September 30, 2016

SCOTUS examines credit card surcharges, enforcing website terms of use, and more in this issue of Advertising Law News & Analysis

5 min


Download Venable's Advertising Tool Kit Today

Venable recently published the expanded and updated fifth edition of its Advertising Law Tool Kit. The Tool Kit is a handy desk reference designed to help in-house counsel and marketers identify and mitigate common advertising law issues. In addition to newly added topic areas, the fifth edition also includes the new "Be Prepared" sections, which provide overviews on how to address Lanham Act litigation, state attorney general inquiries, and Federal Trade Commission (FTC) investigations. The Tool Kit is viewable online and can be downloaded to your computer or mobile device, or printed.

Access the Tool Kit now.

Click here if you would like to receive a printed copy of the Tool Kit.


Supreme Court Takes NY Credit Card Surcharge Case

The United States Supreme Court agreed to hear a case challenging the New York State law that prohibits retailers from tacking surcharges onto transactions where consumers pay with credit cards rather than cash.

Read Reuters coverage of the announcement.

Read the briefs and orders filed in the case, as well as the Second Circuit's Opinion.

View orders issued by the Supreme Court today.


Is Your Site Just Linking for Trouble?

Website disclosures are always a hot topic. They are one of the most important, nuanced, and frequently misunderstood areas of a website, and the laws, regulations, and precedent governing them evolve constantly. If a company goes to the effort of drafting terms of use for its website, mobile application, or other online platform, it should also carefully consider how it plans to enforce those terms of use, write Venable attorneys Jeffrey D. Knowles and Kimberly Culp in the September edition of Response magazine.

Read the article to learn why marketers should resist the temptation to use so-called "browsewrap" agreements when disclosing terms of use and other important agreements to consumers.

When Can I Use a Person's Likeness in My Game?

The likenesses of real persons often appear in video games, and game developers should tread carefully when creating avatars based on real people, writes Venable attorney Kimberly Culp in a recent article for video game site Gamasutra. It is critical for developers to understand the "right of publicity" that individuals have to their name, image, likeness, or other objective aspects of their identity.

Read Culp's article to learn what game developers, and other marketers, can do to identify potential issues and avoid legal risk.

Is It The End of the [TCPA] World As We Know It? (and We Feel Fine)

The recent settlement in Birchmeier et al. v. Caribbean Cruise Line Inc. et al. may end up being the largest Telephone Consumer Protection Act (TCPA) class action settlement in history. It is a posterchild for everything wrong with the TCPA, write Venable attorneys Daniel S. Blynn, Christopher Boone, and Samuel D. Boro in a recent post to Venable's advertising law blog.

The authors are not the only observers who have noted that application of the TCPA has strayed far from its intended purpose. During a recent hearing by the House Energy and Commerce Committee's Subcommittee on Communications and Technology, Representative Blackburn (R-TN) cited the disconcerting growth in TCPA Litigation – up 940% from 2010 to 2015 – and suggested that plaintiffs lawyers use the TCPA as a personal "piggy bank."

Read the full blog post to learn why the Caribbean Cruise Line settlement is so broken and why Congress is giving the TCPA a hard look.

Watch video of the House hearing here.

Review a Venable-compiled list of recent TCPA filings here.

Exit Interviews: First Line of Defense Against Trade Secret Misappropriation

Departing employees pose one of the biggest risks of misappropriation of a company's proprietary and confidential information and trade secrets, writes Venable partner Thomas E. Wallerstein in a recent post to the firm's Trade Secrets and Transitions Blog.

When it comes to protecting trade secrets from misappropriation, there are three keys to a successful exit interview process:

  • Ask employees the names of their new employers, where they will be working, and what exactly their job duties will be in order to assess whether and the extent to which any information they had access to could be used against your company to its competitive disadvantage.
  • Tell departing employees about their continuing obligations to protect confidential company information.
  • Audit, collect, and inventory any digital devices the departing employees have that contain company information.

Read the full blog post to learn why conducting sufficiently detailed exit interviews is key to mitigating the risk of trade secret misappropriation.

Upcoming Events:

SupplySide West

October 4-8, 2016 | Las Vegas, NV

Venable will be the Official Legal and Regulatory Partner at this year's SupplySide West Global Expo & Conference. This conference focuses on the exploration, discovery, innovation, and marketing strategy around the development of finished consumer goods in the animal nutrition, beverage, cosmetics, dietary supplements, sports nutrition, food, and pharmaceutical industries. Venable's Todd Harrison and Sen. Mark Pryor will participate in a workshop panel on "State Attorneys General: Communication & Mitigation Strategies." Be sure to visit us at our offices directly in front of the SupplySide West registration entrance in the Expo Hall holding area! 


October 5-7, 2016 | Chicago, IL

The Lend360 conference offers the entire spectrum of the online lending industry, including valuable industry information and targeted networking opportunities. Venable associate Alexandra Megaris will be moderating a panel discussion on "The Future of Online Advertising and Marketing for Consumer and Business Lending" on Thursday, October 6, 4:30 - 5:30 p.m. CT. 

ADSUM - Advertiser Summit

December 2-5, 2016 | Aspen, CO

Venable is a proud sponsor of the first ADSUM Advertiser Summit in Aspen, Colorado. ADSUM is a conference dedicated to unifying advertisers and focused on issues unique to online merchants and retailers. Join Venable attorneys Ari N. Rothman and Shahin O. Rothermel, who will present and moderate a panel discussion on "Regulatory Activities, Compliance Best Practices, Offline vs Online Lessons" on Saturday, December 3.