TCCWNA Update: NJ Supreme Court Deals Major Setback to Plaintiffs

This week saw a watershed opinion from the New Jersey Supreme Court that should stem the tide of purported class actions brought under New Jersey’s Truth-in-Consumer Contract Warranty and Notice Act (or “TCCWNA”). We have written previously about TCCWNA litigation here and here. Since our last update, a number of courts have issued opinions favorable to defendants, but this most recent decision in Spade v. Select Comfort Corp., Op. No. A-57-16 (078611) (N.J. Apr. 16, 2018) is a significant victory for a nation of potential defendants and should bring a sigh of relief to those doing business in New Jersey. Continue Reading

Good News for Marketers: Federal Court Rolls-Back FCC’s 2015 TCPA Regulations

A D.C. Circuit Court has ruled that the Federal Communications Commission (FCC) under President Barack Obama overreached in part when it issued its 2015 order providing guidance and interpreting the Telephone Consumer Protection Act (TCPA) in an attempt to rein-in robocalls and unwanted text messages. This long-awaited ruling in—ACA International, et al., v. Federal Communications Commission—provides some relief to marketers, while still retaining a consumer’s broad right to opt-out.

The court looked at four challenges to the FCC’s rules: (1) how broadly to interpret an “automated telephone dialing system”; (2) whether it is a TCPA violation to call a number that previously gave consent if the wireless number has been reassigned (without the caller’s knowledge); (3) how a consenting party may revoke consent; and (4) whether the FCC’s exemption for consent for certain health care related calls is too narrow. The court ruled in favor of the challengers for (1) and (2), and upheld the FCC’s order for (3) and (4).

1. Definition of Autodialer was Too Broad

When the regulation was established in 2015, the FCC deemed an autodialer to be “any device that has the present or future capacity to function as an autodialer.” The court ruled that the definition of autodialer was too broad. In fact, the definition was so all encompassing that it included smartphones and had the potential to entangle everyday consumers in litigation. At a rate of $500 per instance, consumers could have been on the hook for thousands of dollars for sending something like an evite via SMS or MMS to a group of friends. The court held that this is an unreasonably expansive interpretation of the TCPA.

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Charity Compliance is No Stranger to the Bracket Business

Are you or your company inviting charitable donations to fill out a tournament bracket for a shot at the prize? Putting aside the typical lottery and game of chance issues, involving a charity or charitable donations in your March Madness celebrations could weave other legal compliance webs – namely, triggering compliance with state charitable promotion laws. In this bylined article for Corporate Counsel, InfoLawGroup Partner, Heather Nolan, explains the laws and regulations that companies need to follow when raising money for charity.


GDPR: Kids and Other Quirks

For the musically inclined, think of the new EU General Data Protection Regulation (GDPR) as “theme and variations.”  The principles and terminology are standard across Europe, but there are many instances where the application will vary to some extent from country to country.  An example of non-standardization is the varying national age limit, from 13 to 16, beyond which parental consent is required to collect information about children.  Another is the entire field of HR privacy (!), as each EU country is largely free to specify how the general principles of the GDPR will be applied in the employment context.

Such diversity has historically been a challenge for multinationals and online businesses operating in European markets.  The GDPR should indeed produce more “harmonization,” compared to the 1995 EU Data Protection Directive, but there will still be variations after GDPR enforcement begins in May.  This article highlights areas where national differences matter, as well as some strategies for dealing with those variations. Continue Reading

InfoLawGroup Partner Jamie Rubin Provides Advice to Companies that Offer Auto-Renewal Subscriptions

With stepped up enforcement from the FTC and the California auto-renewal law updates going into effect in July, InfoLawGroup Partner Jamie Rubin offers companies insights on running auto-renewal subscription programs. Read his article in Internet Retailer magazine.



Cocktails and Conversation: Fran Maier Provides Insight on Lessons Learned – From Start Up to C-Suite to the Boardroom

InfoLawGroup is holding a series of popup panel discussions called “cocktails and conversations.” Our latest discussion was about what it takes for women to ascend to the upper echelons of business and featured successful entrepreneur and CEO, Fran Maier.

Fran is now the CEO of one of the fastest growing gig-economy startups, Babierge, which is changing the way parents travel with children all across the country. Babierge has had lightening fast growth over the past year and a half, but its rapid success is not surprising considering Fran brings the experience of being co-founder of, former CEO of TRUSTe (now TrustArc) and former board member of GE Capital Bank. She has served as Chair of the Stanford for Women on Boards initiative and has been and advisor and angel investor for several start-ups.

Following are some of the key takeaways that Fran offered to women looking to launch successful businesses and/or to break through barriers to the Boardroom.

Play to Win

Fran started off the discussion by talking about how women are the heart of small business yet only 2% of venture-backed businesses are women owned. And, According to 2020 Women on Boards, 29% of Fortune 1000 companies still have one or no women on the Board. Most of the problem lies in how money is raised and how boardroom talent is sourced, but women can also hold themselves back.

Fran gave examples of times in her career when she has seen women decide to cash in their chips early on in the lifecycle of a startup or lay off employees rather than invest their own money to keep the startup growing. She said that same fear that makes women risk adverse also stops them from asking for what they want, such a money and board assignments.

“Women play to survive,” said Fran. “Women should play to win.”

Support Other Women

Women who play to win support each other. For example, in the ’90s, in between ventures and lamenting the recession over drinks, Fran and a female peer vowed to always help each other in business. Fran coached her friend on landing a high profile position at a leading technology company. Then, when Fran was the CEO of TRUSTe and transitioning it from a non-profit to a venture backed for-profit, her friend introduced her to a woman at a leading venture capital firm who would become TRUSTe’s lead investor and later Babierge’s first angel investor. The more women who reach out and support each other, the further women will come in making strides in the C-suite and the boardroom. Professional women should avail themselves to the plethora of opportunities (SheEO and Portfolia, for example) to invest and advise early women-led start-ups

 Ask for What You Want and Be Persistent

 Sometimes you have to make “unreasonable requests.” Of course you will not always get what you ask for, but you will never get what you do not ask for. Persistence is the key success. And making sure that you are brave enough to ask for help as well as to make the “big asks” – whether that be venture capital money, or equity, or a title or whatever it is that you need and want to be a success. The first step is to know who to ask and then to ask.

 Network and Get on the Lists

 Networking remains the dominant means that companies source boardroom talent. Going back to the importance of asking for what you want, women should tell the people around them, including their higher ups, that they are interested in serving on a board. There are also specific board registries that connect women with boardroom opportunities and anyone thinking about pursuing a corporate board position should investigate those services. (BoardList, Equilar, . . . )

Build A Boardroom Ready Resume

Women need to keep in mind that pursuing a boardroom position is different than landing a job. When it comes to breaking through the barriers to the boardroom, women should think about the functional experience that boards need in this current business climate and highlight how their experience alleviates the board’s pain points.

For example, many board members lack the technology knowledge to navigate a business environment riddled with privacy and security risks. Women with privacy, security and e-commerce talent should emphasize these skills on their boardroom resumes. You may also have specific finance or other relevant experience. Work with a consultant or talk to anyone you can to learn how to make your resume read “board ready.”


VTech to Pay $650,000 to Settle FTC COPPA Complaint

Last week, the Federal Trade Commission announced a settlement with toy manufacturer VTech Electronics, its first action involving internet-connected toys. In its complaint, the FTC alleged that VTech’s information collection and security practices related to certain child-directed services violated the Children’s Online Privacy Protection Act (COPPA) and that a misrepresentation in its privacy policy separately violated the FTC Act’s prohibition on deceptive practices.  The action follows a 2015 hack of VTech that exposed data regarding 6.4 million child users of its services.

VTech sells (among other things) “electronic learning products” targeted to children ages 3-9.  Primarily at issue in the FTC’s complaint was an app called Kid Connect that could be used by children through some of these toys. To use Kid Connect, a parent first had to register an account through VTech’s Learning Lodge website and then set-up Kid Connect accounts for themselves and their child(ren). By November 2015, there were over 638,000 Kid Connect child accounts.

Once registered, children could use Kid Connect to communicate with contacts who had been authorized by the child’s parent by using a direct-messaging feature or posting to a message board.  Per the FTC, VTech collected COPPA-regulated personal information from Kid Connect users, “including the content of text messages or messages to shared electronic bulletin boards, user names for a child that could be used to contact the child, and photographs and audio files containing a child’s image or voice.” Continue Reading

InfoLawGroup is a featured privacy and security firm in LegalTech News article

InfoLawGroup is honored to be among  the law firms featured in the recent LegalTech News article “The Data Defenders: How Firms Focused on Privacy and Security Make Their Living.” The article discusses how the selected privacy and cybersecurity-focused law firms  are uniquely meeting the challenges facing clients today.  The article features InfoLawGroup Partner Justine Young Gottshall discussing how InfoLawGroup works as an extension of the in-house team to address  these important matters for clients. 

Log into LegalTech News to read the full article (account required).



Deadline is Set for Enhanced Notice in Online Interest-Based Video Ads

The Online Interest-Based Advertising Accountability Program (“Accountability Program“), the enforcement program run by the Better Business Bureau (BBB), announced that the time has come for companies to give enhanced (just-in-time) notice to consumers in online interest-based (behavioral) video advertisements.  As of April 1, 2018, the Accountability Program will require companies to provide consumers enhanced notice with every video ad roll (mobile and desktop) that target to a consumer on the basis of their perceived interests.  The date was announced this week in a press release and Compliance Warning. Continue Reading