Consumer Protection Law Developments, Second

EditionWhat’s new, noteworthy, and important:

Upcoming consumer protection issues and legal developments.

Moderators

Daniel Savrin, Morgan Lewis & Bockius, LLPCo-Chair of the Editorial Board of Consumer Protection Law Developments (Second Edition)https://www.morganlewis.com/bios/danielsavrinhttps://www.morganlewis.com/services/consumer-protection-defense

Christine Sommer, Wilmer Hale LLPCo-Chair of the Editorial Board of Consumer Protection Law Developments (Second Edition)https://www.wilmerhale.com/christine_sommer/

Editorial Board MembersChapter I—Deceptive and Unfair PracticesKatrina Robson, O’Melveny & Myers LLP

Chapter II—Privacy Issues in Consumer Protection Aryeh Friedman, Dun & Bradstreet (speaker)

Chapter III—Promotions and Specialized Product MarketingGonzalo Mon, Kelley, Drye & Warren LLP

Chapter IV—The Federal Trade CommissionGregory Fortsch, NBTY, Inc. (speaker)Meghan Gray, Federal Trade Commission

Chapter V—The Consumer Financial Protection BureauAllyson Baker, Venable, LLP (speaker)

Chapter VI—State Consumer Protection LawsErvin Switzer, Greensfelder, Hemker & Gale, P.C. (speaker)Michael Schwalbert, Greensfelder, Hemker & Gale, P.C. (speaker)

Chapter VII—Private Remedies for False or Misleading Advertising: Lanham Act Section 43(a)Christopher Cole, Crowell & Moring LLP

Chapter VIII—Advertising Self-RegulationDavid Mallen, Loeb & Loeb, LLP

Chapter IX—International Consumer Protection LawSheila Millar, Keller & Heckman LLP

CPLD II, Chapter 2: “Privacy Issues in Consumer Protection”

Aryeh FriedmanVice President, Associate General Counsel and Chief Privacy Officer

Dun & Bradstreet

Chapter ReorganizationA. Introduction B. Overview of U.S. Regulatory Structure

– Fair Information Privacy Principles– Federal Regulation of Privacy– Privacy Restrictions on the Federal Government– State Laws – Self Regulation

C. Sector-Specific Regulation – Financial Information – Health Care – Children’s Online Privacy Protection Act (COPPA) – Family Educational Rights and Privacy Act (FERPA)– Telephone Records – Television and Video Records – Computer Records

D. Social Media and Marketing, – Social Media – Marketing

E. Private Litigation and Class Actions

Key Trends in the Dynamic Privacy Field

• Private Litigation: – Spokeo: Supreme Court held that a plaintiff needs more than a statutory

right of action in order to sue; the plaintiff also needs a concrete, particularized injury required by Article III.

• Increased US Agency Oversight of Privacy: – FTC, FCC and CFPB all asserting jurisdiction over Privacy– Wyndham: The FTC had the authority to regulate cybersecurity under

the unfairness prong of Section 5 of the FTC Act and that Wyndham had fair notice that its specific cybersecurity practices could be challenged without violating due process.

• Impact of International Privacy Law on US Business: – Privacy Shield (replacing Safe Harbor) – GDPR Assertion of Extraterritorial Assertion– Global scope of EU’s “Right to be Forgotten”

Aryeh Friedman

• Aryeh Friedman, Vice President, Associate General Counsel and Chief Privacy Officer of Dun & Bradstreet with global responsibility for privacy and data security. He also provides support on anti-corruption, export and trade sanctions law compliance.

• Prior to joining Dun & Bradstreet, Mr. Friedman was the VP, Associate General Counsel and Chief Privacy Officer at Pfizer. Mr. Friedman also has an extensive background in competition and antitrust law, having served as Chief Antitrust Counsel at Wyeth and before that at British Telecom and AT&T. Prior to going in-house Mr. Friedman was at Drinker, Biddle & Reath and Paul, Weiss, Rifkind Wharton & Garrison.

• Mr. Friedman has taught for over 20 years at the Wharton School of the University of Pennsylvania in the Legal Studies and Business Ethics Department. Mr. Friedman is Vice Chair of the ACC’s Compliance and Ethics Committee and the ABA’s Privacy and Information Security Committee.

• Mr. Friedman received a BS from Cornell University and is a graduate of the New York University School of Law. He also studied at the London School of Economics.

CPLD II, Chapter 4: “The Federal Trade Commission”

Gregory W. FortschSenior Legal Counsel - Regulatory

NBTY, Inc.

Key Federal Trade Commission Chapter Developments

• FTC and CFPB are now covered in two separate chapters – easier to follow, more streamlined

• Great deal of new information and updates since the 2013 supplement– New organization of FTC’s Bureau of Consumer Protection– Facebook denial of liability consent question– Regulatory review schedule for next 10 years, including review of

Telemarketing Sales Rule– Increased enforcement in financial practices area in light of CFPB

presence/jurisdiction– Credit Practices Rule – South Dakota payday lending operation– Motor Vehicle enforcement– Debt Relief/Debt Settlement Cases

Key Federal Trade Commission Chapter Developments (continued)

• New Information/Updates (continued)– Magnuson Moss Warranty Act

• Tying Arrangement matter– Proposed Telemarketing Sales Rule – remotely created checks– 217 million consumers on Do Not Call Registry– Robocall Challenge – FTC’s First Public Contest– Revisions to Fair Packaging & Labeling Act/labeling of non-foods– Food Labeling & Advertising

• POM case & 2 RCT requirement– Health Claims in Non-Foods – Reebok/Skechers– Cigarettes, tobacco, cigars, e-cigarettes - updates/developments– Jewelry, Recycled Oil, Fuel Rating, Leather– Green Guides – unsubstantiated “free of”, “non-toxic”, and

“biodegradable” claims addressed in consent orders

Gregory Fortsch

• Greg Fortsch, Senior Legal Counsel, NBTY, Inc., oversees all regulatory and compliance matters for the Company, domestically and internationally, to ensure that the company’s products meet all applicable laws and regulations, including those laws specifically enforced by the FTC and FDA.

• Prior to joining NBTY, Greg was an assistant director and senior attorney in the FTC’s Bureau of Consumer Protection, where, for nearly 9 years, he worked in the Divisions of Planning & Information and Advertising Practices and as counsel to the Bureau Director. Prior to his time at the FTC, he worked as a trial attorney in the Civil Division at the U.S. Department of Justice, an appellate attorney in the General Counsel’s Office of the Department of Veterans’ Affairs, an associate at ManattPhelps & Phillips and Epstein Becker & Green, and a law clerk to the Honorable Mark B. Epstein of the Superior Court of New Jersey.

• Greg is an adjunct professor at Georgetown University Law Center and is a member of the Association of Corporate Counsel Foundation.

• Greg received a BA from The Johns Hopkins University and a JD from Seton Hall University School of Law.

CPLD II, Chapter 6: “State Consumer Protection Laws”

Erwin SwitzerMichael Schwalbert

Greensfelder, Hemker & Gale P.C.

State Consumer Protection Laws Chapter in CPLD 2nd Edition

• Updated coverage of key issues for multistate consumer protection law practitioners.

• Double the content compared to 1st Edition.• Authors for 42 of the 51 jurisdictions are “local” consumer protection

lawyers.• Additional citation to relevant caselaw and analysis of nuanced or

unsettled areas (e.g. standing, “unfairness”).• Additional coverage of substantive areas (e.g. relevant administrative

rules, treatment of class actions and arbitration).

FAA Preemption and Class Action Waivers Remain an Issue in Consumer

Law Cases

• Some state courts continue to invalidate arbitration clauses/class waivers in the wake of AT&T Mobility v. Concepcion, 563 U.S. 333 (2011) and American Express v. Italian Colors, 133 S.Ct. 2304 (2013).

• Consumer protection claims represent particularly fertile grounds in the arbitration/class waiver context:– Class waiver in absence of a valid arbitration agreement– “Unconscionability” and “Mutuality”

Trends and Hot Issues

• Tend to be “teaching an old dog new tricks,” and can vary from state to state.

• Data Breach and Privacy– “Traditional” consumer protection laws may fill in gaps left by specific

state data breach laws.– FTC v. Wyndham, 799 F.3d 236 (3rd. Cir. 2015): A green light for state

unfairness claims?– Proving damage remains an issue (and could vary widely based on

state definitions).• Inflated Savings Claims: “Sales” vs. “regular” prices • Food Labeling: Product ingredients and “natural” claims• Establishing an appropriate damages model remains a hot issue.

Erv SwitzerMichael Schwalbert

• Erv Switzer is an Officer with Greensfelder, Hemker & Gale in St. Louis, Missouri, representing clients in private and governmental enforcement consumer matters. Previously Erv served for 11 years as a Chief Counsel in the Missouri Attorney General’s Office, handling local and multi-state consumer actions.

• Michael Schwalbert is an Associate with Greensfelder, Hemker & Gale in St. Louis, Missouri, representing clients in private and governmental enforcement consumer matters. In addition to working on the CPLD, Michael is an Associate Editor for the ABA’s Antitrust Magazine.

CPLD II, Chapter V: “Consumer Financial Protection Bureau”

(New Chapter for CPLD)

Allyson B. BakerVenable LLP

Jurisdiction: Supervisory, Enforcement & Regulatory Authority

• Banks with more than $10 billion in assets, concerning the offering or provision of a consumer financial service or product, and these banks’ affiliates

• Generally nonbanks concerning the offering or provision of a consumer financial service or product

• Service providers

• Related persons

Laws that the CFPB Enforces

• Unfair, Deceptive, or Abusive Acts or Practices (UDAAP)

– Unfair: Defined in Dodd-Frank; same as Federal Trade Commission Act

– Deceptive: Not defined in Dodd-Frank; CFPB has looked to the Federal Trade Commission Act

– Abusive: Defined in Dodd-Frank; new standard

• Enumerated Consumer Laws

Enforcement Authority

• Investigations & Civil Investigative Demand Authority– Any person or company that the CFPB has reason to believe

has information about a violation• Litigation

– Adjudication proceedings: CFPB can seek a cease-and-desist order to enforce compliance with laws through its administrative process as to any covered person

– District court: CFPB can bring cases in its own name in federal district court against “any person” who “violates a Federal consumer financial law”

Allyson B. Baker

• Allyson Baker, who is a partner at Venable’s litigation group, is a trial attorney and civil litigator. She focuses her practice on litigation involving consumer finance, financial fraud, and complex financial transactions and on law enforcement investigations involving financial institutions.

• Immediately before joining Venable, Ms. Baker was an Enforcement Attorney at the CFPB where she served as lead counsel in In the Matter of Discover Bank, which was one of the first enforcement actions in agency history. She was a member of the initial team of attorneys hired to stand up the CFPB’s Office of Enforcement. As part of this effort, she helped formulate policies on litigation and investigations. She also led an office working group that created, reviewed, and coordinated research projects involving the application and jurisdiction of the Dodd-Frank Act and group that coordinated the work of the Office of Enforcement and the CFPB’s Office of Fair Lending and Equal Opportunity.

• Before joining the CFPB, Ms. Baker was a Trial Attorney with the DOJ, Tax Division, Civil Section, where she served as trial counsel in a number of jury and bench trials involving complex financial transactions, for which Ms. Baker received a special commendation from IRS Chief Counsel. While at the Tax Division, she also received three Outstanding Attorney Awards.

• Ms. Baker has represented Four Oaks Bank & Trust Company in the first public enforcement action in “Operation Choke Point,” a DOJ-led law enforcement initiative. Ms. Baker is currently representing numerous consumer finance companies in confidential investigations initiated by the CFPB’s Office of Enforcement and in numerous first-impression cases involving the CFPB. She routinely serves as litigation counsel for financial services companies, advises these companies about all aspects of the consumer financial laws and about their dealings with the CFPB. Ms. Baker received her BA from Columbia University and her JD, cum laude, from New York

University School of Law.

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