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The Florida legislature recently passed CS/SB 1120 updating and significantly expanding the state’s existing telemarketing laws, the Florida Telemarketing Act and the Florida Do Not Call Act. Many of the new provisions are similar to the TCPA, including, most importantly, adding a private cause of action for any violations of the Florida Do Not Call Act and requiring prior express written consent for automated or prerecorded calls or texts. If the bill becomes law, it will go into effect on July 1, 2021.
Last week, the Seventh Circuit reminded advertisers of the narrowing availability of insurance coverage for Telephone Consumer Protection Act (TCPA) claims. In Mesa Laboratories v. Federal Insurance Co., the court rejected a fax marketer’s bid to make its insurer pay for its defense and settlement of an underlying unsolicited fax lawsuit. This decision underscores the insurance industry’s recent trend of limiting TCPA coverage under general policy forms and requiring policyholders to seek out and purchase specific coverage for those types of claims.
Last Month, in AMG Capital Management, LLC v. FTC, the Supreme Court ruled that Section 13(b) of the FTC Act does not allow for monetary remedies. While the importance of this ruling is plain, its implications are only now becoming more clear. Just yesterday, for example, in FTC v. Cardiff, a California federal court found the FTC liable to pay all of the Receiver’s fees from the date of the AMG ruling going forward. The Court explained that it would be inequitable for the defendants to pay these fees, now that the Supreme Court has clarified that the 13(b) relief provided only allowed for an injunction.
Recently, the U.S. Chamber of Commerce published a letter to the Committee on Commerce, Science, and Transportation, the Congressional Committee currently working on draft language for a new Section 13(b) of the FTC Act. The Chamber’s letter cautions Congress to ensure that any new statutory language not give the FTC too much authority. In advocating caution, the Chamber makes an important, if subtle, point. The FTC is now arguing that the Supreme Court “took away” 13(b) powers it had before. In reality, though, the Supreme Court in AMG explained that FTC never had the power it arrogated in the first place.
Recently lobbying group PoliticallyInFashion partnered with 40 organizations and individuals to submit a letter to the FTC asking the agency to conduct a comprehensive review of the Green Guides. Citing “an exponential growth in sustainability claims by businesses,” the group has asked the FTC to provide more guidance on use of the terms “organic” and “sustainable.” The Commission declined to provide specific definitions for either term when the agency last updated the Guides in 2012. PoliticallyInFashion suggests that retailers’ increased focus on sustainability claims, and consumers’ increased interest in retailers’ environmental commitments, warrants additional guidance on the terms. The FTC is scheduled to undertake a review of the Green Guides in 2022.
The California Assembly recently passed AB-1262 updating an existing law to further limit the use of personal information collected through connected TVs and smart speaker devices.
Over the last few months, a wave of consumers have filed putative class action complaints against a long list of consumer-facing website owners/operators and their software providers alleging invasion of privacy rights under statutes focused on wiretapping and eavesdropping.
The Senate Commerce Committee today voted overwhelmingly to move forward with Lina Khan’s nomination as FTC Commissioner, signaling that Khan is likely to ultimately be confirmed as the youngest Commissioner ever at 32. As we previously discussed here, Khan is primarily known as an antitrust scholar advocating for more exacting scrutiny of big tech companies.
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American Bar Association
July 12 - 13, 2021 | Virtual Conference