Advertising, Marketing & Consumer Protection

FTC and State Attorneys General Investigations and Enforcement Actions 

• Defending consumer products company in an FTC ROSCA and CAN-SPAM investigation.
• Defending in California federal court a company (and its owner) that provides "back-end" fulfilment services to businesses in the debt industry in litigation brought by the DOJ on behalf of the FTC, alleging violations of the TSR and Section 5 of the FTC Act.
• Representing individual in FTC computer support investigation brought under TSR and Section 5 of the FTC Act.
• Defense of charitable organization and its executive director in FTC TSR investigation.
• Representing large nonprofit health system in DC Attorney General investigation of sale of hospital assets.
• Recently defended nonprofit business improvement district in DC Attorney General investigation, resulting in closure of investigation without action.
• Defended former Chief Executive Officer of large health insurance technology company in FTC investigation, resulting in zero-dollar settlement.
• Defended market-leading home security company in first-ever FTC investigation brought under the Consumer Review Fairness Act (CRFA), regarding the company’s use of a non-disparagement provision in website terms of use, resulting in closure of the investigation.
• Defended an event space provider and its owner in an action brought by the DC Attorney General, alleging violations of the DC Consumer Protection Procedures Act.
• Represented a leading consumer brand in a Georgia Attorney General investigation concerning dealer electronic contracting and notice of cancellation disclosure practices, resulting in no action taken by the regulator.
• Defended non-conventional education companies in enforcement actions brought by the FTC and the Utah Division of Consumer Protection under the FTC Act, the TSR, and Utah state consumer protection and telemarketing statutes.
• Defended financial education/online trading company and its CEO in an FTC and Utah Division of Consumer Protection marketing and CRFA investigation.
• Represented consumer loan lead generator and its CEO in FTC and New York Department of Financial Services (DFS) investigations.
• Represented two charities and three charity executives in the first joint law enforcement action ever brought against the charity sector by the FTC, 50 state attorneys general, and the attorney general for the District of Columbia. Obtained removal of individual defendant from FTC/multi-state complaint and negotiated the preservation of the organization’s flagship charitable program.
• Represented a nationwide mortgage lender in an investigation by the Consumer Financial Protection Bureau into alleged violations of the Real Estate Settlement Procedures Act. Efforts included successfully limiting the broad scope of civil investigative demands to minimize the burden of compliance as well as preparing and defending the business through a formal investigational hearing, bringing proceedings to a close without any action by the CFPB.

Consumer Class Actions

• Defended a magazine publisher in putative class actions filed in Michigan federal courts, asserting violations of Michigan's Preservation of Personal Privacy Act, which resulted in the plaintiffs voluntarily dismissing their complaints without settlement.
• Defended several energy supply companies in separate consumer class actions filed in New York, Connecticut, and Pennsylvania federal courts, alleging violations of state consumer protection and false advertising laws arising out of the suppliers' respective variable-rate advertising and marketing practices.
• Defended one of the nation's largest residential and commercial security monitoring companies against a putative class action in Florida state court, claiming violations of the Florida Consumer Collection Practices Act based on alleged oral contracts formed in violation of the frauds statute. The case was resolved after the defendant filed a motion for summary judgment as to plaintiff's standing (a so-called "pick-off" motion).
• Defeated a putative class action alleging that a mortgage lender, as an alleged agent of the Federal National Mortgage Association, violated the Due Process Clause of the Fifth Amendment by conducting nonjudicial foreclosure hearings without adequate notice or a meaningful hearing. In the resulting order, the court rejected all of plaintiffs’ theories and agreed that Fannie Mae (and, by extension, the client) was not a governmental actor subject to the Fifth Amendment.
• Represented an industry trade association in defense against putative nationwide federal antitrust class actions consolidated through the MDL panel, resulting in a favorable settlement.

TCPA, FTSA, and State Telemarketing Consumer Protection Laws

• Defending a technology company that provides cloud-based platforms to the healthcare industry, against a "junk fax" TCPA class action in Maryland federal court, and representing the company with respect to a related petition for an expedited declaratory ruling pending before the Federal Communications Commission (FCC).
• Defending the second largest residential solar contractor in the country in separate putative TCPA class actions filed in California and Illinois federal court, alleging the receipt of unsolicited, autodialed telemarketing calls, and calls to telephone numbers registered on the National Do Not Call Registry and/or the defendant’s internal do not call list. We also defended the company in putative TCPA and FTSA class actions filed in Kansas federal and Florida state courts, respectively.
• Defending a plaintiffs-side consumer protection law firm in separate putative class and individual TCPA class actions (with pendant state telemarketing law claims) filed in New York, Texas, and Michigan federal courts, alleging unsolicited telemarketing calls and text messages about the Camp Lejeune water settlement.
• Represented DISH Network at trial in one of the highest stakes telemarketing cases in the nation, which was brought by the United States government (specifically, the FTC) and the states of California, Illinois, North Carolina, and Ohio seeking civil penalties upward of $23 billion.
• Defended one of the nation's largest residential and commercial security monitoring companies in a putative class action filed in Washington State court, alleging violations of the Washington Commercial Electronic Mail Act (CEMA) and state Consumer Protection Act arising out of purported unlawful text messages sent to a realtor.
• Defended men’s lifestyle product, fashion, and accessory e-commerce company in a putative FTSA class action filed in a putative FTSA class action filed in California federal court, alleging the receipt of unsolicited, autodialed marketing text messages.
• Defended luxury kitchenware and cookware company in a putative FTSA class action filed in Florida state court, alleging the receipt of unsolicited, autodialed text messages.
• Defended a women’s luxury “athleisure” clothing company in a putative FTSA class action filed in Florida state court, alleging the receipt of unsolicited, autodialed marketing text messages.
• Defended a top online women's fashion store in a putative TCPA class action in Maryland federal court, alleging calls to telephone numbers registered on the defendant's internal do not call list; the plaintiff voluntarily dismissed her complaint after receiving the defendant's Rule 11 motion for sanctions. We also defended the company in putative TCPA and FTSA class actions filed in California, Louisiana, Georgia, and Florida federal courts and Florida state court, obtaining dismissal in one case, forcing the plaintiff to voluntarily dismiss her case based on a Rule 11 motion in another, and favorably resolving the others.
• Defended one of the nation's largest residential and commercial security monitoring companies in Tennessee federal court against allegations that it placed nearly 1,200 autodialed non-telemarketing calls, some of which also purportedly used an artificial or prerecorded voice, without the plaintiff's consent. After prevailing on summary judgment and moving for sanctions against the plaintiff's counsel, the plaintiff stipulated to dismissal of her appeal in the Sixth Circuit. We also previously represented the company in putative class and individual TCPA actions (some with pendant state collection practices act claims) in Florida, Illinois, West Virginia, Pennsylvania, Idaho, California, North Carolina, and Rhode Island federal courts, variously alleging the use of an autodialer and/or prerecorded messages to place calls without the plaintiffs' respective consents or after they had revoked their consent, as well as violations of the TCPA's do not call provisions.
• Defended professional charity fundraiser in a putative TCPA class action in Illinois federal court, and obtained summary judgment in a landmark decision.
• Prevailed on summary judgment to defeat a putative class action seeking more than $40 million in statutory damages under the Telephone Consumer Protection Act. The order provides valuable support to defendants’ efforts to defeat claims based on the unauthorized conduct of third-party vendors.

Lanham Act False Advertising Litigation and Other Competitor Challenges

• Defended Lanham Act false advertising litigation, with pendant state consumer protection act claims, in Ohio federal court on behalf of a dietary supplement manufacturer against a competitor arising out of the competitor's false advertising for various beets-based supplement.
• Defended a nutritional supplement company in a suit filed by an ingredient manufacturer asserting claims of patent infringement, and unfair competition and false advertising under the Lanham Act.
• Represented nation's largest residential and commercial security monitoring company in a National Advertising Division (NAD) challenge to "do it yourself" competitor arising out of the competitor's express and implied claims for its speed of dispatch, monitoring, and notification capabilities; product line; endorsement and testimonial practices; "best" and "#1" claims; and battery life representations, resulting in a favorable initial and subsequent decision after a challenge.
• Represented a security monitoring company in an NAD Fast-Track SWIFT challenge to "do it yourself" competitor's "no contract required" claims, resulting in a favorable decision.