January 12, 2012

Advertising News & Analysis - January 12, 2012

5 min


FTC Bans Payment Processor from Using Remotely Created Payment Orders

The FTC announced on January 5 that it has settled charges that Landmark Clearing, Inc. and three of the company’s principals used a novel payment method called "remotely created payment orders" to allow merchants access to consumer bank accounts.  According to the FTC, Landmark allegedly used remotely created payment orders to debit, or attempt to debit, millions of dollars from consumers' accounts without their consent over the past three years.

The FTC alleges that because of the “astronomical” return rates on the payment orders, sometimes in excess of 80 percent, Landmark should have known that its clients were not securing authorization from consumers to make the debits. By continuing to process for those clients, the FTC said in its press release, Landmark played a critical role in its clients' unlawful business practices.

Unlike credit cards and other payment mechanisms, remotely created payment orders are not, according to the FTC, subject to significant regulatory oversight and monitoring.  In fact, the FTC’s complaint alleges that Landmark actively promoted remotely created payment orders as a way to avoid scrutiny, advertising on its website that merchants "with a high percentage of overall returns" would benefit from using its remotely created payment order product.

The settlement order bans Landmark and the named individuals from processing payments through remotely created payment orders and similar payment mechanisms.  The order does permit the defendants to provide other forms of payment processing, subject to stringent conditions. The settlement order:

  • Permanently prohibits the defendants from processing payments for any client they know, or should know, is violating the FTC Act or the Telemarketing Sales Rule ("TSR");
  • Requires them to screen and monitor prospective and existing clients to determine whether their business practices violate the FTC Act or the TSR;
  • Requires them to monitor clients' total return rates, reasons for returned transactions, and unusual transaction patterns, values, and volume;
  • Prohibits them from failing to investigate a total return rate exceeding 2.5 percent, and requires them to stop payment processing for a client unless the investigation shows its business practices did not violate the FTC Act; and
  • Bars them from referring any past remote payment clients to third parties for a fee, and from selling or otherwise benefitting from consumers' personal information.

Go here to read the FTC’s press release.

Go here to read the FTC’s complaint and final order in the Landmark case

Despite Opposition, ICANN Launches Top-Level Registration

Today, January 12, 2012, marks the opening of the application window for new top-level domains.  While applications will not be made public until after the window closes in April, many believe the Internet Corporation for Assigned Names and Numbers (“ICANN”) is expecting a large number of applications.  The decision to open up the top-level domains, which currently consist of just 22, including .com, .net, .org, .biz., and .info, to a potentially unlimited number has been a long and highly controversial process. 

Despite outcry from brand owners, the FTC and some members of Congress, ICANN is moving forward with the launch of the top-level domain registration process.  Venable is advising at least one client applying for a new top-level domain, so we will be able to experience the process first-hand.

Go here to read a National Public Radio story about the start of the top-level domain registration process. 


Go here to read an article by Janet F. Satterthwaite and Jeffrey D. Knowles about ICANN’s opening of top-level domain registrations published in Response magazine. 



Know the Rules Before Working With Nonprofits

It is increasingly common for for-profit marketers and charitable organizations to work together.  While these relationships can be beneficial to both parties, they can also create regulatory and legal issues for the both parties.  In the January edition of the “DRMA Voice,” Venable’s Jeffrey D. Knowles and Jonathan L. Pompan discuss issues for-profit companies should consider before partnering with a charity.

Go here to read their column.



The 8th Annual Anti-Counterfeiting & Brand Protection Summit – San Francisco  
January 23-24, 2012
Join Partners, Marcella Ballard and Justin Pierce as they participate in panel discussions on policies and strategies to protect against counterfeiting, piracy, parallel importing and product diversion. Hosted by the International Quality and Productivity Center (IQPC). Justin Pierce will speak on the panel entitled: "Quantifying the Potential Impact of Counterfeiting on Your Brand and Your Bottom Line" on January 24 at 9:00 a.m. (PST). Marcella Ballard along with other industry professionals is speaking on a panel called "What Steps Can Brand Owners Take to Counter the Ease of Distribution, Communication and Anonymity the Internet Affords?" on January 25 at 11:15 a.m. (PST).

ACI’s Advertising Law Conference – New York
January 23-24, 2012
Venable is a proud sponsor of this conference, join us for a presentation by Roger A. Colaizzi on Battle of the Brands: Resolving Disputes Involving Competitor’s Comparative Claims.

ACI’s Consumer Finance Class Actions & Litigation – New York
January 26-27, 2012
Venable is a proud sponsor of this conference, join us for a presentation by Thomas E. Gilbertsen on Dodd-Frank & the CFPB: A Look into Today’s Most Important Issues, the Status of the Bureau and Which Regulations Will Most Impact Consumer Finance Institutions & Litigators in the Next Year.

Marcus Evans Legal Risks in Emerging Technologies – Alexandria
January 26-27, 2012
Venable is a proud sponsor of this event, join us for a presentation by Melissa Landau Steinman on Effectively Using New Promotional Techniques on Social Media and Mobile Applications Without Violating the Law.

Understanding the Legal Issues in Social Networking, LIVE Webcast for The Knowledge Congress
February 8, 2012
Venable is a proud sponsor of this event, join us for a presentation by Melissa Landau Steinman on the legal issues companies face related to social networking, and learn strategies to address the legal implications, mitigate risks and make the most of social networking efforts.

ERA Great Ideas Summit – Miami
February 27-29, 2012
Venable is a proud sponsor of this event, visit us at our Exhibit Booth (no. 105).

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