News & Analysis as of

Class Certification, Unfair Trade Practices, and Governing Standards

In Bumpers v. Community Bank of Northern Virginia, the North Carolina Supreme Court held that when a plaintiff alleges a violation of N.C. Gen. Stat. § 75-1.1 based on a misrepresentation, the plaintiff must prove actual and...more

Dumbing Down Your Smart TV: California Prohibits the Use of Voice Recognition for Advertising Purposes

Last week, California Governor Jerry Brown signed into law A.B. 1116, prohibiting manufacturers’ use of smart televisions’ voice recognition feature for advertising purposes. Effective January 1, 2016, consumers must be...more

Handmade, Craft, and Imported: Alcohol Beverage Makers Battle False Labeling & Advertising Claims

In the past couple years, there have been several consumer class action lawsuits filed against alcohol beverage makers claiming that their labels or marketing campaigns are false or misleading. Several lawsuits have been...more

State Law Obstacles to the National Distribution of eHealth Medical Devices Directly to Consumers

The latest and greatest eHealth medical devices directed to consumers are technologically advanced and consumer-friendly. They have the capacity to diagnose certain health conditions and generate treatment plans and...more

BCAP consults on payday loans

BCAP has launched a consultation on whether it is proportionate and necessary to introduce scheduling restrictions on the television advertising of high-cost short-term credit (HCSTC). ...more

Ads Touting Function Shoot Down Trademark

This isn’t the first time we’ve written about brand owners who shoot themselves in the foot with their advertising. And, I’m sure it won’t be the last. As we’ve discussed before, touting the function of a product design...more

Advertising Law - October 2015

Commercials Pulled After Endorser Admits 9/11 Lies - The revelation that an endorser lied about his whereabouts on September 11 led a national sports-themed restaurant chain to stop airing commercials where the actor...more

Technology Industry Newsletter - October 2015

We hope you enjoy this edition of our Tech Newsletter. As technology continues to drive business innovation and growth, new and existing companies positioned to take advantage of the tech trends for 2016 will be better...more

Volkswagen Defeated?

Last week, on September 18, 2015, the EPA issued a News Release revealing that Volkswagen Group of America (“Volkswagen”) sold cars incorporating a “defeat device” as defined in the Clean Air Act (“CAA”) to purposefully evade...more

Making a Good Thing Better? NAD’s Plans to Modify Its Procedures

The National Advertising Division (NAD) has for more than 40 years been the premier avenue for self-regulation in the advertising industry. Born in the ’70s at a time when there was pressure from government and consumer...more

Online Behavioral Advertising Guidelines Go Mobile

On September 1, the Digital Advertising Alliance (DAA) began enforcing its guidelines for online behavioral advertising regarding mobile advertising. The DAA, a notfor-profit independent body, develops industry-best practices...more

Hi-Tech Accuses Dynamic of Trademark Infringement and False Claims of Steroid Powered Products

On September 28, 2015, Hi-Tech Pharmaceuticals, Inc. (“Hi-Tech”), a Georgia corporation, brought a trademark infringement action against Dynamic Sports Nutrition, LLC d/b/a Anabolic Research (“Dynamic”), and Brian Clapp...more

"European Court of Justice Rules on Retroactive Loyalty Rebates"

On October 6, 2015, the European Court of Justice (the ECJ) issued an important judgment clarifying the application of Article 102 to retroactive loyalty rebates (Post Danmark AS, Case C 23/14). The case, which had been...more

How UK Brands That Use Vlogger Endorsements & Social Media for Marketing Can Stay on the Right Side of the Law

Vloggers have become the reality stars of our times. For an increasing number of social media users, what was once a hobby is now a lucrative career. You may be surprised to learn that Felix Kjellberg (aka “PewDiePie”), a...more

Blog: No Surprise Here: SEC And Amnesty File Petitions For En Banc Rehearing In The Conflict Minerals Case

To no one’s surprise, on Friday, the SEC and Amnesty International filed petitions for en banc rehearing in the conflict minerals case, National Association of Manufacturers, Inc. v. SEC. That case, decided two-to-one in...more

ASRC Announces Changes to NAD and NARB Procedures Following Working Group Recommendations

The Advertising Self-Regulatory Council board has announced changes to the adjudicatory processes of the National Advertising Division and the National Advertising Review Board. The changes, announced at the NAD's annual...more

The Ninth Circuit Declares That Individualized Damages Issues Alone Never, Ever Preclude Certification of a Rule 23(b)(3) Class

In Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752, 2015 U.S. App. LEXIS 16723 (9th Cir. Sept. 21, 2015), a Ninth Circuit panel held that individualized damages (or restitution) calculations cannot alone defeat Rule...more

Rights of Publicity: A Potentially Catastrophic Pitfall for the Unwary Marketer as told by Jordan v. Dominick’s Finer Foods

Most marketing departments for large companies have at least a basic understanding, if not a proficient grasp, of the type of legal vetting that needs to be conducted before using an image in an ad or marketing piece. They...more

Ninth Circuit Holds District Court Erred In Denying Certification To Class Of Google Advertisers

A Ninth Circuit panel reversed a district court’s order denying certification of a putative nationwide class of internet advertisers, holding that the district court erred in finding that plaintiff failed to satisfy Rule...more

DAA Begins Enforcing Its Guidelines for Mobile Advertising This Month: What You Should Know in Order to Prepare

Application of Self-Regulatory Principles to the Mobile Environment Effective September 1, 2015, the Digital Advertising Alliance (DAA) is now enforcing its Self-Regulatory Principles for Online Behavioral Advertising and...more

"The Future of Government Regulation, Enforcement of Off-Label Promotion"

Three years ago, in United States v. Caronia, the U.S. Court of Appeals for the Second Circuit held that the Federal Food, Drug and Cosmetic Act (FDCA) neither prohibits nor criminalizes truthful, nonmisleading speech that...more

Financial Projections, Strategic Plans, And Customer Contract Proposals Can Be Trade Secrets

Two competitors who do research and analysis for advertisers and media companies, concerning how television viewing impacts consumer purchasing, have been in a legal battle over alleged trade secret misappropriation, patent...more

Retailer Pricing Strategies: Back to School under the Competition Act

How much did you really save in Back to School sales? Can consumers trust a retailer’s claims about its “regular” prices and its “sale” prices? Canada’s competition law enforcer is showing renewed interest in retailers’...more

How to tackle a digital pirate

The digital advertising industry is under attack; ad blocking technologies (and their inclusion on Apple platforms) are expected to have a significant impact on revenues within the industry. However, it is websites with...more

U.S. to China Health Care Arrangements: New Rules for Medical Institution and Service Advertisements

As U.S. hospitals and health care providers continue to explore China’s market for international health care business opportunities, including telemedicine, they often consider providing services or products to consumers...more

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