The Trump FTC Agenda: Could it be Welcome News for Marketers

Elections do matter. On January 25, President Trump named Republican Federal Trade Commissioner Maureen Ohlhausen as acting chair of the agency, bringing to an end eight years of hyperactive and, some might say, overly aggressive, consumer protection enforcement under President Obama. Ohlhausen takes over the reins of a bureaucracy very much in transition, with only two sitting members and three vacancies on the Commission and a new acting Director of the Bureau of Consumer Protection (“BCP”) appointed by Olhausen to implement her agenda. Continue with this post…

Court Ruling Upholds Business-Killing Telemarketing Rule

The Federal Trade Commission’s (FTC) Telemarketing Sales Rule (TSR) regulates telemarketing practices across all industries but singles out a few for special attention – all financial services related. They are debt relief, lost money recovery, loan brokering, and credit repair. In addition to conduct requirements specific to their industries, what all share in common under the rule is a ban on collection of advance fees before services solicited by means of telemarketing have been performed.

The most stringent of these bans is on providers of credit repair services, who even after they complete a service cannot get paid until they have “provided the [client] with documentation in the form of a consumer report from a consumer reporting agency demonstrating that the promised results have been achieved, such report having been issued more than six months after the results were achieved.” Continue with this post…

Will Trump’s FTC Enforce the Commission’s Latest Enforcement Policy Statement?

One of the tools the Federal Trade Commission (FTC) uses to provide guidance to business is the Enforcement Policy Statement (EPS). Over the years, the EPS has been used to elucidate the FTC’s views on the scope and exercise of its broad statutory jurisdiction over “unfair or deceptive acts and practices” and “unfair methods of competition” in commerce. (See, e.g., Unfairness Policy Statement [1980], Deception Policy Statement [1983], Advertising Substantiation Policy Statement [1983], and, most recently, Unfair Methods of Competition Policy Statement [2015]). These policy pronouncements help businesses understand and conform their practices to the legal principles and standards by which the FTC will exercise its statutory powers over them. Continue with this post…

Appeals Court Upholds First FTC Judgment Against an Affiliate Network

In “FTC Scores $12 Million TKO Against Affiliate Network” (DRMA Voice, April 2015), I wrote about FTC v. Lean Spa et al., the first Federal Trade Commission (FTC) action against an affiliate network ever to go to court (disclosure: I represented the merchant defendant). As the seminal action, it was the first to test (after a spate of settlements) the FTC’s assertion that its enforcement authority over deceptive business practices under Section 5 of the FTC Act extended to an affiliate network that did not itself originate the deception (in this case, fake news sites promoting the merchant-client’s product that were created and operated by the network’s publishers).

The now-defunct affiliate network, LeadClick, said it could not be held liable because it neither created nor published the deceptive advertising (its affiliates did) and was not identified in it. It also said it couldn’t be culpable under an “aiding and abetting” theory because aiding and abetting liability does not exist under Section 5 of the FTC Act. (See “Does The FTC Have Legal Authority Over Affiliate Networks?” [DRMA Voice, July 2014] for a discussion of the aiding and abetting question.) Continue with this post…

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