Section 5

News & Analysis as of

Murky Media: How Companies and Celebrities May Fall Short of the FTC’s “Clear and Conspicuous” Standard

Social media has become a must-have medium for most companies and celebrities. The medium provides an easy, inexpensive and instantaneous connection to customers and fans. However, as social media marketing continues to...more

House of Representatives Passes Consumer Review Fairness Act and Better Online Ticket Sales Acts

The House of Representatives passed two bills last week relevant to the advertising industry: the Consumer Review Fairness Act and the Better On-line Ticket Sales Act (“BOTS Act”). The Consumer Review Fairness Act is...more

FTC Makes Clear that NIST Cyber Framework is Not a Cure-All

Last week, the FTC published a blog post titled The NIST Cybersecurity Framework and the FTC, in which the agency issued a nuanced answer to an oft-asked question: “If I comply with the NIST Cybersecurity Framework, am I...more

Ninth Circuit Removes FTC From The Beat: Agency Lacks Authority To Police Common Carriers Engaged In Non-Common Carrier Activities

The Federal Communications Commission (“FCC”) asserted broad regulatory authority over the Internet and broadband Internet service providers when it reclassified Internet access service as a “common carrier” service under...more

Ninth Circuit Strips FTC of ‘Activities-Based’ Jurisdiction over Common Carriers

The FTC has no jurisdiction over common carriers even when they engage in non-common carrier activity, according to a recent U.S. Court of Appeals for the Ninth Circuit opinion. In FTC v. AT&T Mobility, No. 15-16585 (9th...more

Of “Lunch Stands and Merry-Go-Rounds”: Ninth Circuit’s Rejection of FTC Authority Over “Throttling” Could Have Far Reaching...

On August 29th, a Ninth Circuit panel unanimously held that the FTC has no power to challenge “throttling” of unlimited data plan customers by mobile broadband providers as an “unfair or deceptive act.” The panel found that...more

Fortiline LLC: Invitations to Collude in Dual Distribution Systems

Fortiline LLC distributes ductile iron pipe. It competes with the manufacturer which somewhat regularly undercuts its distributor in the market. Fortiline on several occasions asked the manufacturer not to do so. Fortiline...more

One Less Sheriff In Town: Ninth Circuit Rules that Communications Common Carriers are Exempt from FTC Enforcement

On August 29, 2016, the U.S. Court of Appeals for the Ninth Circuit issued a major decision restructuring how common carriers are regulated at the federal level. The Ninth Circuit interpreted Section 5 of the FTC Act, which...more

Advertising Law - August 2016 #3

ANA, 4As Battle Over Transparency Guidance - Two industry groups are engaging in a public battle over transparency. The dispute began when a joint task force was formed between the American Association of...more

LabMD Seeks Stay of FTC’s Final Order Pending Appeal

Not surprisingly, on August 30, 2016, LabMD filed its Application for a Stay of the Final Order of the Federal Trade Commission (FTC) pending review of the order by the appellate court. But since the matter is still pending...more

Ninth Circuit Rules All Common Carriers Beyond Reach of FTC’s Consumer Protection Authority

In a decision that could significantly impact the scope of the Federal Trade Commission’s consumer protection authority under Section 5 of the FTC Act, the U.S. Court of Appeals for the Ninth Circuit ruled on August 29, 2016,...more

FTC Complaint Counsels Caution When Settling Disputes With Competitors

The Federal Trade Commission recently sued 1-800 Contacts, Inc., the largest contact lens retailer in the United States, charging it with restraining competition in violation of Section 5 of the Federal Trade Commission Act,...more

Ninth Circuit Decision in AT&T “Throttling” Case May Reset Boundaries Between FTC and FCC Jurisdiction

On Monday, August 29, 2016, the Ninth Circuit Court of Appeals issued an opinion that may dramatically alter the boundaries between the Federal Trade Commission’s (FTC) and Federal Communications Commission’s (FCC) authority...more

FTC Reverses Its ALJ and Finds LabMD Section 5 Violation

The Federal Trade Commission recently vacated the decision of its Chief Administrative Law Judge and on July 29, 2016 entered a final order against LabMD potentially expanding previous interpretations of what constitutes...more

FTC Overturns ALJ’s LabMD Decision and Reasserts its Role as a Data Security Enforcer

On July 29, 2016, the Federal Trade Commission (“FTC” or “Commission”) reversed an FTC administrative law judge’s (“ALJ”) opinion which had ruled against the FTC, finding that the Commission had failed to show that LabMD’s...more

FTC Scrutinizes Dual Distributor Communications

A dual distribution relationship does not protect against Section 5 liability for an invitation to collude. For the first time, the Federal Trade Commission (FTC) has charged a company with violating Section 5 of the FTC...more

FTC Finds Laboratory Security Practices Caused Consumer Harm

On July 28, 2016, a panel (the “FTC Panel”) of three acting Federal Trade Commission (“FTC”) commissioners issued an opinion that found that LabMD, Inc. (“LabMD”) failed to implement reasonable security measures to protect...more

Unanimous FTC Finds LabMD’s Data Security Practices Violated Section 5 of the FTC Act

On July 29, 2016, a unanimous Federal Trade Commission (“FTC” or “Commission”) issued its Opinion and Final Order reversing the decision of an administrative law judge (“ALJ”) and holding that LabMD engaged in “unfair”...more

Got Data? Actual Harm Not Required for FTC Enforcement Action for Lax Security Measures

While much of Washington, D.C. is enjoying the slow and hazy days of summer, the Federal Trade Commission (FTC) is staying busy solidifying its presence as the go-to authority for data security. Most recently, on July 29,...more

Lessons for Businesses from FTC’s Opinion on LabMD’s Data Security Practices

The Federal Trade Commission (FTC) has issued an Opinion and Final Order finding that the data security practices of LabMD, Inc. were unreasonable, and therefore constituted an unfair act or practice in violation of Section 5...more

The FTC Rules Against LabMD in On-Going Data Security Case

The lengthy saga between the Federal Trade Commission (FTC) and LabMD, Inc. reached another turning point on July 28, 2016. The FTC issued its unanimous Opinion in which it found that LabMD’s data security practices were...more

The FTC Has Not Yet Begun To Fine - InMobi’s Million Dollar Settlement and Online Analytics in an Age of COPPA

In June 2016, India-based online advertising behemoth InMobi Ltd. agreed to pay a $ 950,000 fine to resolve Federal Trade Commission (FTC) allegations that its data collection practices violated the Children’s Online Privacy...more

FTC Expands Its Role In Cybersecurity Enforcement By Reviving LabMD Action

On Friday, July 29, 2016, the Federal Trade Commission (“FTC” or the “Commission”) overturned the decision of one of its administrative law judges (“ALJ”) from November 2015 in a suit against LabMD, Inc., now finding LabMD...more

FTC Overrules LabMD Dismissal, Finds Unfair Data Security Practices

The FTC issued an Opinion and Final Order reversing the previously dismissed charges against LabMD on July 29. FTC Administrative Law Judge (ALJ) D. Michael Chappell had dismissed the case against LabMD on November 13, 2015...more

Home Depot Seeks Interlocutory Review of District Court’s Denial of Motion to Dismiss

In May of this year, the United States District Court for the Northern District of Georgia ruled largely in favor of the class action plaintiffs and against The Home Depot, Inc. by denying a motion to dismiss on at the...more

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