Jessica and Laura join our impressive list of former FTC officials, including the firm’s managing partner, Dana Rosenfeld, who served as Assistant Director of BCP and attorney advisor to FTC Chairman Robert Pitofsky, former Bureau Directors Bill MacLeod and Jodie Bernstein, as well as Aaron Burstein, having served as senior legal advisor to FTC Commissioner Julie Brill.

Jessica served at the FTC for 26 years and led major initiatives on privacy, data security, and financial consumer protection. She is credited with expanding the FTC’s expertise in technology and was the driver behind FTC policy reports relating to mobile apps, data brokers and Big Data, the Internet of Things, and federal privacy legislation. She also directed the agency’s development of significant privacy rules, including the Children’s Online Privacy Protection Rule and Gramm-Leach-Bliley Safeguards Rule. She is a recipient of the FTC Chairman’s Award, the agency’s highest award for meritorious service and the first-ever recipient of the Future of Privacy Forum’s Leadership Award. Jessica is also a fellow at Georgetown University’s Institute for Technology Law & Policy. Prior to joining Georgetown, she was an Independent Consultant with Privacy for America, a business coalition focused on developing a framework for federal privacy legislation.

Laura also brings significant experience to Kelley Drye. As Assistant Director for the FTC’s Division of Privacy & Identity Protection, Laura led the investigation and prosecution of matters relating to consumer privacy, credit reporting, identity theft, and information security. Her work included investigation initiation, pre-trial resolution, trial preparation, and trial practice relating to unreasonable software security, mobile operating system security update practices, and many other information privacy and identity protection issues. She joins the firm from AT&T where she served as an Assistant Vice President – Senior Legal Counsel advising business clients on consumer protection risks, developing and executing strategies in response to regulatory inquiries, and participating in policy initiatives within the company and across industry.

Jessica and Laura are an impressive duo and are sure to be an asset to our clients as they prepare for the future of privacy and evolving consumer protection law.

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October 13 Futureproofing Privacy Programs Building a successful privacy program requires much more than compliance with data protection laws. To thrive in today’s global, data-driven environment, companies also need to understand the political environment and public attitudes surrounding privacy in the countries in which they operate. Of course, companies must anticipate and adapt to changing privacy regulations as well.

In conjunction with Canadian firm nNovation LLP, Privacy and Information Security practice chair Alysa Hutnik and partner Aaron Burstein will present strategies to help meet these challenges, with a focus on setting up structures to join local awareness with global compliance approaches.

Register Here

October 20 New Frontiers of the Intersection Between Privacy Laws, Antitrust and Misleading Advertising Enforcement Canadian Bar Association (CBA) 2020 Fall Competition Law Conference The Bureau is pushing the boundaries of the intersection between competition and privacy laws, and the pandemic has accelerated pre-existing trends in digital enforcement. The FTC is similarly continuing to pursue robust enforcement in cutting-edge areas such as data privacy and fintech. Join Alysa Hutnik and a host of others for this session for a conversation on misleading advertising priorities in Canada and the U.S. in the digital economy.

Register Here

November 10 Nuts and Bolts of Basic Advertising: Substantiation, Disclosures and Social Media 2020 ANA/BAA Marketing Law Conference: A Virtual Experience

Join partner Gonzalo Mon for this session, which will cover important principles of advertising law, including prerequisites to prove your claims, the type of proof required, how to make disclosures, and application of these principles to social media. In addition, it will cover options for challenging competitors. Whether new or experienced to advertising, this session will give you down-to-earth information you need to put later sessions into context. This presentation will put a great new spin on important topics.

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October 21 2020 Election Outlook: An In-Depth Analysis of the Race for the White House and Congress Please join Kelley Drye's Government Relations and Public Policy Group as we present a bipartisan assessment of the upcoming 2020 elections. Election analysts Greg Speed and Jim Ellis will provide a detailed and data-packed assessment of the current state of play in the race for the White House. In addition, they will cover key Senate and House races and the prospects for control of both chambers in the upcoming 117th Congress.

Register Here

November 10, 2020 The Future of Consumer Protection and Privacy - What to Expect from the FTC As the election approaches, our government prepares for a transition – either to the second term under President Trump or to the Biden Administration. As this is occurring, consumer protection law also finds itself in transition. Partners Christie Grymes Thompson and John Villafranco will focus on what this means, in terms of recent enforcement activities and priorities related to privacy, data security, marketing, advertising, and other areas of consumer protection.

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For on-demand webinar replays and other content organized around Advertising and Marketing Standards, Privacy and Data Security and Consumer Product Safety, visit the Advertising and Privacy Law Resource Center microsite. Available via www.KelleyDrye.com, the site provides practical, relevant information to help in-house counsel answer the questions and solve the problems that they face on a daily basis.

The latest episode of the Ad Law Access Podcast discusses three keys to making compliant health claims: determining the product regulatory classification, claim substantiation standards, and the importance of context. This episode is a prequel to her earlier Health Claims in the Context of COVID-19 episode which focused on recent FTC and FDA enforcement relating to false COVID-19 health claims and the importance of considering the current pandemic context in health-related marketing.

Listen on Apple, Spotify, Google Podcasts, SoundCloud or wherever you get your podcasts.

For more information on health claims and other topics, visit:

• Kelley Drye's Advertising Law Practice Page
• Advertising and Privacy Law Resource Center
• Ad Law Access Blog
• Ad Law News and Views Newsletter

On the latest episode of the Ad Law Access Podcast, Advertising and Marketing practice Christie Thompson discusses the key regulatory requirements (the FTC’s “Green Guides”) and practical tips for companies to consider when engaging in green marketing in the United States.

Listen on Apple, Spotify, Google Podcasts, SoundCloud or wherever you get your podcasts.

For more information on these and other topics, visit:

• Advertising and Privacy Law Resource Center
• Ad Law Access Blog
• Ad Law News and Views Newsletter
• Kelley Drye’s Advertising and Marketing Practice Page

This interpretation of New Jersey’s 36 year-old Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14, et seq., is certainly aggressive, and quite possibly wrong. But because the theoretical damages in these cases is so high, proving the theory wrong in court would entail significant risks. The plaintiffs’ bar is counting on lawsuit targets preferring to settle.

TCCWNA precludes any “seller” from “offer[ing] to any consumer . . . or enter[ing] into any written consumer contract . . . or display[ing] any written consumer warranty, notice or sign . . . which includes any provision that violates any clearly established legal right of a consumer or responsibility of a seller . . . as established by State or Federal law at the time. . . .” A warranty may state generally under TCCWNA that certain of its exclusions may not apply in some jurisdictions, without specifying which provisions or which states those may be, but “[n]o consumer contract, notice or sign shall state that any of its provisions is or may be void, unenforceable or inapplicable in some jurisdictions without specifying which provisions are or are not void, unenforceable or inapplicable within the State of New Jersey.”

“Any person who violates [TCCWNA] shall be liable to the aggrieved consumer for a civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer, together with reasonable attorney’s fees and court costs.” Because the statute makes it unlawful merely to “display” a “notice or sign” that purports to disclaim a “clearly established legal right,” the argument is that a consumer is “aggrieved” under the statute merely by virtue of having seen the “notice or sign” before making a purchase, whether or not the consumer had any problems with the purchase.

In December 2015, the Third Circuit Court of Appeals issued an unpublished, non-precedential decision reversing dismissal of a TCCWNA class action where an extended-service warranty firm’s contract purported to preclude consumers from seeking attorney’s in lawsuits, because New Jersey law precludes waivers of statutory rights to fee awards. That decision has added new fuel to the TCCWNA fire. New Jersey businesses are not happy, but no legislative fix has yet found any traction.

What can online retailers, and those with brick-and-mortar presence in New Jersey, do to avoid becoming the next TCCWNA defendant?

One necessary step is to examine your terms and conditions carefully and consult counsel familiar with New Jersey consumer protection law. If a particular disclaimer of liability, though unenforceable in New Jersey, is otherwise important to you, TCCWNA allows you to keep it, but only if you expressly state that the disclaimer does not apply in New Jersey. Most online retailers’ terms of service already contain special notifications about consumers’ rights under California’s “Shine the Light” marketing law; the bite of these recent TCCWNA suits may mean it is time to include special notifications to New Jersey consumers, too.

New Jersey’s TCCWNA wave also highlights the value of a well-drafted arbitration clause and inclusion of a provision requiring claims to be arbitrated individually, rather than on behalf of a class. New Jersey state courts are relatively unfriendly toward arbitration clauses, and will enforce them only if consumers received clear notice a contract contained an arbitration clause and class waiver. We have a model arbitration provision that takes account of recent court decisions, and we can help you implement the provision in ways that maximize its potential for enforceability.

Increased Activity at the NAD and in the Courts

Most advertising cases are filed either in the courts or before the self-regulatory body, the National Advertising Division of the Council of Better Business Bureaus (“NAD”). The New York Times reported that complaints filed with the NAD hit a record number of 84 in 2008. The year before, the NAD received only 62 complaints, and it received only 52 complaints in 2006. The NAD is on track for a new record in 2009, with 82 complaints filed so far.

No reliable numbers are available for false advertising cases in the courts, but lawyers in the field report an increase. Cases in the courts and at the NAD have involved advertising for telecommunications products and services, health benefits claims for foods and dietary supplements, advertising for over-the-counter drugs, advertising for personal care products, advertising about taste tests, pet food advertising, claims about savings to consumers, and claims that products are environmentally friendly.

For an analysis of alternatives to standard court proceedings, see the article, “Making it Stop: A Practical Guide to Challenging Your Competitor’s Advertising Claims.”

Aggressive Enforcement at the FTC

While competitor challenges have heated up, advertisers also should be aware that the Federal Trade Commission (“FTC”) has remained active and aggressive. David Vladeck became the Director of the Consumer Protection Division in April. He has stated in speeches that enforcement priorities will include advertising related to consumer economic welfare, advertising related to consumer health, advertising about environmental benefits, and advertising to children. Cases initiated by the FTC have reflected these priorities.

Additionally, on October 5, 2009, the FTC released stringent new guidelines for using endorsers in advertisements. These guidelines affect a broad array of advertisers, including those who do not use typical consumer, celebrity, or expert endorsers. The guidelines, for instance, cover the situation where a company gives free products to bloggers for their honest, unedited opinions and the situation where an employee, on her own accord, disseminates a message about her employer’s products or services on the internet. For more information, reference the Kelley Drye Client Advisory, “FTC Issues Final Sweeping Changes to Endorsement and Testimonial Guides.”