Marketing Compliance - December 2023
Klein Moynihan Turco LLP
We ensure our clients are compliant and up-to-the-minute on all things Internet, technology, and marketing law.
TCPA Autodialer Definition To Be Expanded By SCOTUS?
The United States Supreme Court (“SCOTUS”) has been asked to revisit its landmark TCPA autodialer ruling from 2021. Following a victory by Reward Zone USA, LLC at the Ninth Circuit Court of Appeals, Lucine Trim recently filed a petition for a writ of certiorari arguing that courts have been misinterpreting and misapplying the SCOTUS-refined ATDS definition contained in the Facebook decision of 2021. ?
What is the basis for the challenge to the TCPA autodialer definition? Read more.
Temu On Trademark Rampage
Let it be known: Temu will use all legal means necessary to protect its trademark rights. Since its stateside launch last September, Temu has already filed nine federal lawsuits for alleged trademark infringement. For the unfamiliar, Temu offers discounted products, in large part, by shipping them from China directly to consumers. Approximately four months after launch, Temu surpassed Amazon and Walmart to become the most downloaded app in the United States. Temu is now addressing the same issue that plagues many other up and coming brands: unauthorized trademark use.?
ESPN’s Giant Sports Gambling Licensing Deal
On August 8, 2023, PENN Entertainment (“PENN”) and ESPN announced a groundbreaking sports gambling licensing arrangement. In exchange for $1.5 billion cash and additional stock warrants, ESPN will grant PENN the exclusive right to use ESPN’s trademark for its United States sports gambling operation. The arrangement will last ten years, with an option to extend for another ten years.
Class Decertification Upheld In Appeal Of TCPA Fax Lawsuit
On October 25, 2023, the United States Court of Appeals for the Ninth Circuit issued its decision in True Health Chiropractic, Inc. v. McKesson Corp., finding that the lower court: 1) had correctly determined that Defendants violated the TCPA’s junk fax prohibition; 2) had properly decertified the proposed class; and 3) did not abuse its discretion in denying treble damages to Plaintiffs.?
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SCOTUS To Decide Whether Coinbase Sweepstakes Matter Goes To Arbitration
On November 3, 2023, the United States Supreme Court granted a writ for certiorari in Coinbase Inc. v. Suski. Before the Court is the issue of whether silence as to arbitration in Coinbase’s Sweepstakes Contest Rules affects the arbitration clause contained in its User Agreement. In general, companies prefer to arbitrate consumer complaints because it is quicker and more cost-efficient than litigation. Coinbase is hoping that the Supreme Court rules that an arbitrator, and not a court of law, should decide which of its two seemingly conflicting dispute resolution clauses controls.
Gambling Advertising And The Law
In late August, DraftKings was fined $94,440 in Maryland for allegedly advertising to underage fantasy sports players. A little over one month later, PointsBet was fined $25,000 in New Jersey for undisclosed gambling advertising violations. It is admittedly difficult for gambling advertising companies to manage compliance with numerous and differing regulations across state lines. However, it is crucial that they do.
OCC TCPA Compliance Procedures Updated
As readers of this blog will recall, numerous federal agencies announced a crackdown on the marketing industry, specifically with respect to Telephone Consumer Protection Act (“TCPA”) compliance, in July of this year. On November 1, 2023, the Office of the Comptroller of the Currency (“OCC”) became the latest agency to join in the campaign by issuing its TCPA-related revised examination procedures (“Revised Procedures”). The OCC TCPA-related procedures are interagency in nature, involving the OCC, the Federal Deposit Insurance Corporation, and the National Credit Union Administration.
What will the OCC TCPA revised procedures include? Read more.
The Impact Of AI On TCPA Litigation
On November 15, 2023, the Federal Communications Commission (“FCC”) voted in favor of undertaking a formal inquiry to evaluate the impact that artificial intelligence (“AI”) technology will have on Telephone Consumer Protection Act (“TCPA”) litigation and illegal robocalls. As readers of this blog know, the word “robocall” does not have a universally accepted definition, with some considering it to mean prerecorded, autodialed calls, while others deeming it to encompass all unsolicited telemarketing calls.