Advertising Law Tool Kit - Tenth Edition | 2022

Venable / 45 • Areas where businesses interact directly with consumers are the most frequent targets of class action litigants. Be especially vigilant about billing, marketing, product fulfillment, website, and customer service practices. Similarly, unforeseeable lapses such as data breaches and billing errors are also ripe targets for class action challenges. Areas that are particularly hot for class actions are free trials/offers and other negative option programs, health benefit and healthy inference claims, lack of substantiation claims, sales pricing and promotion, non-functional slack fill claims, Made in USA claims, and “all natural” and/or organic claims. • Periodically review telephone marketing and call center practices to ensure they are compliant with the Telephone Consumer Protection Act (TCPA), the Telemarketing Sales Rule (TSR), and state eavesdropping/privacy laws, especially when any part of the function is outsourced to a third-party vendor. • The Supreme Court has held that arbitration provisions and class action waivers in contracts are enforceable, barring would-be class action plaintiffs from filing lawsuits, regardless of state law to the contrary. Consider mitigating litigation risk by including a properly drafted mandatory arbitration provision or class action waiver on the checkout page of your website for internet sales, in your website terms and conditions, and in product retail boxes. Enforceability of an arbitration agreement and/or class action waiver turns on proper notice and unambiguous manifestation of customer assent. • Track and resolve consumer complaints, including those lodged with the BBB and state AGs, through your customer service programs and by monitoring social media. Know what is being said about your product online. Consult counsel regarding any alarming trends. Do not ignore pre-litigation demand letters from purported class action plaintiffs. Many class action matters can be resolved quickly and inexpensively with help from experienced class action counsel.