Consumer Protection

Governmental Investigations and Regulatory Litigation
In today’s competitive environment, attempts to influence customers are taking place in many platforms – whether on the Internet, in blogs, in social media outlets, in “traditional” media like broadcast or print, or even through word-of-mouth. Yet, due to the financial collapse in 2008 and the growing cynicism of business self-regulation, today’s environment is pro-consumer and pro-enforcement, and the desire for regulation and law enforcement is at a peak. As a result, business policies and practices concerning advertising, marketing, privacy, and other consumer protection issues are under heightened scrutiny.

Thus, issues relating to deceptive or unfair advertising, the appropriateness of marketing practices, privacy of consumer personal and health information, and compliance with federal and state consumer and trade regulations necessarily must capture the attention of senior management.

The Federal Trade Commission is the governmental agency at the forefront of regulating marketing practices and investigating allegations of unfair or deceptive advertising. Its jurisdiction is wide-ranging, and its civil enforcement muscle is extensive, ranging from monetary penalties to equitable injunctions, including disgorgement and bans. Individual liability is also common. And, the FTC can refer matters to the Department of Justice for criminal prosecution. Industries impacted by the FTC touch every industry sector of the economy, from e-commerce and technology, to financial services, to health care, to retail, to food, and to consumer products and services.

The consumer protection laws and regulations involving the FTC are broad, and include: 

• Spam and commercial e-mailing
• Solicitation on electronic mail, through facsimile, and by telephone
• Comparative advertising
• Substantiation of advertising claims
• Endorsement and testimonials in advertising
• Pricing
• Use of the terms "free" and "rebate"
• Infomercials
• Guarantees and warranties
• "Made in the U.S.A." label
• Multi-level marketing
• Contests, sweepstakes, and games of chance
• Consumer credit (including credit reporting, credit billing, and truth-in-lending)
• Debt collection
• Franchise and business opportunities
• Telemarketing
• Mail orders
• Group-specific target marketing (e.g., children, senior citizens, Hispanic citizens)
• Advertising and consumer regulations in specific industries (e.g., food, alcohol,
  medical products, funeral, jewelry, motor vehicles, retail food stores, drugs)
• Labeling (e.g., clothing, appliances, cosmetics, drugs, food, furs,
  hazardous substances, tires)
• Data security and identity theft
• Privacy

Regulations and investigations involving consumer protection do not stop at the federal level, however. Each state, through its attorney general or department of consumer affairs, enforces unfair trade practice laws through its so-called “Little FTC Acts,” which enable an attorney general or state official to investigate allegations of deceptive or unfair practices, initiate lawsuits or other state proceedings, enter into settlements, consent decrees, or assurances of voluntary compliance. Indeed, such law enforcement actions can take place in concert with the FTC or other law enforcement agencies.

Manatt's Experience Before the Federal Trade Commission
No other law firm in the country has handled as many FTC and state attorneys general investigations and enforcement actions as Manatt over the last few years. We have defended many clients in response to highly sensitive Civil Investigative Demands and other inquiries, and have an excellent record of resolving such actions amicably with the Commission, by either convincing the Commission that enforcement proceedings should not be initiated or negotiating favorable settlements on our client’s behalf. In the few instances where we have not been able to negotiate a favorable settlement, our litigation team has been effective in mounting a strong defense. In fact, Manatt attorneys have served as defense counsel on some of the highest-profile FTC cases in recent years.

In addition to our strong substantive knowledge of the consumer protection laws, we have a keen knowledge of how the Commission works and the factors it considers in deciding whether to initiate enforcement. Many former Manatt attorneys currently work at the Commission, and within the firm, Manatt has attorneys who previously served at the Commission. 

State Attorneys General Experience
The Manatt team shares decades of experience representing clients in proceedings brought by individual and multistate attorneys general. Similar to our FTC experience, our professionals are successful in negotiating reasonable settlements and in persuading state attorneys general not to file formal actions against our clients. We have substantial relations with state AG offices nationally through our connections with the National Association of Attorneys General (NAAG). In fact, one of our attorneys was awarded the NAAG’s Marvin Award, which is given, at most, to five assistant attorneys general per year for outstanding leadership and experience.