Ad Law News And Views - November 12, 2022

ANALYSIS OF THE 2022 MIDTERM ELECTIONS

The results of Tuesday's election seem poised to result in a change in leadership in at least one chamber of Congress. To help you evaluate these changes and understand their potential implications on your business practices, Kelley Drye's Government Relations & Public Policy Practice has prepared the attached "Analysis of the 2022 Midterm Elections."

While there is still a great deal of uncertainty with respect to the final results, we wanted to provide an analysis of where things stand at this moment. We will continue to update our slide deck in the days and weeks ahead.

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AG Settlements Call for Stronger Data Security

Early this week, a coalition of 40 attorneys general obtained two multistate settlements with Experian concerning data breaches it experienced in 2012 and 2015 that compromised the personal information of millions of consumers nationwide. The 2012 breach investigation was co-led by the Massachusetts and Illinois AG offices, and the 2015 investigation was co-led by the AGs of Connecticut, DC, Illinois, and Maryland. An additional settlement was reached with T-Mobile in connection with the 2015 Experian breach, which impacted more than 15 million individuals who submitted credit applications with T-Mobile.

The FTC and CFPB are Coming for "Junk Fees," but What Does that Really Mean?

The FTC's Advanced Notice of Proposed Rulemaking (ANPR) seeking comment on a potential rule prohibiting "junk fees" and related practices hit the Federal Register yesterday. The rule has the potential to fundamentally alter how fees are disclosed in advertising and across the customer experience in nearly every industry that charges some type of fee. Interested parties now have until January 9 to provide comments and feedback on the proposal. The ANPR's publication follows a series of meetings and announcements by the FTC, CFPB, and President Biden that the administration was taking actions to prohibit so-called "junk fees" that "can weaken market competition, raise costs for consumers and businesses, and hit the most vulnerable Americans the hardest."

The FTC's case against Vonage – Customer Service Nightmare as "Dark Patterns"

In a case that will likely resonate with many readers, the FTC's recent settlement with Vonage describes in excruciating detail the obstacles and costs that Vonage allegedly imposed on consumers when they tried to cancel their phone service. In many ways, it's a typical FTC case involving deception, unauthorized charges, and misuse of a "negative option" that makes it simple to sign up and almost impossible to cancel. However, the FTC's characterization of the practices as "dark patterns," coupled with some other features, make this case stand out. Indeed, any company with a "customer retention strategy" (which is apparently what this was) would be wise to pay attention.

CPRA Rule Revisions Unlikely to be Finalized in 2022

Just two months before the effective date (January 1, 2023) of the California Privacy Rights Act ("CPRA"), the California Privacy Protection Agency ("CPPA") Board met on October 28 and 29 to discuss revisions to the agency's initial draft CPRA regulations. Board members discussed a range of proposed changes that could significantly impact businesses but also reserved discussion on important topics, such as employee and business-to-business data, for future proceedings.

NAD Decision on Debt Claims Holds Lessons Across all Industries

This week, NAD announced a decision involving various claims made by Accredited Debt Relief and its marketing agency. Although parts of the decision will likely only be of interest to companies who operate in the debt settlement space, the decision also holds some important lessons for companies that operate outside of that space. We'll focus on those in this post.