In July 2010, the United States Department of Justice (DOJ) released an Advanced Notice of Proposed Rulemaking (ANPRM) that would explicitly include websites as “places of public accommodation” under the ADA, and sought public comment regarding proposed rules intended to ensure that websites will be fully accessible to individuals with a wide variety of disabilities. Since that time, owners and operators of e-commerce websites have been anxiously awaiting the promulgation of new rules governing website accessibility, only to see the DOJ repeatedly delay issuance. In September 2015, we published an alert warning retailers of the impending promulgation of the new rules, only to see the DOJ delay issuance until April 2016.
What’s the News?
Walgreens recently settled with the state of New York over allegations that the drug retail chain misled consumers with its pricing, including value and clearance prices. According to the New York attorney general’s office, an undercover investigation showed that Walgreens was overcharging customers compared to the prices displayed in print advertising and on-shelf tags. Walgreens agreed to pay $500,000 to settle the dispute and has agreed to review and correct the allegedly misleading pricing practices. This should serve as a reminder to retailers in all industries of the need to exercise care in product pricing, as this area has become a common target for regulators and the plaintiff’s bar.
On Monday, the US Supreme Court sent a potential class action case back to the Ninth Circuit for reconsideration, marking an intermediary win for Spokeo Inc., which uses a “people search engine” to find, compile, and sell publicly available personal information. The company came under fire for publishing inaccurate personal information about plaintiff Thomas Robins in a case that was expected to have major implications on US privacy and consumer protection law.
The California Office of the Attorney General (OAG) recently released a report detailing a comprehensive analysis of the data breaches reported to the OAG between 2012 and 2015. Fifty million records of Californians were reportedly breached during those four years. The report acknowledges that security is a challenging endeavor for organizations, but points out that many of the breaches reported could have been prevented by taking reasonable security measures.
The report provides the following key recommendations for businesses:
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The Federal Trade Commission recently issued warning letters to companies whose mobile applications contain cutting-edge software that can monitor consumers’ television viewing habits. The software, developed by the company Silverpush, utilizes the microphone on the user’s device to detect signals running in the background of television programming and collect information about the user’s programming interests. In its warning letters, the FTC has put app developers on notice that any false or misleading representations pertaining to their use of Silverpush technology could result in an FTC enforcement action.
What’s the News?
The Federal Trade Commission’s final order against a video game marketing company for not disclosing that online reviews for games were posted by paid reviewers shows that companies (i) should monitor their paid reviewers and influencers for proper disclosures and (ii) have a compliance system in place to deal with those who do not follow a company’s guidelines.
What’s the News?
A recent lawsuit filed against GNC serves as a reminder that companies need to ensure that prices listed as “regular prices” are substantiated.
Background on the Case
The complaint in a class action recently filed against the nutrition and supplements retailer alleges that GNC deceptively lists items on its website as having a deceptive “regular price” and a substantially lower “sales price.” The regular price is either marked down or grayed out in a manner that makes customers believe the sales price is a substantial discount over the price that the items were formerly sold for (see below for an example of the markdowns contained in the complaint).
The complaint claims that these markdowns are deceptive because the listed regular price is not:
As publishers turn from print to digital and rely on online ad sales, some websites now prevent readers from viewing content if they have an ad blocker enabled. Alexander Hanff, a privacy activist and CEO of Think Privacy, has launched a campaign to “name and shame” publishers using these methods. The campaign announcement comes days after the European Commission stated in a letter addressed to the activist that ad blockers can be illegal and in breach of EU privacy rules.
The mechanism to detect ad blockers appears to require access to personal data. The campaign encourages internet users to report websites circumventing ad blockers to prevent publishers from infringing on personal privacy. Hanff says he will bring legal challenges against sites using anti-ad blockers without prompting for user permission.
Partners Sarah Bruno and Anthony Lupo will speak on a panel at the 2016 Legal & Regulatory Conference hosted by the Personal Care Products Council. The presentation is titled “Know Every Angle: Advertising, Social Media, Discount or Phantom Pricing, and International Distribution and Privacy.” This interactive panel will examine international distribution challenges and outlet, discount, and phantom pricing while also examining native advertising, social media and the ever-changing privacy landscape. The exchange will focus on recent legal developments and cover industry approaches. The conference is May 4-6, 2016 at the Loews Vanderbilt Hotel in Nashville, Tennessee.
In a key win for digital privacy advocates, the House unanimously passed the Email Privacy Act yesterday in a 419-0 vote. Supporters, including top Silicon Valley names and privacy groups, now look to the Senate and then President Obama to bring the popular Act to fruition.
The bipartisan bill from Reps. Kevin Yoder (R-KS) and Jared Polis (D-CO) would require law enforcement to obtain a warrant to search through emails and other messages that are more than 180 days old. The current legislation governing digital communications, the Electronic Communications Privacy Act, allows police to search through digital archives with just a subpoena or court order. Why 180 days? The technical ability to store information online was much more limited when the current legislation was originally passed. When were these rules drafted? 1986.
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