Tag Archives: Davis & Gilbert

ILN Today Post

IRS Begins Issuing ACA Penalty Notices to Employers

The Internal Revenue Service (IRS) has made good on its promise to begin issuing Employer Shared Responsibility Payment (ESRP) notices to employers that have not provided adequate health insurance to their employees as required under the Patient Protection and Affordable Care Act (ACA). The ESRP notices being sent out are based on the information the IRS received from employers on their IRS Forms 1094-C and 1095-C for the 2015 tax year. Each ESRP notice includes a proposed ESRP amount for the employer to pay, an explanation for how the proposed ESRP amount was calculated, and IRS Forms 14764 (ESRP Response) and 14765 (Employee Premium Tax Credit Listing).

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Transformation Sweeping Advertising and Marketing: Regulatory

As mentioned, at the 39th Association of National Advertisers/Brand Activation Association Marketing Law Conference, “Breakthrough: Legal Strategies for Dynamic Businesses,” I gave a presentation on the key trends and legal developments sweeping the advertising and marketing ecosystem. Today I will share with you final installment of this series…

Let’s take a look at the regulatory landscape today. The Federal Trade Commission (FTC) has a long history of enforcement against false and misleading advertising.

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Transformation Sweeping Advertising and Marketing: Data

As mentioned, I gave a presentation on the key trends and legal developments sweeping the advertising and marketing ecosystem at last week’s 39th Association of National Advertisers/Brand Activation Association Marketing Law Conference, “Breakthrough: Legal Strategies for Dynamic Businesses.” Today I will share with you the second installment of this series…

The question of who has access to consumer data and device information – and how it gets used – is one that we all need to worry about.  But when it comes to brands, how can they create compelling content to convince a consumer to stay connected and share their data?

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Appeals Court Enforces Arbitration Clause in Hyperlinked Terms & Conditions

In an important decision concerning the enforceability of an arbitration clause included in a mobile app’s Terms of Service, the federal appeals court in New York recently found that a reasonably prudent smartphone user would recognize that blue, underlined text within an Internet-linked app leads to another page where additional information can be found.

The U.S. Court of Appeals for the Second Circuit therefore held that a mobile app’s registration screen, notifying the user that by registering, he or she will be bound by the app’s “Terms of Service,” is sufficient to bind that user to a contractual arbitration provision included in those Terms of Service, reversing the district judge’s decision that determined such hyperlinked terms to be unenforceable.

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Transformation Sweeping Advertising and Marketing: Influencer Marketing

It was an incredible three days in Chicago at the 39th Association of National Advertisers/Brand Activation Association Marketing Law Conference, “Breakthrough: Legal Strategies for Dynamic Businesses.” During yesterday morning’s general session, I gave a presentation titled “Transformation Sweeping Advertising and Marketing: Key Trends and Legal Developments,” exploring not only the trends and changes in the advertising and marketing ecosystem, but how lawyers can and are responding to keep pace with the industry and their business clients’ demands.  In the next series of posts, I will share some highlights from my presentation. Let’s dive into the first one…

Influencer marketing isn’t just the fastest channel for consumer acquisition – it’s also one of the most cost-effective.  Studies have shown that working … Continue Reading

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How PR firms must navigate website compliance under the Americans with Disabilities Act

Public relations firms increasingly develop content and websites for their clients’ programs, products, and services. It is also common for PR firms to enter into client agreements in which they are asked by their clients to “comply with all laws.” A prior column explained that this seemingly innocuous provision may leave PR firms open to liability for failure to comply to unforeseen and unspecified laws. This article provides another example of an unforeseen source of potential liability for PR firms.

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FTC Settles with Mobile App Developer Over Unauthorized Charges

The Federal Trade Commission (FTC) has settled with Pact, Inc. (Pact) over allegations that Pact’s mobile app, which allows users to set fitness goals and creates financial penalties for not meeting them, failed to adequately disclose its cancellation policy and continued to charge users even after they met their goals or cancelled the service. Pact agreed to a $1.5 million monetary settlement, including over $900,000 that will be returned to injured consumers.

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FTC Charges Online Negative Option Marketing Scheme with Deceiving Shoppers

The Federal Trade Commission (FTC) has charged an online marketing operation involving about 80 companies with deceptively luring consumers into expensive negative option plans by using an initial low-cost “trial” offer. A federal district court in Nevada has preliminarily enjoined the operation at the request of the FTC.

The FTC’s Complaint
The FTC’s complaint alleges that, since the mid-2000s, the defendants have sold personal care products, including tooth-whitening products, online and subsequently obtained consumers’ credit card information by “enticing” them to sign up for a low-cost “trial product.” The defendants then used such billing information to charge consumers for unauthorized subscriptions with recurring charges.

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Trump’s Branding Problem

Donald Trump came to the White House with the lowest approval rating ever for an incoming president. From a branding perspective, things have not been getting better. On the 144th day of his presidency, Trump hit a 60% disapproval rating, giving him the dubious distinction of being the fastest to ever reach that mark (beating George H.W. Bush, who took 1,290 days to get there).

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First Circuit Requires Identifiable Injury for Claims Asserting Deceptive Retailer “Compare At” Prices

Consumer class actions alleging that retailers are using deceptive comparison pricing tactics online and in stores are becoming increasingly common under state consumer protection statutes and common law causes of action.

In these cases, a retailer’s success in making a motion to dismiss the action depends, in large part, on the jurisdiction in which the case is filed. The U.S. Court of Appeals for the First Circuit recently provided additional support for retailers operating under Massachusetts law by affirming the dismissal of two separate deceptive pricing class action complaints against national retailers Nordstrom and Kohl’s. In its opinions, the court held that the Massachusetts Consumer Protection Act (MCPA) and Massachusetts common law require an identifiable injury beyond a plaintiff’s subjective belief about the value the product he or she is purchasing.

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