug, and Cosmetic Act (FDCA) does not preclude a private party from bringing a Lanham Act claim...more

Legal Alert: CFPB Warns Credit Card Companies About Potential UDAAP Violations When Marketing Promotional Interest Rates

The Consumer Financial Protection Bureau (CFPB) issued a bulletin on September 3, 2014 warning credit card companies that marketing materials for promotional annual percentage rate (APR) offers may be in violation of the...more

CFPB Warns Credit Card Companies Against Deceptively Marketing Promotional Offers

On September 3, the CFPB warned credit card companies against deceptively marketing interest-rate promotions, over concerns about companies luring in consumers with offers of reduced or zero interest for a specific purchase...more

California Supreme Court Clarifies an Insurer’s Duty to Defend in Disparagement Cases

Advertising injury liability coverage offered under commercial general liability (“CGL”) policies is aimed at protecting companies against claims, often brought by competitors, alleging harm by purportedly derogatory...more

Week in Review

Some popular online services made legal headlines this week. After years of litigation, a federal appeals court held that Yelp did not extort businesses by manipulating user reviews to coerce advertising purchases. While Yelp...more

The Supreme Court Resolves a Circuit Split Regarding Standing to Sue for False Advertising Under the Lanham Act

In Lexmark Int’l, Inc. v. Static Control Components, Inc. (March 25, 2014), the Supreme Court unanimously held that "to invoke the Lanham Act’s cause of action for false advertising, a plaintiff must plead (and ultimately...more

Third Circuit Nixes Presumption of Irreparable Harm in Comparative False Advertising Cases

Continuing a trend that began in 2006 with the Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., the U.S. Court of Appeals for the Third Circuit has ended the practice of presuming irreparable harm in Lanham Act...more

FCC Letter Brief Suggests That Faxes and Phone Calls are Different for Purposes of Direct Liability Under the TCPA

At the invitation of the Eleventh Circuit Court of Appeals, the FCC recently filed a letter brief in Palm Beach Golf Center-Boca, Inc. v. Sarris, No. 13-14013 (11th Cir.). The letter brief took the position that defendants...more

Don’t Litter, Eh?

The Toronto Globe and Mail recently reported on a clever anti-littering campaign that was launched and quickly aborted in Toronto due to trademark concerns. The premise for the campaign was to take wrappers and packaging...more

11 Ways to Avoid Advertising Missteps

Although advertisements are everywhere, many companies are not aware of the numerous state and federal laws and regulations that govern advertising. Below are several basic advertising concepts to help spot and avoid...more

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