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Ad Law Access PodcastOn the latest episode of the Ad Law Access Podcast, Kelley Drye has a discussion of promotions. The podcast provides this Taylor Swift contest as an example of how things can go wrong.

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Last week, Nebraska Governor Pete Ricketts signed into law LB 835, which makes the following amendments to the state’s data breach notification statute:

  • Adds to the definition of “personal information” a user name or email address, in combination with a password or security question and answer, that would permit access to an online account.

On Monday, the FCC and FTC published a Memorandum of Understanding in which the two agencies agreed to engage in greater coordination and collaboration on consumer protection issues, with greater respect for each agency’s jurisdiction. The MOU comes at a time when both agencies are seeking to position themselves as protectors of consumers in the digital economy.

In the MOU, the agencies agreed to coordinate with one another “to protect consumers from acts and practices that are deceptive, unfair, unjust and/or unreasonable” and, specifically, to:

  • Coordinate on initiatives where one agency’s action will have a significant effect on the other agency’s authority or programs;
  • Consult on investigations or actions that implicate the jurisdiction of the other agency;
  • Meet regularly to review current marketplace practices, to share each agency’s work on consumer protection matters of common interest, and to exchange information about “the evolution of communications markets”;
  • Share enforcement techniques, tools, intelligence, expertise, and best practices in response to reasonable requests for assistance;
  • Collaborate on consumer and industry outreach and education efforts;
  • Engage in joint enforcement actions, where appropriate, and coordinate public statements; and
  • Share data regarding consumer complaints to the extent feasible, including through the FTC’s Consumer Sentinel Network.

The agencies also addressed the scope of the common carrier exemption, which exempts from the FTC’s jurisdiction common carriers subject to the Communications Act. Specifically, the FCC and FTC “expressed their belief” that the exemption does not extend to non-common carrier activities engaged in by common carriers, and that exercise of enforcement authority within one agency’s jurisdiction should not be taken to limit the authority of the other. While approaching jurisdictional issues more gingerly will certainly promote better relations between the agencies in the near term, ultimately, the scope of the “common carrier exemption” is an issue for the courts and Congress, and is unlikely to be solved soon.


Continue Reading FCC and FTC Announce Consumer Protection Memorandum of Understanding

downloadOn Monday, Missouri Attorney General Chris Koster filed a lawsuit against Charter Communications, Inc., alleging that the cable, internet, and telephone service provider’s third party telemarketers made thousands of telemarketing calls to consumers who had placed their numbers on the federal and Missouri do-not-call lists, or requested not to receive telemarketing calls from Charter. According

Last week, California Governor Jerry Brown signed into law three bills that revise California’s data breach notification statute. The bills, which take effect January 1, 2016, establish specific formatting requirements for the consumer breach notice letter; define “encrypted”; and create notice, security, and privacy obligations for data captured by automated license plate recognition (ALPR) systems.

Yesterday, the California Public Utilities Commission announced it had approved a $33.4 million settlement with Comcast, which resolves allegations that, due to vendor switches, the company disclosed and published the contact information – name, address, and telephone number – of almost 75,000 California customers. Although the information published included contact information only, the affected customers

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and lacks standing.

As background, in October 2014, plaintiff Elaine Oxina filed the putative class action in

Recently, Health Canada released guidance to help companies understand their reporting obligations under section 14 of the Canada Consumer Product Safety Act, which requires that sellers, distributors, importers, and manufacturers report after becoming aware of any health or safety incident involving a consumer product. Notably, the guidance clarifies (1) what constitutes a reportable “incident,” (2)

Last week, the Washington Governor signed into law amendments to the state’s data breach notification statute. Importantly, the amendments, which take effect July 24, 2015, (1) expand the statute to cover breaches of non-computerized data; (2) mandate that businesses notify the Washington Attorney General of a breach affecting more than 500 Washington residents; and (3)