Influencer Marketing Remains in FTC’s Crosshairs

06633 - Royall, M. Sean ( Dallas )Featured Expert Column: Antitrust & Competition Policy — Federal Trade Commission

By M. Sean Royall and Richard H. Cunningham, Partners with Gibson, Dunn & Crutcher LLP, and Andrew B. Blumberg, an Associate in the firm’s Dallas, TX office.  The authors would like to thank Philip Jacob Spear, who is also an Associate in Gibson Dunn’s Dallas office, for his substantial contributions to this post.

Social media “influencers” are individuals with large followings on social media platforms, including Facebook, Instagram, YouTube, Twitch, Twitter, and Snapchat, among others.   Influencers include various members of the Kardashian family, a wide array of professional athletes, and individuals whose broad following is home-grown online and on social media. Influencers may tout products or services on their social media pages or feeds in exchange for compensation, effectively turning themselves into an advertising channel. Continue reading “Influencer Marketing Remains in FTC’s Crosshairs”

Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit

formulaFood Court Follies—A WLF Legal Pulse Feature

Several of our recent commentaries (here and here) have extolled the virtues of national uniformity for the regulation of interstate commerce. Those posts focused on litigation involving federally regulated prescription drugs and devices. But state consumer-protection litigation poses an even greater threat to regulatory uniformity.

Federal preemption—the constitutional doctrine that state-law litigation targets regularly cite as a defense—has generally been an ineffective argument against consumer-protection suits, especially those alleging misleading or false labeling of food and other packaged goods. A January 3, 2018 federal trial court ruling, Organic Consumers Association v. Hain Celestial Group, Inc., is a welcome exception to that trend. It’s also notable for how clearly the court explained implied preemption and the broader principle of uniformity underlying the defense. Continue reading “Textbook Application of “Obstacle” Preemption Negates Activists’ Organic Food-Labeling Suit”

Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law

9thCirA post last month, Second Circuit Improperly Ducks Important First Amendment Issues, criticized the U.S. Court of Appeals for the Second Circuit’s decision to certify a question to New York’s highest court in a challenge to a state law restricting merchants’ ability to inform their customers of credit-card surcharges. WLF Chief Counsel Richard Samp argued that the court possesses all the information it needs to decide Expressions Hair Design v. Schneiderman. WLF filed an amicus brief in support of the petitioner in that case.

On January 3, the Ninth Circuit decided the same issue the Second Circuit had ducked involving an analogous law. The court found that a California law that prohibited merchants from imposing a surcharge to cover credit-card fees, but allowed them to provide discounts to cash customers, violated the First Amendment rights of five California businesses. Italian Colors Rest. v. Becerra. Continue reading “Update: Ninth Circuit Issues First Amendment Ruling on Credit-Card Surcharge Law”

Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons

first-amendmentAs the country debates the best path forward for the nation’s healthcare system, interest groups continue to advance different ideas to address their pet causes.  One popular cause is the reduction of drug prices.  Though that debate often occurs based on narrow perceptions of the dollar figures at issue, ideas for price reduction are worthy of consideration, especially given the increasing budgetary percentage that government and personal spending healthcare now occupies.  One drug-price-reduction idea advanced toward the end of last year, however, should be vigorously opposed. Continue reading “Same-Old Drug Advertising Ban Proposal Would Fail for the Same-Old Reasons”

The “No-Safe-Level” Theory Is Just as Bad in the Real World as in Litigation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

Plaintiffs who allege cancer from asbestos often rely on the theory that there is no safe level of exposure.  Because there is no safe level, any exposure can be considered a cause of disease, so the theory goes (I’ve written for this blog on the theory here.).  That causation theory has been criticized on the ground it conflates causation with the risk of injury.  The flaws with that theory when it’s applied to asbestos litigation become all the more apparent when it is applied in other, real-world contexts.  The concept of no safe level can cause policy makers to exaggerate risks and can even lead to unnecessary injuries. Continue reading “The “No-Safe-Level” Theory Is Just as Bad in the Real World as in Litigation”

California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions

poolThis year’s rankings by civil-justice reform organizations (here and here) of states’ legal systems once again placed California near the bottom (or top, depending on how the listings are done) of the pack.  One of the California Supreme Court’s final decisions of 2017, which imposes liability on a pharmaceutical company for harm allegedly caused by a generic competitor’s copycat product, solidifies that hostile reputation going into a new year.

We write today, however, not to pile on (though we wholeheartedly share others’ California concerns), but to spotlight a December 4, 2017 California Court of Appeal ruling that is not only contrary to the state courts’ pro-litigation image but also bucks a national trend on a key class-action law issue. The question at issue in Noel v. Thrifty Payless, Inc. was whether a court can certify a class of plaintiffs when no objective method exists to ascertain who is or is not a class “member.” Continue reading “California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions”

President Commutes Sentence of Business Owner Victimized by Overcriminalization

rubashkinOn Wednesday, December 20, President Trump issued a statement commuting the sentence of Sholom Rubashkin, the former CEO of a kosher meatpacking plant. He had been convicted of financial fraud in 2009 and sentenced to 27 years in prison—a virtual life sentence for the then-51-year old Rubashkin. He had served 8 years of that sentence. Washington Legal Foundation actively participated in the courtroom and public resistance to the excessive sentence through amicus briefs and published commentaries. Continue reading “President Commutes Sentence of Business Owner Victimized by Overcriminalization”