FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers.” The NLRB Press Release was a bit less definitive, describing it as “a partnership between the agencies that will promote fair competition and advance workers’ rights.” And this week, the Department of Justice (DOJ) Antitrust Division announced its own MOU with the NLRB.

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What Even Is Ad Tech?

Ad tech. Global communication network concept

“What is ad tech?” That is a question I’ve been asked and have answered numerous times. I recently joined BakerHostetler’s Chicago office in the Digital Assets and Data Management Practice Group after spending almost eight years at Publicis Groupe, where I led a team of attorneys supporting business units focused on media, data and advertising technology (“ad tech”). As part of this transition, I’ve had the opportunity to meet many new lawyers at the firm and their existing and potential new clients, and that has required honing my proverbial “elevator pitch.” That elevator speech always includes a discussion of ad tech, starting with an explanation of what it is.

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A Flurry of Right to Repair Activity from the FTC – What You Need to Know

“Right to repair” is a consumer protection issue that is rapidly picking up steam. In addition to federal legislation that was introduced in 2022, there has been quite a lot of recent state legislative activity. And we have seen a lot more Federal Trade Commission (FTC) activity on the issue lately.

So what exactly is the right to repair? A 2021 FTC report to Congress, cleverly called “Nixing the Fix,” described the right to repair as addressing how manufacturers may limit repairs by consumers and repair shops, and how those limitations may increase costs and limit consumer choices. The report discussed the issue through a broad regulatory lens and discussed several potential FTC repair tools in this area, including the Magnuson-Moss Warranty Act. The Mag-Moss Warranty Act – not to be confused with Mag-Moss rulemaking – broadly addresses issues involving warranties for consumer products. The “anti-tying” section of the act generally prohibits warranty provisions that provide that a consumer will lose warranty coverage if they don’t use company parts for repair unless the company also provides those parts free of charge. There is a lot more to the act, but for today, that’s all we need to know. In short, the anti-tying provisions do not look kindly on warranty provisions that restrict repair options for consumers.

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Taking Another Look at Courts Interpreting Section 19 of the FTC Act

After the Supreme Court held that the Federal Trade Commission (FTC) could no longer use Section 13(b) of the FTC Act to seek equitable monetary relief in federal court, the agency quickly ransacked the sofa, seeking spare change and any other statutory tools it could find to compensate. Section 19 of the FTC Act contained language that came closest to mirroring aspects of what made 13(b) an effective tool for decades, but with some caveats.

Section 19 has two key uses. First, after a full FTC administrative litigation that ends with a cease and desist order, the FTC can use Section 19 to go to federal court and seek monetary relief for fraudulent and dishonest conduct. Second, for many rule violations, the FTC can go straight to federal court and use Section 19 to seek redress and/or civil penalties (though the DOJ has a role to play if the relief sought includes penalties). Section 19 provides that in both types of actions, the court may “grant such relief as the court finds necessary to redress injury to consumers … resulting from the rule violation or the unfair or deceptive act or practice, as the case may be. Such relief may include, but shall not be limited to, rescission or reformation of contracts, the refund of money or return of property, the payment of damages, and public notification respecting the rule violation or the unfair or deceptive act or practice, as the case may be; except that nothing in this subsection is intended to authorize the imposition of any exemplary or punitive damages.” Notably, disgorgement is not an enumerated remedy, but there is a lot in Section 19 that can allow the FTC to get some real recovery in certain cases.

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Dot Com Guideline Revisions Will Focus on Hyperlinks, Dark Patterns, the Metaverse and More

It has been two weeks or so since the FTC announced that it is going to take a close look at whether and how to revise the Dot com Disclosure Guides. For those who are new to this, the dot com guides (technically and annoyingly titled the “.com” guides) are a helpful source document to look at when you are trying to figure out how and when to make disclosures, particularly in digital advertising. Unlike the recent request for comments on the Endorsement Guides, which provided specific changes the agency was proposing, the Dot com request is more generalized, asking a series of questions about broad areas for consideration. 

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The 13th Public Commission Meeting – an AI Study About Online Scams and, Yes, Another Policy Statement

We spend many of our working hours – and far too many of our nonworking hours – talking about Federal Trade Commission (FTC or Commission) issues, and we can confidently state that no one has ever said to us, “I sure do wish the agency would issue yet another policy statement.” With that, we turn to the latest public Commission meeting – where, yes, another policy statement emerged.

But first, let’s talk about the latest FTC report, this one on the use of artificial intelligence (AI) to combat certain online harms, including scams, fake reviews, disinformation and hate crimes. Sometimes the FTC will do reports on its own initiative (such as the recently announced pharmacy benefit managers (PBMs) study), but other times, Congress will, through legislation, require the Commission to prepare a report on a specific topic, and that is often done as part of the agency appropriation process. Today’s report was one of those congressionally mandated studies.  

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Pride Month and the Onslaught of Rainbow Corporate Logos

Pride flag

Many of us have become accustomed to the fact that every June, with the calendar signaling LGBTQ+ pride month, we get the inevitable onslaught of corporate logos incorporating the colors of the rainbow flag. And at the end of June, the logos revert to their less colorful versions. The cynics among us like to focus on the July 1 reversion to the old corporate logos, but many of us are mindful of the fact that these yassified logos – even just for a month – are an enormous change from where we were not too long ago, when so few corporations were publicly recognizing this important month.

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If an Agency Calls Something Unfair, Does That Magically Make It Unlawful? A Recent Blog Post by the FTC’s Chief Technology Officer

Last week, the Federal Trade Commission’s (FTC) tech blog quietly published a post that could have broad implications – for privacy practitioners and beyond. In this post, the agency takes the novel position that if consumer data is compromised in a security incident and the company does not provide consumer notice, that could in and of itself be considered a violation of the FTC Act. The post states that “[i]n some instances, the FTC Act created a de facto breach disclosure requirement because the failure to disclose will, for example, increase the likelihood that affected parties will suffer harm.” This was news to many, and I wondered if I was being gaslighted just a bit. And keep in mind, unlike agency policy statements, a blog post like this is not voted on or even reviewed by the commissioners (except, perhaps, the chair’s office).

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Testimonial Guides Update – The Things That Make Us Go Hmm

As we reported yesterday, the FTC has issued its proposal for an update to the Testimonial & Endorsement Guides. These are not THE LAW, because (1) guides are not law and (2) even if we treat them as such, this is a proposal. That said, the changes are an important indication of what the agency is currently thinking, and it is certainly possible for the agency to take an aggressive enforcement posture and indicate that the draft changes put industry on notice. So it is important to look closely at the changes and evaluate whether your Company might want to make any modifications to its current practices.

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May 2022 Public Commission Meeting – Meet Commissioner Bedoya, Plus Blasts from the Past, Endorsements and an FTC Legend

In February 2020, the Federal Trade Commission (FTC) announced that it was going to reexamine the Endorsements and Testimonial Guides (Guides) and sought comment on whether and how the Guides should be changed, including addressing issues involving reviews, affiliate links, children’s perceptions and changes in technology. Two very long years later, the FTC has proposed some real changes to the Guides, which will be subject to another round of comment. Also on the agenda was a policy statement proclaiming that ed tech is a priority area for agency Children’s Online Privacy Protection Act (COPPA) enforcement. This basically was the equivalent of scheduling a meeting to discuss future meetings – and of course, the first meeting with a full commission for Commissioner Alvaro Bedoya.

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