Behind the Scenes

Arent Fox's advertising law blog - latest news and trends in advertising, data security & privacy, and fashion & entertainment.

Behind the Scenes
Advertising, E-Commerce, Product Placement & Distribution, Promotions, Sweepstakes & Contests
alert
Court Rules that Size, Placement of Forum-Selection Clause is Pivotal in Microsoft Case

What Made News?

A recent ruling out of West Texas in Mendoza v. Microsoft, Inc., 5:13-CV-00378 (W.D. Tex. March 5, 2014) serves as a reminder that companies must make sure their service agreements and online privacy policies conform to industry best practices, as well as legal requirements. The structure and format of these agreements can be critical to their enforceability and companies should not take any aspect for granted.

What Did the Court Rule?

According to the recent decision in Mendoza v. Microsoft by the US District Court for the Western District of Texas, a forum selection clause in an electronic “Terms of Use” agreement is contractually valid. In upholding the validity of the forum selection clause, the Court noted that the clauses are “presumed enforceable” in the Fifth Circuit and should be upheld unless the party opposing enforcement can show that the clause is unreasonable.

Continue Reading →
Advertising, Product Placement & Distribution, Promotions, Sweepstakes & Contests
alert
We See What You Did There: Supreme Court Labels ‘Prudential Standing’ as Misleading in Key False Advertising Row

Static Control Components, Inc. may bring a false advertising claim against Lexmark International, Inc. for telling Static Control’s customers that it was illegal to use Static Control chips in refurbished ink cartridges, the Supreme Court ruled in a unanimous opinion authored by Justice Antonin Scalia. The Court’s ruling greases the skids for false advertising plaintiffs, who now face a lower burden in demonstrating prudential standing, and likely has broad-reaching implications for other business litigation.

Continue Reading →
Advertising, Promotions, Sweepstakes & Contests
alert
FTC Cracks Down on Misleading Environmental Marketing
As part of its effort to ratchet up enforcement on environmental claims and violations of the Guides for the Use of Environmental Marketing Claims (or Green Guides), the Federal Trade Commission (FTC) reached two separate settlements with companies accused of making misleading claims involving plastic products.
Continue Reading →
Advertising
event
Arent Fox Partner Anthony Lupo Speaks in Panel Discussion at 2014 Legal and Regulatory Conference

On April 9, 2014, Anthony V. Lupo will participate in a panel discussion about advertising and updates in the FTC at the 2014 Legal and Regulatory Conference. The panel, titled “Don Draper in the Digital Age: How Technology is Changing the Law of Advertising,” will cover topics such as native advertising, social media, the internet of things and consumer consent, and behavioral advertising. Additional speakers will include Farah Ahmed of the Personal Care Products Council, Andrew Udin of MRY Advertising, and Anthony Justman of Sony Computer Entertainment.

To learn more about the Conference, click here.

Continue Reading →
Advertising, Product Placement & Distribution
alert
Do Clothing Manufacturers Need to Rethink Marketing Tactics for Outlets?
Four members of Congress recently asked the Federal Trade Commission to launch a federal investigation into the marketing practices conducted by outlet stores. They are arguing that because of the way outlets market their products, consumers may be unaware that lower quality items never intended to be sold at the regular retail store are often made available in the retailer’s outlet collection.
Continue Reading →
Advertising
event
Sarah Bruno to Speak During ANA’s Advertising Law and Public Policy Conference

On April 24, 2014, Sarah L. Bruno will present “We’re All Buzzing! Substantiation in the Tech Industry” during the Association of National Advertisers’ Advertising Law & Public Policy Conference. As with past conferences, attendees will hear from important regulators on key issues that are shaping the legal and political climate for advertising and marketing.

Sarah’s presentation will focus on some of the more daring advertising claims made in the technology industry and provide insight on what is needed to substantiate them. It will also discuss the challenges presented in advertising advanced technology law, including what disclosures should be considered when a product employs technology that is not yet in existence. The panel will also provide an overview of the legal issues surrounding “green” claims in the technology industry.

Continue Reading →
Advertising, E-Commerce, Mobile Marketing, Social Media
alert
California State Court Decision Could Spell Trouble for Some Online Retailers

A recent state court decision in California could prove a major headache for online retailers that engage in comparative price advertising. Although the decision — People of the State of California v. Overstock.com — is not binding precedent and its future on appeal is far from clear, the decision suggests that retailers may be forced to adopt more rigorous internal standards when engaging in comparative price advertising.

Continue Reading →
Advertising
alert
News Roundup: The Negative Option and Fantage

Opt-In or Else: Maryland Introduces Negative Option Bill

Maryland is considering a ban on negative option plans after a bill restricting its use to Maryland consumers was recently introduced. If approved to become law, the bill will require merchants to obtain express consent before billing consumers using a negative option feature. Therefore, marketers would be required to obtain express affirmative consent prior to beginning to bill a consumer for consecutive periods until the consumer cancels. A similar bill was introduced last year, but did not progress. Arent Fox will continue to monitor the progress of this legislation.

Continue Reading →
Advertising, E-Commerce, Promotions, Sweepstakes & Contests, Publicity Rights
alert
Oh BehAve! The BBB Is Watching

The Council of Better Business Bureaus (BBB) recently announced that it will be increasing its enforcement efforts for website operators that participate in online behavioral advertising (OBA), which is targeted advertising to consumers based upon their interests. The BBB is responsible for enforcing the self-regulatory code created by the Digital Advertising Alliance (DAA), which requires website operators to provide additional information regarding their OBA activity. Although the DAA code has been in force for some time now, the BBB has noted that many website operators are failing to comply. Therefore, beginning this year, the BBB intends to increase its efforts to require compliance.

Continue Reading →
Advertising, COPPA & GLB, Privacy & Security - US & Abroad
alert
FTC Approves New COPPA Safe Harbor Program

The Federal Trade Commission (FTC) has recently approved the kidSAFE Seal Program’s kidSAFE+ seal as a safe harbor program through which companies can demonstrate compliance with the Children’s Online Privacy Protection Act (COPPA) Rule.

A company that is approved under the FTC’s safe harbor program is deemed to be in compliance with the COPPA Rule. This means that the FTC has sanctioned the practices of the website with respect to its collection of data from children under the age of 13. As it was approved, the kidSAFE Seal Program’s kidSAFE+ seal will now serve as a safe harbor option. It is available to websites and applications, including mobile apps, tablet devices, and other interactive technologies.

Continue Reading →

Pages

SUBSCRIBE

Add this blog to your RSS feed reader.

Arent Fox In Your Inbox
To subscribe to Arent Fox Alerts and other news, click here.

ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.