On November 11, 2020, New York Governor Andrew Cuomo signed New York State Senate Bill S01475 into law (the “Law”), which requires marketers to provide clear and conspicuous disclosures in connection with all automatic renewal and continuous service offers presented to New York consumers. This auto-renewal Law will go into effect ninety (90) days after it was signed.
What changes are forthcoming?
[Read More]On July 1, 2020, the California State Attorney General (“AG”) began enforcement action against businesses that it believes have violated the California Consumer Privacy Act (“CCPA”). In anticipation of the July 1 deadline, it was unclear how the AG would prioritize CCPA enforcement. It was thought that the AG would target the largest businesses for CCPA violations in order to set an example for those companies (large and small) that meet the CCPA thresholds. In reality, the AG has shown no discretion with respect to CCPA enforcement and has sent notices of alleged violation to a large swath of businesses that it believes have not complied with the CCPA.
What do these notices allege and how should you respond to them?
Businesses that receive notices of alleged noncompliance will be provided with a summary of their purported CCPA violation(s). Examples of alleged violations that we have seen include failure to provide: 1) a clear and conspicuous link titled “Do Not Sell My Personal Information” on company homepages; 2) users with the opportunity to request that businesses disclose what personal information they have collected, used, shared and/or sold; 3) users with the ability to request that businesses delete the personal information that they have collected about them; and 4) a privacy policy that details consumers’ privacy rights and how they may exercise them. In the CCPA enforcement notices, businesses have been advised of the potential legal consequences associated with failure to comply, which include civil penalties of up to $2,500 for each violation, and penalties of $7,500 for violations that are deemed “intentional.” The notices explain that businesses have thirty (30) days to cure and respond to the AG.
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Please note that fraudulent notices have been sent by scam artists for purposes of scaring businesses into paying money. As such, businesses should first confirm with the AG that the notices that they receive are valid before responding to them. Businesses should respond to valid notices via email to privacy@doj.ca.gov within thirty (30) days of notice receipt. The responses should describe all actions that have taken in order to come into full compliance with the CCPA. Failure to respond and cure the alleged violations may lead to imposition of the above civil penalties.
If your business has received a notice of alleged noncompliance, or if you require general assistance with implementing CCPA compliance measures, please email us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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On November 3, 2020, Election Day, New York Attorney General Letitia James issued a press release addressing suspicious robocalls received by New York residents in the run up to the election. According to Attorney General James, many New Yorkers received automated calls “spreading disinformation and encouraging people to stay home on election day.” If true, these calls would violate numerous laws meant to protect free and fair elections. While such calls clearly run afoul of applicable robocall law, it is important to remember that other automated calls do not need to be so nefarious to violate of state and federal telemarketing laws.
What is Robocalling?
[Read More]Californians took to the polls last week and decisively voted to approve Proposition 24, the California Privacy Rights Act, an amendment to the recently-enacted California Consumer Privacy Act (“CCPA”). The amendments to CCPA law are expected to strengthen protections to what is already the foremost data privacy law in the Country.
[Read More]Producing gaming applications has proven to be a successful business model that, when done correctly, can grow beyond the games themselves into movies, merchandise and more. However, when corners are cut, lawsuits and regulatory problems can keep a good idea from reaching its commercial potential. Prior to launch, developers should consult with a gaming attorney to understand the legal issues that are involved when entering the mobile app game space.
What should developers be aware of when creating mobile app games?
Cautionary Tale
In September of this year, game developer and publisher, Huuuge, Inc. (“Huuuge”), settled a class action lawsuit for $6.5 million. The Plaintiffs, players of Huuuge’s Huuuge Casino, Billionaire Casino and Stars Casino games, had alleged that Huuuge’s social casino games constituted unlawful gambling within the meaning of Washington State gambling laws. Huuuge mobile app game players were initially provided free virtual coins to wager on Vegas-style slots. Once they had exhausted their free virtual coins, users were provided with the opportunity to extend gameplay by purchasing additional virtual coins. Plaintiffs alleged that this practice also violated Washington’s Recover of Money Lost at Gambling Act (“RMLGA”), the Washington Consumer Protection Act (“WCPA”) and common law unjust enrichment.
Creating a Mobile App Game
When creating mobile app games, developers must be careful to: 1) follow the mobile app store platform provider policies of Apple and Android; 2) comply with applicable state and federal laws; and 3) adhere to certain regulatory guidelines promulgated by governmental agencies, such as the Federal Trade Commission (“FTC”). Given the time that the public spends on their mobile phones today, lawmakers are increasingly focused on consumer protection in the mobile platform economy. As such, to ensure that their mobile app games remain compliant, app developers should stay up to date on evolving state and federal laws, and rules and regulations.
If you require assistance in connection with developing mobile app games, please email us at info@kleinmoynihan.com, or call us at (646) 713-1684.
The material contained herein is provided for informational purposes only and is not legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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For several years, courts across the country have struggled to define the term “Automatic Telephone Dialing System” (“ATDS”) within the context of the Telephone Consumer Protection Act of 1991 (“TCPA”). The TCPA prohibits making calls or sending text messages “(other than a call made for emergency purposes or made with the prior express consent of the called party) using an [ATDS] or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service.” In the spring of 2020, the Seventh Circuit Court of Appeals, in Gadelhak v. AT&T Services, Inc., held that a device must either store or produce numbers using a random or sequential number generator to constitute an ATDS for TCPA liability purposes. In doing so, the Seventh Circuit contributed to the growing circuit split regarding the ATDS definition. Gadelhak has since appealed the decision to the United States Supreme Court. Now, AT&T has asked the Supreme Court to stay Gadelhak’s appeal pending its anticipated decision on the same issue in Duguid v. Facebook.
What is the substance of the appeal?
The ATDA Definition
With its decision in Gadelhak, the Seventh Circuit joined in the view of the Third and Eleventh Circuits in holding that because AT&T’s system “neither store[ed] nor produce[d] numbers using a random or sequential number generator,” it did not constitute an ATDS for TCPA purposes. By contrast, the Ninth, Second, and Sixth Circuits have held that to constitute an ATDS, a device need only be able to store a list of numbers to be dialed. In Duguid, the Supreme Court has been asked to determine “[w]hether the definition of an ATDS in the TCPA encompasses any device that can ‘store’ and ‘automatically dial’ telephone numbers, even if the device does not ‘us[e] a random or sequential number generator.’” AT&T, like many observers in this space, clearly hopes that the Supreme Court’s decision in Duguid will finally resolve the ATDS definition split that presently exists among the circuits.
TCPA Law Litigation Strategy
As AT&T argued in its motion, most smart phones would meet the ATDS definition espoused by the Second, Sixth, and Ninth Circuits. This is the case because any iPhone can store telephone numbers and send text messages automatically. Undoubtedly, this very expansive ATDS definition would have wide-ranging effects on TCPA litigation if the Supreme Court were to adopt this interpretation.
As we have blogged, many aspects of TCPA law are in a constant state of flux. With the Supreme Court’s pending decision in Duguid, many TCPA defendants are using the same strategy as AT&T and asking lower courts to stay TCPA actions until the Supreme Court provides a workable ATDS definition. No matter how the Supreme Court resolves the current circuit split, Duguid will mark a sea change for TCPA litigation.
In this regulatory climate, businesses should work with experienced counsel to ensure compliance with an ever-changing TCPA law. If you need assistance preparing for this landmark ruling, or if you have been sued for alleged violations of the TCPA, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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The relatively settled state of fantasy sports law was recently interrupted when the Internal Revenue Service (“IRS”) issued an opinion addressing whether it believes that daily fantasy sports is a game of chance or skill.
How will the IRS opinion affect fantasy sports law?
[more]
Readers know that fantasy sports contests that strictly comply with technical requirements governing gameplay are exempt from federal gambling prohibitions otherwise imposed by the Unlawful Internet Gaming Enforcement Act (“UIGEA”). In the matter at hand, the IRS undertook an in-depth analysis into whether daily fantasy sports are games of chance or skill as part of an evaluation concerning whether the entry fee paid by a participant in a daily fantasy sports contest constitutes a wagering transaction for tax reporting purposes.
The IRS analyzed the relative skill involved in daily fantasy contests, noting that, as a general rule, “a contest in which a prize is offered based on the mental or physical skill of the contestant” is not considered a game of chance. The IRS concluded that daily fantasy sports contests are similar to poker in that while both games involve some degree of skill, player skill does not ultimately dictate the outcome of either game. The IRS determined that in the case of daily fantasy sports, chance dominates because a participant’s skill in picking a roster has no impact on real-life athletes’ live performance, which are what ultimately determine the outcome of fantasy sports contests. The IRS concluded, therefore, that daily fantasy sports contest entry fees constitute wagers for tax purposes because “there is an uncertain event (such as the live performance of individual players), winnings if the event resolves in participant’s favor, and consideration is lost if the event does not resolve in participant’s favor.”
Impact of the IRS Opinion on Fantasy Sports Law
While protected under UIGEA’s narrowly tailored fantasy sports exemption, the legality of fantasy sports contests is ultimately determined on a state by state basis pursuant to their respective gambling laws. In recent years, states across the country have intervened in this space to either: (i) legalize and regulate fantasy sports contests if they conclude that the games are skill-based; or (ii) ban them as prohibited games of chance. While certainly not a leading authority on gaming-related issues, the IRS and its recent opinion may serve as useful precedent: (i) for states to revisit and reverse their prior determinations that daily fantasy sports are games of skill; or (ii) to underscore previous determinations that fantasy sports contests are games of chance. In order to ensure compliance in this still evolving regulatory climate, it is critical that fantasy sports operators work closely with knowledgeable counsel.
If you are interested in learning more about fantasy sports law or pursuing a fantasy sports venture, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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In April, we blogged about the Ninth Circuit’s ruling in the matter of VIP Products LLC v. Jack Daniel’s Properties, Inc. VIP Products LLC (“VIP”) designs chew toys that are made to humorously resemble well-known alcohol and soda brands. Naturally, VIP created a chew toy modeled after the Jack Daniel’s Properties, Inc. (“Jack Daniel’s”) iconic whiskey bottle. After receiving a cease and desist letter from Jack Daniel’s, VIP sought a declaratory judgment from a district court in Arizona that its chew toy did not infringe upon, or dilute, any of Jack Daniel’s trademark rights. The district court ruled in favor of Jack Daniel’s. On appeal, the Ninth Circuit ruled that VIP’s chew toy was an expressive work entitled to fair use protection under the First Amendment and, as such, overturned the lower court decision. On September 15, 2020, Jack Daniel’s petitioned the United States Supreme Court (“Supreme Court”) to review the case. The Supreme Court has until November 18, 2020, to determine whether they will grant certiorari.
What are the Legal Issues Before the Supreme Court?
Fair Use and the Supreme Court
Jack Daniel’s petitioned for certiorari because, as it points out in its petition, the various courts of appeal across the country are divided on how to analyze the issue of humorous fair use (satire) in trademark infringement cases. Specifically, Jack Daniel’s is seeking the answer to the following questions: 1) whether there are circumstances where the use of humor entitles brands to special protections against liability for trademark infringement; and 2) whether a claim of dilution by tarnishment under the Lanham Act is barred because the use of humor in connection with a commercial product would make it “noncommercial.”
Importance of Retaining a Trademark Attorney
As is evident by the case at hand, trademark law can be very subjective. Hiring a trademark attorney early in the brand development process can help: 1) prevent any delays in registering marks with the United States Patent and Trademark Office (“USPTO”); 2) avoid receiving cease and desist letters from competing brands; and 3) educate businesses on any viable fair use defenses.
As of October 19, 2020, six (6) amicus briefs have been filed on behalf of Jack Daniel’s and none on behalf of VIP. It will be interesting to see whether the Supreme Court decides to address the trademark questions at issue in the Jack Daniel’s dog chew case. We will continue to monitor this case and update our readers if and when certiorari is granted.
If you are involved in a trademark dispute or need legal counsel in connection with your brand strategy, please email us at info@kleinmoynihan.com, or call us at (646) 768-0993.
The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an expert attorney.
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