Against the background of lawsuits and debate about the role of communications service providers in moderating speech on their platforms, the U.S. Supreme Court has weighed in, affirming that private entities that host forums for speech are not state actors subject to constitutional requirements.

The Decision

In a 5-4 decision by Justice Kavanaugh, the Court held in Manhattan Community Access Corp. v. Halleck, 587 U.S. __ (2019) that a private, nonprofit corporation operating a public-access TV channel is not a state actor subject to the First Amendment. Producers of public access programming had claimed the channel was a state actor that violated their First Amendment rights after it suspended them from its services due to their films’ content. The Court disagreed. Continue Reading SCOTUS: Private Entities Operating Forums for Speech Are Not State Actors

Businesses that market and sell to consumers are heavily focused on navigating federal and state legal issues related to advertising, privacy, promotions, products liability, government investigations, unfair competition, class actions and general consumer protection. The California Consumer Privacy Act (CCPA) has introduced a series of robust obligations for brick and mortar businesses that collect personal information about those consumers, which creates numerous compliance challenges. These businesses – most commonly retailers and the hospitality industry – can minimize legal risk by understanding their data environment and the specific compliance obligations of the company.

Join us for CCPA Week: A series of webinars hosted by Perkins Coie’s Privacy & Data Security practice focused on getting your business ready to comply with this enigmatic statutory scheme. One webinar, in particular—How California’s New Privacy Law Impacts Brick-and-Mortar Businesses—will explore how the CCPA differs from the GDPR and how retailers can leverage existing compliance initiatives and governance programs to prepare for compliance.

Register here for the entire series, or select the brick-and-mortar-specific webinar from the list of topics that will be presented.

How California’s New Privacy Law Impacts Brick-and-Mortar Businesses
Date: Wednesday, July 17, 2019
Time: 10:00 a.m. PT | 12:00 p.m. CT | 1:00 p.m. ET

Takeaways:

  • Recent detection of cosmetic products containing asbestos has led to voluntary recalls of five products so far this year.
  • At present, the FDA does not have mandatory recall authority over cosmetic products.
  • The FDA and Congress are contemplating proposals concerning the cosmetics industry that may lead to further enforcement activity in this sector.

Continue Reading Talc, Asbestos, and FDA Regulation of Cosmetics

On the heels of three FTC consent decrees involving the Consumer Review Fairness Act (CRFA), the FTC has brought two more CRFA-related complaints against home-rental businesses.

Broadly speaking, the CRFA, which became effective in 2017, makes it unlawful for a business to prohibit its customers from being able to post negative reviews online. As predicted, we are seeing an increase in FTC enforcement of the CRFA in 2019. Continue Reading FTC Enforcement of the CRFA is Underway

Takeaway: The U.S. Supreme Court ever so slightly trimmed removal rules under the Class Action Fairness Act (CAFA) last week in Home Depot U.S.A., Inc. v. Jackson, No. 17-1471. In an opinion by Justice Thomas, the Court held that neither CAFA nor the general removal statute (28 U.S.C. § 1441(a)) permit removal by a third-party counterclaim defendant. That is, a party brought into the suit through a claim filed by the original defendant cannot remove the case to federal court.

Continue Reading Supreme Court Holds Third-Party Defendant Can’t Remove Class Actions Under CAFA

California’s new Autobot Law, Cal. Bus. & Prof. Code § 17940, et seq. (SB 1001), which goes into effect July 1, 2019, may affect businesses that use chatbots to interact with customers online. As the nation’s first autobot regulation, SB 1001 makes it unlawful “to use a bot to communicate or interact with another person in California online, with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

We detail the background, disclosure requirements and enforcement mechanism for this new Autobot Law.

Read More

Nevada is the latest state to strengthen privacy laws to address the perceived need for more oversight of how companies handle personal data. On May 29, 2019, Nevada’s governor signed into law Senate Bill 220, which amends the state’s online privacy notice statute, Nev. Rev. Stat. Ann. § 603A.300 et. seq. The amendments provide consumers with the right to restrict an entity’s “sale” of covered information while also excluding certain entities from the statute’s application. The amendments become effective October 1, 2019.

Continue Reading Nevada Expands Online Privacy Law to Grant Consumers Additional Rights While Excluding Certain Institutions From Compliance

The United States Supreme Court recently held that classwide arbitration cannot be inferred from an ambiguous agreement.  The Supreme Court’s decision reverses a Ninth Circuit decision that relied on state contract principles to compel classwide arbitration of a putative class action filed by an individual employee.

In Lamps Plus, Inc. v. Varela, __ U.S. __ (April 24, 2019), the Court considered whether the Federal Arbitration Act (“FAA”) forecloses interpretation of an ambiguous arbitration agreement compelling classwide arbitration.  The Ninth Circuit affirmed the trial court’s determination that an agreement that stated “arbitration shall be in lieu of any and all lawsuits or other civil legal proceedings” was ambiguous as to whether it authorized class arbitration.  Applying California state contract principles to construe the agreement against the drafter, the Ninth Circuit held there was sufficient ambiguity to conclude the parties agreed to class arbitration. Continue Reading Supreme Court Holds That Class Arbitration Cannot Be Inferred from Ambiguous Agreement

The Ninth Circuit recently held a company vicariously liable for the actions of a downstream vendor of text message and telephone marketing activities. Companies should consider due diligence and vendor oversight protocols as counter-measures to limit the risk of liability for digital advertising and text marketing activities. Read the full article here.

On August 7, 2019, the Federal Trade Commission (FTC) will host a public workshop to examine consumer protection issues related to the sale of “loot boxes” in video games.

For those unfamiliar with the phrase, “loot boxes” are often in-game rewards that players can buy that typically contain a random assortment of virtual “loot” items for players to use in the game (e.g., to help them succeed or to customize their in-game avatars). Although loot boxes contain virtual rewards, they are purchased with real money and are becoming an increasingly popular revenue source for game developers. However, class action lawsuits, U.S. senators,  and the FTC have questioned the techniques used to market loot boxes in video games and whether there is a risk that minors can become addicted or otherwise be exploited by these in-game offers. Continue Reading FTC to Hold Workshop on Consumer Protection Issues Related to Video Game Loot Boxes