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Defending TCPA Litigation

by David Klein

Telemarketing and text message marketing can serve as an effective and economical means to engage with prospective and current customers.  However, lawsuits alleging violation of the main federal statute governing these forms of marketing, the Telephone Consumer Protection Act (“TCPA”), have exploded in recent years. The financial exposure associated with TCPA litigation can be substantial.  Against this backdrop, the most sound advice that any experienced telemarketing attorney can provide to a business that plans to market through use of these media is to stress the importance of developing practices and procedures designed to: (i) minimize the risk that such a lawsuit gets filed in the first place; and (ii) maintain proper records that will ensure an effective defense in the event that a suit does get filed.  

What are some key TCPA litigation defenses?

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Planning on Running a Facebook Sweepstakes? Here’s What you Need to Know

by David Klein

Sweepstakes promotions are great promotional tools which serve to engage consumers and attract new ones. When advertising sweepstakes on social media, businesses must be careful to abide by each respective social media platform’s distinct promotional contest rules, policies and guidelines. By way of example, in this blog we highlight the rules that sweepstakes operators must follow when creating and advertising Facebook sweepstakes promotions. 

What are Facebook’s sweepstakes policies?

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NCAA To Update Athlete Marketing Rules

by David Klein

On April 28, 2020, the Board of Governors (the “Board”) of the National Collegiate Athletics Association (“NCAA”) implemented new rule changes that would allow student athletes to be compensated for third-party endorsements. To that end, the NCAA instructed each of the three (3) NCAA Divisions to consider appropriate changes to their existing athlete marketing rules so that the new regime may be adopted no later than January 2021, to take effect at the beginning of the 2021-2022 academic year.

 What rule changes are anticipated?

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Your Giveaway May Violate Sweepstakes Law

by David Klein

Brands often use giveaways as a marketing tool to create buzz among the consuming public. When done correctly, businesses can see an increase in revenue and consumer loyalty through use of giveaways. However, when a giveaway campaign is poorly structured, brands can suffer irreversible reputational harm. A recent example of a giveaway gone wrong concerns one offered by Reese Witherspoon’s fashion line, Draper James, LLC (“Draper James”). The subject Draper James Instagram giveaway post read: “Dear Teachers: We want to say thank you. During quarantine, we see you working harder than ever to educate our children. To show our gratitude, Draper James would like to give teachers a free dress.” The post did go on to explain that a registration form needed to be completed and that the offer was only “valid while supplies last.” Despite the additional language, the Draper James disclosure proved to be insufficient. After publishing the promotional post, many of the thousands of teachers who signed up believed that they would each receive  a free dress, when, in reality, teachers were entered into a sweepstakes for a chance to win one of only a limited 250 dresses available to entrants. After nearly one million entries were received, Draper James’ sweepstakes site crashed. Teachers who did not receive a dress went to social media to express their outrage about the deceptive giveaway. In an attempt to quell the firestorm, Draper James: 1) publicized that it would make an unspecified donation earmarked to help educators support their remote classrooms; and 2) gave every registrant a Draper James discount code. How this response plays out both in the court of public opinion and with regulators, remains to be seen. The Draper James campaign example is a reminder to brands that they need to use clear language to explain when a promotion is, in fact, really a sweepstakes and not a giveaway with prizes provided to all who sign up. In order to avoid situations similar to this, it is wise to speak with a promotions law attorney who is familiar with the nuances of sweepstakes law and other games of skill and chance. 

What should brands know when offering giveaways?

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TCPA Suit Stayed Pending Decision by United States Supreme Court

by David Klein

A district court for Maryland recently issued a stay in a class action lawsuit involving alleged violations of the Telephone Consumer Protection Act (“TCPA”) in anticipation of a decision from the United States Supreme Court in Barr v. American Association of Political Consultants, Inc.. The pending ruling in that case, which concerns a challenge to the constitutionality of the statute’s government-debt exception to the robocalling prohibitions, continues to have ripple effects on TCPA suits nationwide. 

How does the anticipated Supreme Court ruling affect this TCPA suit?

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The Importance of Well-Drafted Website Terms and Conditions

by David Klein

The United States District Court for the Southern District of New York recently issued a ruling that exemplifies the importance of well-drafted website Terms and Conditions. In Stephanie Sinclair v. Ziff Davis, LLC and Mashable, Inc., 1:18-cv-00790 (SDNY, April 13, 2020), the Court ruled that because Stephanie Sinclair (“Sinclair”) had agreed to Instagram’s Terms of Use, Mashable, Inc. (“Mashable”) was allowed to embed Sinclair’s photograph on its website as a sublicensee, without separately obtaining Sinclair’s permission. This case illustrates that, when drafted correctly, website Terms and Conditions can save website owners from lengthy and expensive litigation. 

How can website Terms and Conditions help protect your website?

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CCPA Record Keeping Requirements

by David Klein

Despite the ongoing Covid-19 pandemic, the California Consumer Privacy Act (“CCPA”) enforcement date remains set at July 1, 2020. Readers of this blog know that we have been providing frequent updates on all things CCPA. In this post, we take a deep dive into the record keeping requirements contained in the CCPA.

What are the CCPA record keeping requirements?

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Important Illinois Fantasy Sports Law Decision

by David Klein

On April 16, 2020, the Supreme Court of the State of Illinois (the “Supreme Court”) rejected a claim that online fantasy sports constitute illegal gambling under the State’s criminal code. In Dew-Becker v. Wu, the plaintiff initiated suit seeking to recover the $100 he had lost to defendant in a fantasy basketball league on FanDuel. Plaintiff based his lawsuit on a section of the State’s criminal code that allows individuals who lose money through illegal gambling to seek recovery from the winner. The trial court, the intermediary appellate court, and ultimately the State’s highest court, all rejected the plaintiff’s attempt to shoehorn this criminal statute into a case involving fantasy sports law. 

What did Plaintiff allege?

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