Behind the Scenes

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

Behind the Scenes
Privacy & Security - US & Abroad
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European Data Authorities React to Safe Harbor Invalidation

What’s the News?

Following the European Court of Justice’s decision to invalidate the safe harbor framework, multinational businesses have been clamoring for guidance regarding how best to comply with European Union data protection laws while transferring data from the EU to the United States. While regulators are actively working to develop a “Safe Harbor 2.0”—with some speculating that draft legislation may be finalized as early as mid-December 2015— no such framework has been released. Further, it has been widely recognized that all data transfers taking place based upon a previous reliance on the framework are now in violation of EU law unless a separate transfer rationale exists. Given these concerns, several EU data protection authorities (DPAs) have spoken out with some guidance.

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Advertising
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Is the Price Right? Nordstrom Facing Class Action Over “Compare At” Pricing

What’s the News?

A federal judge for the Southern District of California recently held in Branca v. Nordstrom, Inc. that a class action could proceed with claims that Nordstrom made deceptive savings claims at a Nordstrom Rack store. In particular, the plaintiff alleged violations of California state law, claiming that Nordstrom listed higher “Compare At” prices next to sale prices, when the items had never been offered at that higher price by Nordstrom or other retailers.
 

Background on the Case

 
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Privacy & Security - US & Abroad
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New Rules for Wall Street: New York Unveils Cyber Regulations

In a move to join the growing list of regulators involved in the US cybersecurity space, the New York Department of Financial Services announced earlier this month that it is considering new cybersecurity regulation for financial institutions. This follows a series of actions taken by several agencies in recent months to set new standards for data protection, including the Federal Financial Institutions Examination Council issuing their cybersecurity assessment tool in June, the National Institute of Standards and Technology Cybersecurity Framework update in July, the development of the Cybersecurity Information Sharing Act in the US Senate, and FFIEC’s latest guidance.
 

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Privacy & Security - US & Abroad
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Protecting, Mitigating, and Recovering: 8 Takeaways for Your Incident Playbook for Responding to and Learning from Cyber Attacks

Last week, partner Sarah Bruno and Arent Fox Senior Government Relations Director Alex Manning were featured panelists during a cybersecurity forum hosted at Arent Fox’s DC office with the Information Technology and Innovation Foundation (ITIF) and The George Washington University's Center for Cyber and Homeland Security (CCHS).
 

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E-Commerce
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New York Tells DraftKings and FanDuel to Stop Taking Bets

New York's Top Regulator Steps In

On November 10, New York's attorney general ordered DraftKings and FanDuel to stop accepting bets from the state's residents, arguing the games constituted illegal gambling. The cease-and-desist order is the most recent in a string of setbacks for the burgeoning multi-billion-dollar industry that intertwines betting with fantasy sports.

Critically for DraftKings and FanDuel, the move by Attorney General Eric T. Schneiderman could create a domino effect, leading other states to take similar action. For their part, fantasy sports companies say the games are not gambling because they involve skill and are legal due to a 2006 federal law that exempts fantasy sports from a ban against processing online sports betting.

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Publicity Rights
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District Court Gives Go-Ahead to Marilyn Monroe’s Estate on False Endorsement Claim

What’s the News?

A federal judge in the Southern District of New York recently held in A.V.E.L.A., Inc. v. Estate of Marilyn Monroe, LLC that the Lanham Act protects rights in a celebrity’s image long after his or her death. Specifically, the court determined that Marilyn Monroe’s estate could proceed with a Lanham Act false endorsement claim against a vintage collectibles licensor who was creating and marketing various products featuring images of the iconic celebrity. Notably, the court issued this holding over the licensor’s objection that the false endorsement claim was a “thinly veiled” attempt to enforce publicity rights, a separate type of claim not available under the Lanham Act.
 

The Legal Backdrop: Milton H. Greene Archives, Inc. v. Estate of Marilyn Monroe, LLC

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Privacy & Security - US & Abroad
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10 Steps to Mitigate A Data Breach Before It Happens

Many of the clients that we advise are nervous about data protection, cyber issues, and the privacy of their customers and employees. Who can blame them? Every day we read news about another privacy breach. Some of the companies that we counsel are light years ahead – talking coding strategies and testing for vulnerabilities – while others are trying to determine how to be compliant and implement internal protocols in response to a breach.

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E-Commerce
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Online Retailers Beware: ADA Expansion to Require Enhanced Web Accessibility for Disabled

Wheelchair ramps and accessible parking spaces soon may not be enough for retailers to comply with the Americans with Disabilities Act (ADA). As companies continue to expand their online presence, the number of suits brought against retailers for non-compliance with the ADA has grown, especially litigation related to the websites of large retail chains, many of whose websites allegedly do not allow hearing- or sight-impaired individuals easy access to the services provided by retail websites. Trade associations have filed similar claims as they continue to petition for non-discriminatory treatment for those with disabilities, with the ultimate goal of retail websites that cater to the needs of the disabled by providing features such as closed captioning for the deaf or screen reader-compatible content for the blind.
 

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Promotions, Sweepstakes & Contests
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Paid to Play: FTC Cracks Down on Marketing Company for Deceptive Video Game Endorsements

The Federal Trade Commission (FTC) continues to pursue companies for failing to disclose material connections in endorsements. In a recent action, the FTC settled with Machinima, Inc. a marketing company that paid gamers to post YouTube videos endorsing Microsoft’s Xbox system and games. The gamers posted the videos without informing viewers that they had been given pre-release access to the games and paid to produce the videos.     
 
Under the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (the Guide), “material connections” between advertisers and endorsers – those that consumers would not expect – must be fully disclosed. Such connections may involve payments or free products, or any other benefit that might materially affect the weight or credibility of the endorsement.
 

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Social Media
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Social Media Law: U Can't Always Post What U Want

Partner Sarah Bruno is featured as a potential panelist at SXSW 2016 for a discussion that would focus on the latest in ad law, new tech, and social media.

The panel, which also features, Andrew Udin of Publicis, Brian Heidelberger of Winston & Strawn, and  Marc Yudkin of Vayner Media will address:

  • The legal considerations when utilizing technology found in the best new platforms and tech products at SXSW 2016.
  • The increased scrutiny brands face with their advertising practices on social media.
  • The motivation as brands continue to exploit celebrities’ names and likenesses for commercial purposes without permission.

To learn more about the planned panel and to vote for its inclusion is SXSW 2016, click here.

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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.