Behind the Scenes

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

Behind the Scenes
Payment Processing, Electronic Fund Transfers & Mobile Payments
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Costco Looks to Knock Out FACTA Receipt Class Action

What’s the News?

Costco Wholesale Corporation recently moved to dismiss a class action lawsuit alleging that the discount retailer printed more than the last five digits of a customer’s credit card number on her receipt, in violation of the Fair and Accurate Credit Transactions Act (FACTA). Costco argued in its motion that the document upon which the credit card number was printed – a longer document provided to the plaintiff by a customer service supervisor – was not actually a “point-of-sale” receipt within the meaning of FACTA, taking it outside the scope of the law. This case presents an interesting issue for companies as they seek to avoid costly and time-consuming litigation under FACTA.
 

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Privacy & Security - US & Abroad
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Detour – Rerouting: Unsecure Routers Lead to FTC Action

Key Takeaways

  • Following a settlement, ASUSTeK must maintain a comprehensive security program and endure 20 years of independent audits 
  • The onus is on technology companies to ensure reasonable security measures and practices

What the News?

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Advertising, Media & Entertainment
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Ninth Circuit Gives New Life to Grand Theft Auto Class Action

What the News?

In a recent opinion, the Ninth Circuit reversed the dismissal of a lawsuit against the developer of the highly-anticipated videogame Grand Theft Auto V. Two plaintiffs filed a putative class action, claiming that the game’s packaging made promises that the company did not keep. In particular, the plaintiffs asserted that the packaging suggested the game included an online, interactive component, when in fact this functionality was not available to users at the time the game was released. While the district court found that the plaintiffs had not properly stated a claim for relief in their complaint, the Ninth Circuit disagreed, stressing the plaintiff-friendly standard for a motion to dismiss for failure to state a claim. The case presents an interesting issue for advertising related to videogame capabilities.=

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E-Commerce, Payment Processing, Electronic Fund Transfers & Mobile Payments
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Amazon Fights Injunction in FTC Action Over In-App Billing Practices

Practical Guidance

  • In-app purchasing remains a priority for regulators.  
  • Companies with mobile apps should incorporate password protection and informative prompts to obtain informed consent from account owners for in-app purchases.

What the News?

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Privacy & Security - US & Abroad
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Join Arent Fox at CyberMaryland@RSA Cybertini

Please join Arent Fox and members of the CyberMaryland community at the CyberMaryland @ RSA Cybertini networking reception during the RSA Conference 2016 in San Francisco. RSA Conference is a major driver of the information security agenda, connecting and education security professionals worldwide. Key topics on the agenda include the realities of data security, bringing cybersecurity into the boardroom, and privacy issues.

Cybertini, organized by the Maryland Department of Commerce, Office of Cyber & Aerospace, is on March 1, 2016 from 4:00-6:00pm in the Marriott Marquis Chill Lounge. To RSVP, click here.

Join the conference conversation. Tag us @ArentFoxBTS and @RSAConference and use #RSAC.

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Privacy & Security - US & Abroad
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The EU-US Privacy Shield: What to Expect Next

On February 2, the potential replacement to the invalidated Safe Harbor data transfer mechanism, the EU-US Privacy Shield, was announced by the European Commission and the US Department of Commerce, as we covered here. However, while organizations and representatives on both sides of the Atlantic welcomed the conclusion of the negotiations on Tuesday, the true substance of the Privacy Shield is yet to come. 

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Privacy & Security - US & Abroad
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Safe Harbor Data Gets a New ‘Privacy Shield’

This morning, the European Commission and US Department of Commerce agreed on a Safe Harbor replacement deal, rebranded as the EU-US Privacy Shield. The deal was first announced via Twitter by EU Justice Commissioner Vera Jourová, then detailed in a press conference in Strasbourg, France.
 
While details of the agreement have not been disclosed, the EU-US Privacy Shield reportedly addresses requirements set out by the European Court of Justice in its ruling on October 6, 2015, which declared the previous framework invalid. In her press conference, Commissioner Jourová emphasized the following three elements of the new deal:

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Privacy & Security - US & Abroad
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What’s the Big Deal with Big Data? New FTC Report Released

What’s the News?

The Federal and Trade Commission recently released a report outlining the benefits and risks involved in using big data. The report, Big Data: A Tool for Inclusion or Exclusion? Understanding the Issues cautions companies against the use of big data in a way that could lead to discrimination, and explains how companies should analyze and use big data in compliance with various consumer protection laws. In particular, FTC Chairwoman Edith Ramirez expressed concerns related to the use of big data in connection with “harmful exclusion or discrimination.” To that end, the FTC Report provides some guidance on how companies can use big data to benefit themselves and society, while minimizing legal and ethical risks.

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Advertising, Promotions, Sweepstakes & Contests
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Deal or No Deal? Class Action Alleges Macy’s Offered Misleading Sale Prices

What’s the News?

Macy’s, Inc. and subsidiary Bloomingdale’s, Inc. were recently served with a class action complaint alleging that the retail chains misled consumers with a “phantom pricing scheme” that inflated the savings available on items marked for sale. According to the complaint, the stores listed artificially high “regular” prices on “sale” items, increasing, by comparison, the savings that consumers believed they were receiving. This is the latest of several recent class action lawsuits attacking retail pricing strategies, and it serves as a reminder to retailers nationwide to be careful when using price comparisons.

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Advertising
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Is It or Isn’t It? FTC Issues Guidance to Companies on Native Advertising

The Federal Trade Commission recently issued its long-anticipated guidance on native advertising. While the policy statement and its related guidance are new, the FTC emphasized that it has been regulating native advertising under Section 5 of the FTC Act since 1967 and that this policy document and guidance is a summary of the principles that it has developed over the years. While the FTC has been regulating native advertisements for decades, the issuance of this guidance indicates that the FTC will be making regulation of native advertising a priority in 2016.
 
Native advertising – as defined by the FTC – is advertising that matches the design, style, and behavior of the digital media in which it is disseminated. The main problem with respect to native advertising arises when the content is formatted in a way that suggests or implies it is not an advertisement.

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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.