Power in Numbers: Insight Into State AG/FTC Collaborations

Affiliate Summit
Affiliate SummitCo-Founder at Affiliate Summit
www.ifrahlaw.comP (202) 524-4145 /
Power in Numbers:
Insight Into State AG/FTC Collaborations
Affiliate Summit East Conference: August 1, 2016
Rachel Hirsch, Senior Associate
Lori Kalani, Co-Chair State AG Group
Michael C. Turpen, Shareholder
www.ifrahlaw.com
Speakers
www.ifrahlaw.com
The FTC’s Mission
P (202) 524-4145 /
FTC’s “Bread and Butter” Mission Falls Primarily Into Three Categories:
1. Fighting Fraud
2. Stopping Deceptive Advertising
3. Protecting Consumer Privacy
www.ifrahlaw.com
What’s In The FTC’s Arsenal?
P (202) 524-4145 /
The FTC Enforces Consumer Protection Statutes, Including:
Fair Credit Reporting Act
Fair Debt Collection Practices Act
Federal Trade Commission Act
Gramm-Leach-Bliley Act
Lanham Trade-Mark Act
CAN-SPAM Act
Telemarketing And Consumer
Fraud And Abuse Act
Truth in Lending Act
www.ifrahlaw.com
The FTC’s Most Powerful Weapon
P (202) 524-4145 /
The Most Powerful Weapon The FTC Uses To Combat Consumer Fraud
Section 5(a) Of The Federal Trade Commission Act
Prohibits “Unfair Or Deceptive Acts Or Practices In Or Affecting Commerce”
www.ifrahlaw.com
What Constitutes “Unfair” Acts Or Practices?
P (202) 524-4145 /
An Act Or Practice Is “Unfair” Where It
• Causes Or Is Likely To Cause Substantial Injury To Consumers;
• Cannot Be Reasonably Avoided By Consumers; And
• Is Not Outweighed By Countervailing Benefits To Consumers Or To
Competition.
Public Policy (As Established By Statute), Regulation, Or Judicial
Decisions May Be Considered.
www.ifrahlaw.com
What Constitutes “Deceptive” Acts Or Practices?
P (202) 524-4145 /
An Act Or Practice Is Deceptive Where
• A Representation, Omission, Or Practice Misleads Or Is Likely To
Mislead The Consumer;
• A Consumer’s Interpretation Of the Representation, Omission, Or
Practice Is Considered Reasonable Under The Circumstances;
And
• The Misleading Representation, Omission, Or Practice Is
Material.
www.ifrahlaw.com
FTC Act – Enforcement
P (202) 524-4145 /
Statutory Right To Obtain Temporary Restraining Order & Preliminary
Injunctions Against Any Person, Corporation, Or Partnership That Is
Violating/About To Violate Any Law Enforceable By The FTC If The FTC Believes
It To Be In the Public Interest.
 Requires Standard Balancing Of Equities, Consideration of FTC’s
Likelihood of Success.
 Permits Courts To Exercise All Ancillary Equitable Powers In Action For
An Injunction, Including:
• Asset Freezes
• Appointment of Receivers
• Restitution And Other Relief
www.ifrahlaw.com
“Mini-FTC Act”
P (202) 524-4145 /
Each Of The 50 States Has Its Own Version Of the FTC Act – Collectively
Known As The “Little Acts.”
 Generally Tailored To Meet Specific Policy Preferences Of Each
Particular State.
 Usually Applied To State-Specific Matters, While FTC Act Used To
Regulate Broader Consumer Protection Issues On National Scale.
www.ifrahlaw.com
Role of State Attorney Generals
P (202) 524-4145 /
 Moving Force Behind All Multi-State Investigations
 Akin To Managing Partner Of Law Firm
 Enforcement Arm Of State For Consumer Protection
 Broad Discretion To Pursue Matters Of “Public Interest”
www.ifrahlaw.com
Election Vs. Appointment Of AGs
P (202) 524-4145 /
 Popularly Elected In 43 States (Including CA), Guam, D.C.
 Appointed By Governor In 5 States (AK, HI, NH, NJ, WY), 4 Jurisdictions
(American Samoa, Northern Mariana Islands, Puerto Rico, Virgin
Islands)
 Selected By Secret Ballot Of Legislature (ME)
 Selected By State Supreme Court (TN)
www.ifrahlaw.com
National Association Of Attorney Generals
(NAAG)
P (202) 524-4145 /
 Mission: “To Facilitate Interaction Among Attorneys General As Peers
And To Facilitate The Enhanced Performance Of Attorneys General And
Their Staffs.”
 Membership: Attorneys General Of The 56 States And Territories
 Key Projects:
• Antitrust
• Bankruptcy
• Civil Rights
• Consumer Protection
• Criminal Law
• Cybercrime
• Environment
• Legislation
• Medicaid Fraud
• Supreme Court
• Tobacco
• Violence Against Women
www.ifrahlaw.com
FTC’s Joint Mission With State AGs
P (202) 524-4145 /
 Joint Investigations And Enforcement
• Robocalls
• Timeshare Resale Fraud
• Weight Loss Scams
• Mortgage Rescue Scams
• Business Opportunity Schemes
 Education And Outreach
• National Consumer Protection Week
• Military Consumer Protection Week
 Sharing Consumer Complaints
• Access To FTC Sentinel Database
 Holding Common Ground Events And Working Together Through Task
Forces And Working Groups
 Charities
www.ifrahlaw.com
Triggers For Investigation
P (202) 524-4145 /
Consumer Complaints Industry-Wide Sweeps
Competitors
Monitoring/ “Surf” Days
Media Stories
www.ifrahlaw.com
Why The Rise In Collaborations?
P (202) 524-4145 /
POWER IN NUMBERS!
 Availability of Civil Penalties Under State Law
 Information Sharing
 Broad Investigative Authority
 Pooling of Resources
www.ifrahlaw.com
FTC/STATE AG COLLABORATIONS –
CASE STUDY #1
P (202) 524-4145 /
www.ifrahlaw.com
FTC/STATE AG COLLABORATIONS –
CASE STUDY #2
P (202) 524-4145 /
www.ifrahlaw.com
FTC/STATE AG COLLABORATIONS –
CASE STUDY #3
P (202) 524-4145 /
www.ifrahlaw.com
FTC/STATE AG COLLABORATIONS –
CASE STUDY #
P (202) 524-4145 /
www.ifrahlaw.com
FTC/STATE AG COLLABORATIONS –
CASE STUDY #5
P (202) 524-4145 /
www.ifrahlaw.com
Lessons From Recent Enforcement Actions
P (202) 524-4145 /
Respond
Re-Evaluate
Train
Monitor
Maintain
www.ifrahlaw.com
When A CID Issues
P (202) 524-4145 /
 Call A Lawyer.
 Preserve Your Documents.
• When You Receive A CID/Subpoena, All Relevant Documents And Electronic
Information Must Be Preserved Through A Legal Hold.
• Make A Concerted Effort To Identify Key Employees And Systems Using Storing
Information.
• Have Lawyers Draft a Legal Hold That Clearly Defines The Information That
Must Be Preserved.
• Hold Should Be Issued To A Carefully Identified Group of Employees That May
Have Knowledge Of The Potentially Responsive Information.
• Revisit Hold On A Regular Basis.
Failure To Implement An Adequate And Timely Legal Hold May Result In
Sanctions.
www.ifrahlaw.com
Navigating The CID Response
P (202) 524-4145 /
Read Thoroughly
Preserve Immediately
Negotiate Carefully
Maintain Confidentiality
Produce Cautiously
Choose Wisely
www.ifrahlaw.com
Getting To Settlement
P (202) 524-4145 /
Pre/Post-Litigation Timing
Monetary/Injunctive Relief Settlement Documents
www.ifrahlaw.comP (202) 524-4145 /
Rachel Hirsch
rhirsch@ifrahlaw.com
Twitter: @TheRealMsHirsch
Blog: www.ftcbeat.com
Lori Kalani
lkalani@cozen.com
Twitter: @lorikalani
Michael C. Turpen
Mturpen@riggsabney.com
Twitter: @MikeCTurpen
Questions?
www.ifrahlaw.comwww.ifrahlaw.comP (202) 524-4145 /
THANK YOU!
1 of 26

Recommended

How to Growth Hack the Affiliate Earnings of Your Blog by
How to Growth Hack the Affiliate Earnings of Your BlogHow to Growth Hack the Affiliate Earnings of Your Blog
How to Growth Hack the Affiliate Earnings of Your BlogAffiliate Summit
755 views45 slides
Social Media for Boring Businesses by
Social Media for Boring BusinessesSocial Media for Boring Businesses
Social Media for Boring BusinessesAffiliate Summit
279 views45 slides
Affiliatize Me: Earning Revenue from User-Generated Links by
Affiliatize Me: Earning Revenue from User-Generated LinksAffiliatize Me: Earning Revenue from User-Generated Links
Affiliatize Me: Earning Revenue from User-Generated LinksAffiliate Summit
734 views24 slides
Affiliate Marketing: Why Data Matters by
Affiliate Marketing: Why Data MattersAffiliate Marketing: Why Data Matters
Affiliate Marketing: Why Data MattersAffiliate Summit
942 views13 slides
Your Links are Broken! Maximizing Sales in Fragmented Stores by
Your Links are Broken! Maximizing Sales in Fragmented StoresYour Links are Broken! Maximizing Sales in Fragmented Stores
Your Links are Broken! Maximizing Sales in Fragmented StoresAffiliate Summit
565 views20 slides
Boost Your Marketing with Faux Holidays and Special Events by
Boost Your Marketing with Faux Holidays and Special EventsBoost Your Marketing with Faux Holidays and Special Events
Boost Your Marketing with Faux Holidays and Special EventsAffiliate Summit
998 views39 slides

More Related Content

Viewers also liked

Expanding Reach: How Affiliates and Social Drive Together by
Expanding Reach: How Affiliates and Social Drive TogetherExpanding Reach: How Affiliates and Social Drive Together
Expanding Reach: How Affiliates and Social Drive TogetherAffiliate Summit
699 views28 slides
Attribution and Affiliate Marketing: Where are We Now? by
Attribution and Affiliate Marketing: Where are We Now?Attribution and Affiliate Marketing: Where are We Now?
Attribution and Affiliate Marketing: Where are We Now?Affiliate Summit
1.2K views29 slides
10 Cardinal Sins of Affiliate Marketing by
10 Cardinal Sins of Affiliate Marketing10 Cardinal Sins of Affiliate Marketing
10 Cardinal Sins of Affiliate MarketingAffiliate Summit
833 views29 slides
How Big Brands Handle FTC Demands by
How Big Brands Handle FTC DemandsHow Big Brands Handle FTC Demands
How Big Brands Handle FTC DemandsAffiliate Summit
911 views20 slides
The Now, The New, The Next in Mobile by
The Now, The New, The Next in MobileThe Now, The New, The Next in Mobile
The Now, The New, The Next in MobileAffiliate Summit
988 views18 slides
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market... by
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...Affiliate Summit
882 views22 slides

Viewers also liked(7)

Expanding Reach: How Affiliates and Social Drive Together by Affiliate Summit
Expanding Reach: How Affiliates and Social Drive TogetherExpanding Reach: How Affiliates and Social Drive Together
Expanding Reach: How Affiliates and Social Drive Together
Affiliate Summit699 views
Attribution and Affiliate Marketing: Where are We Now? by Affiliate Summit
Attribution and Affiliate Marketing: Where are We Now?Attribution and Affiliate Marketing: Where are We Now?
Attribution and Affiliate Marketing: Where are We Now?
Affiliate Summit1.2K views
10 Cardinal Sins of Affiliate Marketing by Affiliate Summit
10 Cardinal Sins of Affiliate Marketing10 Cardinal Sins of Affiliate Marketing
10 Cardinal Sins of Affiliate Marketing
Affiliate Summit833 views
The Now, The New, The Next in Mobile by Affiliate Summit
The Now, The New, The Next in MobileThe Now, The New, The Next in Mobile
The Now, The New, The Next in Mobile
Affiliate Summit988 views
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market... by Affiliate Summit
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...
CAN-SPAM Compliance, Your Reputation and Deliverability What Affiliate Market...
Affiliate Summit882 views
How Affiliate Industry Giants are Building for the Future by Affiliate Summit
How Affiliate Industry Giants are Building for the FutureHow Affiliate Industry Giants are Building for the Future
How Affiliate Industry Giants are Building for the Future
Affiliate Summit434 views

More from Affiliate Summit

How I Increased my Affiliate Program’s Revenue by 30% in One Month by
How I Increased my Affiliate Program’s Revenue by 30% in One MonthHow I Increased my Affiliate Program’s Revenue by 30% in One Month
How I Increased my Affiliate Program’s Revenue by 30% in One MonthAffiliate Summit
584 views17 slides
Paid Search and Paid Social Media Made Easy by
Paid Search and Paid Social Media Made EasyPaid Search and Paid Social Media Made Easy
Paid Search and Paid Social Media Made EasyAffiliate Summit
364 views73 slides
How to Audit and Improve Your Pinterest Business Strategy by
How to Audit and Improve Your Pinterest Business StrategyHow to Audit and Improve Your Pinterest Business Strategy
How to Audit and Improve Your Pinterest Business StrategyAffiliate Summit
356 views71 slides
The Path to $1M: How to Get to 7-Figures Commerce Revenue by
The Path to $1M: How to Get to 7-Figures Commerce RevenueThe Path to $1M: How to Get to 7-Figures Commerce Revenue
The Path to $1M: How to Get to 7-Figures Commerce RevenueAffiliate Summit
360 views14 slides
Utilizing Instagram Stories in your Influencer Campaigns by
Utilizing Instagram Stories in your Influencer CampaignsUtilizing Instagram Stories in your Influencer Campaigns
Utilizing Instagram Stories in your Influencer CampaignsAffiliate Summit
250 views9 slides
Paid Search and Paid Social Media Made Easy by
Paid Search and Paid Social Media Made EasyPaid Search and Paid Social Media Made Easy
Paid Search and Paid Social Media Made EasyAffiliate Summit
239 views33 slides

More from Affiliate Summit(20)

How I Increased my Affiliate Program’s Revenue by 30% in One Month by Affiliate Summit
How I Increased my Affiliate Program’s Revenue by 30% in One MonthHow I Increased my Affiliate Program’s Revenue by 30% in One Month
How I Increased my Affiliate Program’s Revenue by 30% in One Month
Affiliate Summit584 views
Paid Search and Paid Social Media Made Easy by Affiliate Summit
Paid Search and Paid Social Media Made EasyPaid Search and Paid Social Media Made Easy
Paid Search and Paid Social Media Made Easy
Affiliate Summit364 views
How to Audit and Improve Your Pinterest Business Strategy by Affiliate Summit
How to Audit and Improve Your Pinterest Business StrategyHow to Audit and Improve Your Pinterest Business Strategy
How to Audit and Improve Your Pinterest Business Strategy
Affiliate Summit356 views
The Path to $1M: How to Get to 7-Figures Commerce Revenue by Affiliate Summit
The Path to $1M: How to Get to 7-Figures Commerce RevenueThe Path to $1M: How to Get to 7-Figures Commerce Revenue
The Path to $1M: How to Get to 7-Figures Commerce Revenue
Affiliate Summit360 views
Utilizing Instagram Stories in your Influencer Campaigns by Affiliate Summit
Utilizing Instagram Stories in your Influencer CampaignsUtilizing Instagram Stories in your Influencer Campaigns
Utilizing Instagram Stories in your Influencer Campaigns
Affiliate Summit250 views
Paid Search and Paid Social Media Made Easy by Affiliate Summit
Paid Search and Paid Social Media Made EasyPaid Search and Paid Social Media Made Easy
Paid Search and Paid Social Media Made Easy
Affiliate Summit239 views
End of the Amazon Associates Era? What Might Be Coming Next by Affiliate Summit
End of the Amazon Associates Era? What Might Be Coming NextEnd of the Amazon Associates Era? What Might Be Coming Next
End of the Amazon Associates Era? What Might Be Coming Next
Affiliate Summit243 views
Knock it Out of the Park: 11 Pro Tips to Improve your Game! by Affiliate Summit
Knock it Out of the Park: 11 Pro Tips to Improve your Game!Knock it Out of the Park: 11 Pro Tips to Improve your Game!
Knock it Out of the Park: 11 Pro Tips to Improve your Game!
Affiliate Summit189 views
How to Lift Conversions by Over 130% Using Video by Affiliate Summit
How to Lift Conversions by Over 130% Using VideoHow to Lift Conversions by Over 130% Using Video
How to Lift Conversions by Over 130% Using Video
Affiliate Summit139 views
9 Software Tools Affiliate Managers Need to Grow the Program by Affiliate Summit
9 Software Tools Affiliate Managers Need to Grow the Program9 Software Tools Affiliate Managers Need to Grow the Program
9 Software Tools Affiliate Managers Need to Grow the Program
Affiliate Summit224 views
2020 Vision: Coupon Trends to Keep an Eye on this Year by Affiliate Summit
2020 Vision: Coupon Trends to Keep an Eye on this Year2020 Vision: Coupon Trends to Keep an Eye on this Year
2020 Vision: Coupon Trends to Keep an Eye on this Year
Affiliate Summit134 views
Conversion Over Clicks: Reevaluating Coupon Code Partners by Affiliate Summit
Conversion Over Clicks: Reevaluating Coupon Code PartnersConversion Over Clicks: Reevaluating Coupon Code Partners
Conversion Over Clicks: Reevaluating Coupon Code Partners
Affiliate Summit148 views
Working in a Niche Industry: How to Tackle the Acquisition of Mainstream Affi... by Affiliate Summit
Working in a Niche Industry: How to Tackle the Acquisition of Mainstream Affi...Working in a Niche Industry: How to Tackle the Acquisition of Mainstream Affi...
Working in a Niche Industry: How to Tackle the Acquisition of Mainstream Affi...
Affiliate Summit132 views
Get That Bread: Leverage Influence with Affiliate Marketing by Affiliate Summit
Get That Bread: Leverage Influence with Affiliate MarketingGet That Bread: Leverage Influence with Affiliate Marketing
Get That Bread: Leverage Influence with Affiliate Marketing
Affiliate Summit132 views
California's Tough New Privacy Law is Here. Are You Ready? by Affiliate Summit
California's Tough New Privacy Law is Here. Are You Ready?California's Tough New Privacy Law is Here. Are You Ready?
California's Tough New Privacy Law is Here. Are You Ready?
Affiliate Summit127 views
The 4 Simple But Hidden Keys All Top Affiliate Programs Laser Focus On by Affiliate Summit
The 4 Simple But Hidden Keys All Top Affiliate Programs Laser Focus OnThe 4 Simple But Hidden Keys All Top Affiliate Programs Laser Focus On
The 4 Simple But Hidden Keys All Top Affiliate Programs Laser Focus On
Affiliate Summit69 views
A Proven Blueprint for Scaling past 8 Figures in eCommerce by Affiliate Summit
A Proven Blueprint for Scaling past 8 Figures in eCommerceA Proven Blueprint for Scaling past 8 Figures in eCommerce
A Proven Blueprint for Scaling past 8 Figures in eCommerce
Affiliate Summit77 views

Recently uploaded

December 2023 - Meat on the Bones by
December 2023 - Meat on the BonesDecember 2023 - Meat on the Bones
December 2023 - Meat on the BonesNZSG
28 views11 slides
Accounts Class 12 project cash flow statement and ratio analysis by
Accounts Class 12 project cash flow statement and ratio analysisAccounts Class 12 project cash flow statement and ratio analysis
Accounts Class 12 project cash flow statement and ratio analysisJinendraPamecha
50 views42 slides
Basic of Air Ticketing & IATA Geography by
Basic of Air Ticketing & IATA GeographyBasic of Air Ticketing & IATA Geography
Basic of Air Ticketing & IATA GeographyMd Shaifullar Rabbi
69 views27 slides
Super Solar Mounting Solutions 20230509(1).pdf by
Super Solar Mounting Solutions 20230509(1).pdfSuper Solar Mounting Solutions 20230509(1).pdf
Super Solar Mounting Solutions 20230509(1).pdfcarrie55bradshaw
12 views25 slides
Assignment 4: Reporting to Management.pptx by
Assignment 4: Reporting to Management.pptxAssignment 4: Reporting to Management.pptx
Assignment 4: Reporting to Management.pptxBethanyAline
21 views20 slides
The Truth About Customer Journey Mapping by
The Truth About Customer Journey MappingThe Truth About Customer Journey Mapping
The Truth About Customer Journey MappingAggregage
117 views39 slides

Recently uploaded(20)

December 2023 - Meat on the Bones by NZSG
December 2023 - Meat on the BonesDecember 2023 - Meat on the Bones
December 2023 - Meat on the Bones
NZSG28 views
Accounts Class 12 project cash flow statement and ratio analysis by JinendraPamecha
Accounts Class 12 project cash flow statement and ratio analysisAccounts Class 12 project cash flow statement and ratio analysis
Accounts Class 12 project cash flow statement and ratio analysis
JinendraPamecha50 views
Super Solar Mounting Solutions 20230509(1).pdf by carrie55bradshaw
Super Solar Mounting Solutions 20230509(1).pdfSuper Solar Mounting Solutions 20230509(1).pdf
Super Solar Mounting Solutions 20230509(1).pdf
carrie55bradshaw12 views
Assignment 4: Reporting to Management.pptx by BethanyAline
Assignment 4: Reporting to Management.pptxAssignment 4: Reporting to Management.pptx
Assignment 4: Reporting to Management.pptx
BethanyAline21 views
The Truth About Customer Journey Mapping by Aggregage
The Truth About Customer Journey MappingThe Truth About Customer Journey Mapping
The Truth About Customer Journey Mapping
Aggregage117 views
Learning from Failure_ Lessons from Failed Startups.pptx by Codeventures
Learning from Failure_ Lessons from Failed Startups.pptxLearning from Failure_ Lessons from Failed Startups.pptx
Learning from Failure_ Lessons from Failed Startups.pptx
Codeventures12 views
The Talent Management Navigator Performance Management by Seta Wicaksana
The Talent Management Navigator Performance ManagementThe Talent Management Navigator Performance Management
The Talent Management Navigator Performance Management
Seta Wicaksana35 views
Pitch Deck Teardown: Scalestack's $1M AI sales tech Seed deck by HajeJanKamps
Pitch Deck Teardown: Scalestack's $1M AI sales tech Seed deckPitch Deck Teardown: Scalestack's $1M AI sales tech Seed deck
Pitch Deck Teardown: Scalestack's $1M AI sales tech Seed deck
HajeJanKamps663 views
On the Concept of Discovery Power of Enterprise Modeling Languages and its Re... by Ilia Bider
On the Concept of Discovery Power of Enterprise Modeling Languages and its Re...On the Concept of Discovery Power of Enterprise Modeling Languages and its Re...
On the Concept of Discovery Power of Enterprise Modeling Languages and its Re...
Ilia Bider15 views
See the new MTN tariffs effected November 28, 2023 by Kweku Zurek
See the new MTN tariffs effected November 28, 2023See the new MTN tariffs effected November 28, 2023
See the new MTN tariffs effected November 28, 2023
Kweku Zurek29.5K views
davood_keshavarz_david_keshavarz_criminal_conviction_prison_sentence_judgemen... by morshedislam3
davood_keshavarz_david_keshavarz_criminal_conviction_prison_sentence_judgemen...davood_keshavarz_david_keshavarz_criminal_conviction_prison_sentence_judgemen...
davood_keshavarz_david_keshavarz_criminal_conviction_prison_sentence_judgemen...
morshedislam318 views
Imports Next Level.pdf by Bloomerang
Imports Next Level.pdfImports Next Level.pdf
Imports Next Level.pdf
Bloomerang150 views
2023 Photo Contest.pptx by culhama
2023 Photo Contest.pptx2023 Photo Contest.pptx
2023 Photo Contest.pptx
culhama35 views
Nevigating Sucess.pdf by TEWMAGAZINE
Nevigating Sucess.pdfNevigating Sucess.pdf
Nevigating Sucess.pdf
TEWMAGAZINE26 views
Monthly Social Media Update November 2023 copy.pptx by Andy Lambert
Monthly Social Media Update November 2023 copy.pptxMonthly Social Media Update November 2023 copy.pptx
Monthly Social Media Update November 2023 copy.pptx
Andy Lambert33 views

Power in Numbers: Insight Into State AG/FTC Collaborations

  • 1. www.ifrahlaw.comP (202) 524-4145 / Power in Numbers: Insight Into State AG/FTC Collaborations Affiliate Summit East Conference: August 1, 2016 Rachel Hirsch, Senior Associate Lori Kalani, Co-Chair State AG Group Michael C. Turpen, Shareholder
  • 3. www.ifrahlaw.com The FTC’s Mission P (202) 524-4145 / FTC’s “Bread and Butter” Mission Falls Primarily Into Three Categories: 1. Fighting Fraud 2. Stopping Deceptive Advertising 3. Protecting Consumer Privacy
  • 4. www.ifrahlaw.com What’s In The FTC’s Arsenal? P (202) 524-4145 / The FTC Enforces Consumer Protection Statutes, Including: Fair Credit Reporting Act Fair Debt Collection Practices Act Federal Trade Commission Act Gramm-Leach-Bliley Act Lanham Trade-Mark Act CAN-SPAM Act Telemarketing And Consumer Fraud And Abuse Act Truth in Lending Act
  • 5. www.ifrahlaw.com The FTC’s Most Powerful Weapon P (202) 524-4145 / The Most Powerful Weapon The FTC Uses To Combat Consumer Fraud Section 5(a) Of The Federal Trade Commission Act Prohibits “Unfair Or Deceptive Acts Or Practices In Or Affecting Commerce”
  • 6. www.ifrahlaw.com What Constitutes “Unfair” Acts Or Practices? P (202) 524-4145 / An Act Or Practice Is “Unfair” Where It • Causes Or Is Likely To Cause Substantial Injury To Consumers; • Cannot Be Reasonably Avoided By Consumers; And • Is Not Outweighed By Countervailing Benefits To Consumers Or To Competition. Public Policy (As Established By Statute), Regulation, Or Judicial Decisions May Be Considered.
  • 7. www.ifrahlaw.com What Constitutes “Deceptive” Acts Or Practices? P (202) 524-4145 / An Act Or Practice Is Deceptive Where • A Representation, Omission, Or Practice Misleads Or Is Likely To Mislead The Consumer; • A Consumer’s Interpretation Of the Representation, Omission, Or Practice Is Considered Reasonable Under The Circumstances; And • The Misleading Representation, Omission, Or Practice Is Material.
  • 8. www.ifrahlaw.com FTC Act – Enforcement P (202) 524-4145 / Statutory Right To Obtain Temporary Restraining Order & Preliminary Injunctions Against Any Person, Corporation, Or Partnership That Is Violating/About To Violate Any Law Enforceable By The FTC If The FTC Believes It To Be In the Public Interest.  Requires Standard Balancing Of Equities, Consideration of FTC’s Likelihood of Success.  Permits Courts To Exercise All Ancillary Equitable Powers In Action For An Injunction, Including: • Asset Freezes • Appointment of Receivers • Restitution And Other Relief
  • 9. www.ifrahlaw.com “Mini-FTC Act” P (202) 524-4145 / Each Of The 50 States Has Its Own Version Of the FTC Act – Collectively Known As The “Little Acts.”  Generally Tailored To Meet Specific Policy Preferences Of Each Particular State.  Usually Applied To State-Specific Matters, While FTC Act Used To Regulate Broader Consumer Protection Issues On National Scale.
  • 10. www.ifrahlaw.com Role of State Attorney Generals P (202) 524-4145 /  Moving Force Behind All Multi-State Investigations  Akin To Managing Partner Of Law Firm  Enforcement Arm Of State For Consumer Protection  Broad Discretion To Pursue Matters Of “Public Interest”
  • 11. www.ifrahlaw.com Election Vs. Appointment Of AGs P (202) 524-4145 /  Popularly Elected In 43 States (Including CA), Guam, D.C.  Appointed By Governor In 5 States (AK, HI, NH, NJ, WY), 4 Jurisdictions (American Samoa, Northern Mariana Islands, Puerto Rico, Virgin Islands)  Selected By Secret Ballot Of Legislature (ME)  Selected By State Supreme Court (TN)
  • 12. www.ifrahlaw.com National Association Of Attorney Generals (NAAG) P (202) 524-4145 /  Mission: “To Facilitate Interaction Among Attorneys General As Peers And To Facilitate The Enhanced Performance Of Attorneys General And Their Staffs.”  Membership: Attorneys General Of The 56 States And Territories  Key Projects: • Antitrust • Bankruptcy • Civil Rights • Consumer Protection • Criminal Law • Cybercrime • Environment • Legislation • Medicaid Fraud • Supreme Court • Tobacco • Violence Against Women
  • 13. www.ifrahlaw.com FTC’s Joint Mission With State AGs P (202) 524-4145 /  Joint Investigations And Enforcement • Robocalls • Timeshare Resale Fraud • Weight Loss Scams • Mortgage Rescue Scams • Business Opportunity Schemes  Education And Outreach • National Consumer Protection Week • Military Consumer Protection Week  Sharing Consumer Complaints • Access To FTC Sentinel Database  Holding Common Ground Events And Working Together Through Task Forces And Working Groups  Charities
  • 14. www.ifrahlaw.com Triggers For Investigation P (202) 524-4145 / Consumer Complaints Industry-Wide Sweeps Competitors Monitoring/ “Surf” Days Media Stories
  • 15. www.ifrahlaw.com Why The Rise In Collaborations? P (202) 524-4145 / POWER IN NUMBERS!  Availability of Civil Penalties Under State Law  Information Sharing  Broad Investigative Authority  Pooling of Resources
  • 16. www.ifrahlaw.com FTC/STATE AG COLLABORATIONS – CASE STUDY #1 P (202) 524-4145 /
  • 17. www.ifrahlaw.com FTC/STATE AG COLLABORATIONS – CASE STUDY #2 P (202) 524-4145 /
  • 18. www.ifrahlaw.com FTC/STATE AG COLLABORATIONS – CASE STUDY #3 P (202) 524-4145 /
  • 19. www.ifrahlaw.com FTC/STATE AG COLLABORATIONS – CASE STUDY # P (202) 524-4145 /
  • 20. www.ifrahlaw.com FTC/STATE AG COLLABORATIONS – CASE STUDY #5 P (202) 524-4145 /
  • 21. www.ifrahlaw.com Lessons From Recent Enforcement Actions P (202) 524-4145 / Respond Re-Evaluate Train Monitor Maintain
  • 22. www.ifrahlaw.com When A CID Issues P (202) 524-4145 /  Call A Lawyer.  Preserve Your Documents. • When You Receive A CID/Subpoena, All Relevant Documents And Electronic Information Must Be Preserved Through A Legal Hold. • Make A Concerted Effort To Identify Key Employees And Systems Using Storing Information. • Have Lawyers Draft a Legal Hold That Clearly Defines The Information That Must Be Preserved. • Hold Should Be Issued To A Carefully Identified Group of Employees That May Have Knowledge Of The Potentially Responsive Information. • Revisit Hold On A Regular Basis. Failure To Implement An Adequate And Timely Legal Hold May Result In Sanctions.
  • 23. www.ifrahlaw.com Navigating The CID Response P (202) 524-4145 / Read Thoroughly Preserve Immediately Negotiate Carefully Maintain Confidentiality Produce Cautiously Choose Wisely
  • 24. www.ifrahlaw.com Getting To Settlement P (202) 524-4145 / Pre/Post-Litigation Timing Monetary/Injunctive Relief Settlement Documents
  • 25. www.ifrahlaw.comP (202) 524-4145 / Rachel Hirsch rhirsch@ifrahlaw.com Twitter: @TheRealMsHirsch Blog: www.ftcbeat.com Lori Kalani lkalani@cozen.com Twitter: @lorikalani Michael C. Turpen Mturpen@riggsabney.com Twitter: @MikeCTurpen Questions?