Advertising Litigation

TCPA In Jeopardy? US Supreme Court Reviews ConstitutionalityOn Wednesday, May 6th, the U.S. Supreme Court will hear oral argument in a case concerning the scope of the Telephone Consumer Protection Act (“TCPA”) that is of great interest to businesses and communications industry practitioners. In William P. Barr et al. v. American Association of Political Consultants et al., Case No. 19-631 (2020) (“Barr”) the Supreme Court agreed to review a ruling by the Court of Appeals for the Fourth Circuit, which declared a 2015 government debt collection exemption unconstitutional and severed the provision from the remainder of the 1991 TCPA. The 2015 amendment exempts calls from the TCPA’s autodialer restriction, if the call relates to the collection of debts guaranteed by the U.S. government. On Wednesday, the Supreme Court will consider if: 1) the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment; and 2) whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

TCPA litigation has largely focused on the autodialer restriction over the past decade.  In 2015, the Federal Communications Commission (“FCC”) adopted an expansive interpretation of the restriction, which the U.S. Court of Appeals vacated and remanded in 2018. While the industry has waited for the FCC to offer further guidance, entities making calls and sending texts have navigated an environment plagued by uncertainty. Several courts of appeals have adopted conflicting interpretations of the autodialer provision. Meanwhile, the FCC could offer its interpretation at any time, throwing the issue into further litigation in all probability.  In this environment, the Supreme Court agreed to hear the constitutionality of one TCPA exemption in the Barr case. Many are hoping for a decision that goes beyond the 2015 amendment and offers definitive guidance on the autodialer provision’s scope. This post discusses what to expect – and what to watch for – in the Supreme Court’s oral argument this week.


Continue Reading TCPA In Jeopardy? US Supreme Court Reviews Constitutionality

Last week, NAD launched a new, expedited process that will allow companies to challenge advertising claims made by competitors and get a decision within weeks as opposed to months.  The process, “Single Well-defined Issue Fast Track” or “SWIFT” is limited to single-issue cases, condenses and simplifies the standard NAD timeline and process, and is slightly

Lawsuits challenging the advertising and labeling of sugar content – and corresponding representations that a food product may be healthy or wholesome – have become ubiquitous in the class action world.  Yet, a growing number of courts are rejecting such claims when the product’s nutritional label accurately reflects the correct sugar amount in a manner

This month, NAD announced a decision involving T-Mobile’s ads for its TVision service. The service currently allows subscribers to watch TV over a wired broadband connection, though T-Mobile plans to offer wireless technology in the future. The decision covers a lot of ground, but we’ll focus on some key points related to product and feature

The plaintiffs’ class action bar continues to target “healthy” advertising claims made by food and beverage companies by bringing expensive class action lawsuits against the companies.

The latest company forced to defend its advertising is BA Sports Nutrition, LLC, the maker of BodyArmor SuperDrink, which was recently hit with a putative class action in the

In Glasser v. Hilton Grand Vacations Company, LLC, the Eleventh Circuit addressed a pair of appeals that presented the question of the appropriate definition of an automatic telephone dialing system (“ATDS”) as set forth in the Telephone Consumer Protection Act (“TCPA”).  In answering that question, the Eleventh Circuit expanded upon the Third Circuit’s ruling

BodyArmor targeted in class action

BodyArmor Targeted in Class Action

The plaintiffs’ class action bar continues to target “healthy” advertising claims made by food and beverage companies by bringing expensive class action lawsuits against the companies.

Silver v. BA Sports Nutrition
The latest company forced to defend its advertising is BA Sports Nutrition, LLC, the maker of BodyArmor SuperDrink, which

At the end of 2019, Governor Andrew M. Cuomo released the 10th proposal of his 2020 State of the State Agenda, which aims to eliminate the so-called “pink tax,” a gender-based pricing phenomenon that allegedly results in higher prices for good and services marketed towards women as compared to substantially similar alternatives marketed