FTC Defense Lawyer Digital Marketing

The following are examples of select regulatory investigations and enforcement matters the firm has handled to successful resolution:

• Represented developers of so-called mobile device and computer “stalking” apps in conjunction with a precedent-setting privacy and data security case brought by the Federal Trade Commission relating to such technologies. This first-ever investigation involved a number of cutting-edge, unsettled legal issues and was initiated by the FTC after a hacker was able to access the cloud storage account of the app developers. The FTC examined whether the Children’s Online Privacy Protection Act and/or Section 5 of the FTC Act had been violated. Drawing upon sophisticated knowledge of applicable advertising regulations, data privacy laws and FTC enforcement policy, the firm was able to successfully develop and implement a multi-faceted CID investigation defense strategy while productively liaising with a data security vulnerability penetration expert. As a result of these efforts, coupled with persuasive defense advocacy, this complex, highly-publicized investigation resulted in a non-monetary administrative settlement that avoided the initiation of enforcement proceedings.
• Represented an online lead generator in conjunction with a Civil Investigative Demand (CID) issued by the Federal Trade Commission examining deceptive acts and practices in connection with listings, descriptions, reviews, ratings, comparisons or endorsements of, or referrals to, providers of health-related services in violation of Section 5 of the FTC Act. The firm successfully secured the prompt closure of the investigation with no monetary penalty.
• Represented an affiliate network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with creation, sale and dissemination of online adult dating-related advertisements in violation of Section 5 of the FTC Act. The firm significantly narrowed the scope of the investigation without the FTC ultimately seeking any remedy.
• Represented individuals and corporate defendants in a Federal Trade Commission lawsuit filed on the agency’s behalf by the Department of Justice alleging that the company and its telemarketer made illegal robocalls to consumers, including tens of millions of calls to numbers listed on the agency’s Do Not Call Registry. The firm successfully negotiated favorable settlement terms that included the exclusion of numerous physical assets and monetary relief that amounted to a fraction of damages sought by the FTC in civil penalties without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
• Represented affiliate marketer in a Federal Trade Commission matter initiated by the Division of Marketing Practices alleging the existence of an online business coaching scheme that purportedly deceived consumers about money-making program potential. The FTC was prosecuting, in part, what it alleged to be unfounded income claims and violations of the FTC Act. The firm successfully negotiated favorable settlement terms, including no monetary payment, and reduced compliance monitoring and reporting requirements.
• Represented a lead aggregator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether brokers, servicers and other marketers of  products and services had engaged in acts or practices in violation of other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
• Represented an online lead generator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether consumer brokers, servicers and the other marketers of products and services had engaged in acts or practices in violation of the MARS Rule, 12 U.S.C. § 5538, and other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
• Represented a leading software development academy in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing or sale of secondary or post-secondary education products or services, or educational accreditation products or services in violation of Section 5 of the FTC Act. The firm successful secured the prompt closure of the investigation.
• Represented leading industrial tool manufacturer in conjunction with an investigation initiated by the Federal Trade Commission examining the marking, advertising, labeling and other promotional activities relating to the use of unqualified domestic origin claims for products. The purpose of the investigation was to determine whether the company was engaged in unfair or deceptive acts or practices in violation of Section 5 of the FTC Act and the FTC’s enforcement policy with respect to the use of “Made in USA” claims in advertising and labeling. The firm worked with the client to implement a remedial action plan to update and qualify its representations and ensure that the company did not overstate the extent to which its products are made in the United States. As a result, the firm successfully secured the prompt closure of the investigation.
• Represented owner of company in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining alleged false and unsubstantiated representations about the health-related benefits of dietary supplements in violation of Sections 5 and 12 of the FTC Act. The firm worked closely with the client and a scientific expert to critically assess the physiological properties of product ingredients, as well as the nature and degree of data in the client’s possession prior to dissemination of claims, in order to construct persuasive legal arguments regarding a reasonable basis for advertising claims. As a result of these efforts, in addition to the persuasive utilization of cutting-edge legal precedent limiting the FTC’s judicial enforcement authority, the firm successfully resolved the matter without the initiation of litigation enforcement proceedings.
• Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $9M in consumer harm as a result of a purported products and services scam through Internet websites, telemarketing, and unsolicited emails and text messages. The FTC was prosecuting what it alleged to be deceptive acts or practices in violation of Section 5 of the FTC Act, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Consumer Review Fairness Act (15 U.S.C. § 45b) and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
• Represented data broker defendants in a Federal Trade Commission lawsuit alleging in excess of $4M in consumer harm as a result of the purported collection of sensitive consumer data submitted by consumers to lead generation websites and the distribution thereof to unanticipated third-parties that, in turn: (i) utilized the information to withdraw millions of dollars from consumers’ accounts without their authorization; and (ii) conducted unauthorized marketing activities by email, text message and telephone calls. The firm successfully negotiated favorable settlement terms without any admission of culpability, premised upon the truthfulness of defendants’ financial information.
• Represented an affiliate marketer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of monitoring services. In doing so, the FTC alleged that defendant lured consumers with fake rental property ads and deceptive promises of “free” reports. The firm successfully negotiated extremely favorable settlement terms, including reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC and that an affiliate marketer co-defendant was ordered to pay, premised upon the truthfulness of submitted financial information.
• Represented online lead generators in a Federal Trade Commission lawsuit wherein the Commission sought millions of dollars in damages as a result of what the FTC described as fake blogs, fake news websites, fake testimonials, the failure to disclose material connections and bogus free trial offers in conjunction with selling Acai berry weight loss products. The firm successfully negotiated extremely favorable settlement terms without any finding of liability. Defendants paid only a small proportion of the damages that their network co-defendants were ordered to pay and an even smaller fraction of the damages sought by the FTC, premised upon the truthfulness of their financial information.
• Represented defendants in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act in connection with the marketing and sale of document preparation services. The FTC alleged that defendants falsely claimed to be affiliated with the Department of Education and charged consumers illegal fees. The firm successfully negotiated extremely favorable settlement terms, including retention of funds, and reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of submitted financial information.
• Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $3M in consumer harm as a result of a purported products and services scam. The FTC was prosecuting what it alleged to be deceptive and abusive collection practices in violation of Section 5 of the FTC Act and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
• Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations about certification programs, as well as the failure to clearly and conspicuously disclose material connections within purported independent websites. The firm successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of respondents’ financial information.  The firm also successfully negotiated the exclusion of additional specific instances of alleged unlawful advertising conduct.
• Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations in conjunction with an alleged Internet business coaching scheme that purported resulted in more than $125M in consumer harm. The firm assisted the individual client regarding invocation of the 5th Amendment privilege and successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of the individual client’s financial information.
• Represented affiliate marketers in conjunction with investigations by the Florida Attorney General into the promotion of weight loss and automobile insurance products/services. The firm successfully negotiated extremely favorable settlements where respondents paid only a nominal proportion of the damages alleged by the FL OAG. Both matters were resolved promptly and quietly, without any resulting litigation or admission of culpability.
• Represented a pay-per-call network in conjunction with a subpoena issued by the Illinois Attorney General. Specifically, the investigation focused upon potential violations of the Illinois Consumer Fraud and Deceptive Business Practices Act by various third-party publishers pertaining to the advertising, soliciting and generation of leads. The firm successfully secured the prompt closure of the investigation.
• Represented online marketers in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act, in connection with the marketing and sale of academic degree and certification programs. In doing so, the FTC alleged that defendants misled consumers about their association with recognized high school equivalency programs through the use of deceptive metatags and website names designed to look like legitimate online high schools. The firm successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of their financial information.
• Represented a corporate officer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of personal care product trial offers. The firm successfully petitioned the court to modify a broad-sweeping asset freeze and allow distributions for personal living expenses and to fully-satisfy outstanding obligations. The firm also successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of financial disclosures.
• Represented a digital marketing network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with the creation, sale, and dissemination of online dating advertisements in violation of the FTC Act, 15 U.S.C. § 45.  The firm dramatically narrowed the scope of the investigation which was promptly closed with no monetary remedy or enforcement.
• Represented a telemarketer in a Utah Division of Consumer Protection investigation regarding alleged violations of the Utah Consumer Sales Practices Act and the Telephone Fraud Prevention Act. The Utah DCP was focused upon whether consumers were contacted to make telephone solicitations while the telemarketers were not registered as a telephone soliciting business, whether the telemarketers informed consumers of the right to cancel and whether the telemarketers failed to furnish services after receipt of payment. The matter was resolved amicably and the investigation promptly closed after payment of an extremely nominal sum by respondent.
• Represented an email marketing company in an investigation by the New York Attorney General relating to alleged violations of the CAN-SPAM Act. The New York OAG was focused upon the company’s email marketing practices, related compliance considerations and third-party lead generation relationships.
• Represented an individual in conjunction with a subpoena issued by the Federal Trade Commission pertaining to a pending lawsuit alleging deceptive chain referral schemes involving cryptocurrencies. The FTC sought verbal testimony and documentation from the client. The firm successfully defended the subpoena without the client having to provide either. The matter was closed with no further inquiry or action.
• Represented an affiliate marketing network in conjunction with a subpoena issued by the United States Attorney’s Office regarding fraudulent “tech support” advertising campaigns. Specifically, the investigation focused upon alleged misrepresentations of affiliation with Microsoft, spoofed caller IDs, and the detection of viruses or other malware. The matter was concluded successfully with no further inquiry or action.

• Represented merchant in conjunction with a subpoena issued by the Wyoming Attorney General examining misrepresenting the standard, grade, style, model, use, availability, value, price and discount of its merchandise; misrepresenting its approval, affiliation or sponsorship; and advertising under the guise of obtaining sales personnel when in fact the purpose of the advertisement is to sell merchandise to sales personnel applicants. The firm successfully negotiated extremely favorable settlement terms whereby respondent paid only a fraction of the statutory damages alleged and sought by the WY OAG. The firm also successfully negotiated terms that successfully minimized any negative publicity.  The matter was resolved promptly and quietly, without any resulting litigation or admission of culpability.

• Successfully defended full-service pharmacy located in New York City against highly-publicized consumer, New York State Office of the Attorney General and NYC Department of Consumer Affairs (n/k/a NYC Department of Consumer and Worker Protection) charges alleging the advertising or offering for sale certain necessary consumer protection goods during the outbreak of the novel coronavirus (COVID-19) at unconscionably excessive prices.  The New York AG alleged violation of section 396-r of the New York General Business Law and the Rules of the City of New York (6 RCNY §5-38).  The NYC DCA alleged violation of 6 RCNY §§ 5-38 and 5-42, also mandating compliance with NYC Administrative Code § 20-700, et seq. proscribing unfair, deceptive or unconscionable trade practices.  The firm successfully resolved the NY OAG matter with no monetary settlement while avoiding the initiation of enforcement proceedings.  The firm also successfully resolved the NYC DCA investigation by negotiating extremely favorable settlement terms where respondent paid only a small fraction of the damages alleged by the DCA.  All matters were resolved quietly and amicably without any resulting litigation, finding of liability or any admission of culpability.