Covering Your Ads : Advertising & Marketing Lawyer & Attorney : Sheppard Mullin Law Firm : Entertainment, Sports, Publicity

By Craig Cardon, Brian Anderson, Rachel Hudson.
 

On January 5, 2011, the Third Circuit issued its decision in New Jersey Retail Merchants Association v. Sidamon-Eristoff, Case No. 10-4551 (3d Cir. Jan. 5, 2012). The appellate court affirmed the decision of the District Court partially granting and partially denying a motion for a preliminary injunction of enforcement of New Jersey's unclaimed property law as applied to gift cards or stored value cards ("SVCs").

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The end of the collective bargaining agreement between a professional sports league and the players association that represents the athletes triggers a series of dominos: The players go on strike, the league implements a lock-out of the players, the parties meet over the course of several weeks to try to negotiate a new deal, both sides posture (with the league cautioning that pre-season and regular season games will be cancelled and the players association threatening to decertify as a union if a new agreement cannot be reached), the league files an unfair labor practice complaint with the National Labor Relations Board coupled with a declaratory judgment action in U.S. district court seeking a ruling that the lock-out is a legitimate negotiation tactic under the labor laws, the union decertifies and files its own lawsuit claiming that the league's lockout constitutes price-fixing and an illegal group boycott in violation of the antitrust laws, and fans brace for lost games.

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On January 1, 2012, the California Transparency in Supply Chains Act of 2010 will become effective. This legislation will require every large retailer and manufacturer doing business in California to publicly disclose whether it has taken specified actions to eliminate slavery and human trafficking from its product supply chain. The Act does not require a company to make any effort to eliminate slavery or human trafficking, but only to disclose the extent, if any, to which it has taken the actions listed in the Act. The impact of the Act ultimately will depend on whether consumers, investors and activists use the required disclosure to pressure companies to monitor and eliminate abuses in their supply chains. California Civil Code Section 1714.43(a).
 

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In Feder v. Williams-Sonoma Stores, Inc, the United States District Court for the District of New Jersey joined the New Jersey Superior Court in weighing in on the issue of whether a retailer violates consumer privacy state law by requesting a customer's zip code at the point of purchase.  Feder was brought by the same plaintiff’s lawyers and with claims similar to those in the state court case Imbert v. Harmon Stores, Inc.(Bed, Bath & Beyond). Imbert was decided last month, but without any written decision, and permitted that case to proceed past the pleading stage. The District Court in Feder, however, issued the first written opinion under the New Jersey statutes, finding that allegations that a zip code was verbally requested could not support a claim under New Jersey law.
 

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A New Jersey state trial court has initially weighed in on the issue of whether a retailer violates state law by requesting a customer’s zip code at the point of purchase.  In a case fashioned after the California Supreme Court's decision in Pineda v. Williams-Sonoma, 51 Cal.4th 524 (Feb. 10, 2011), New Jersey Superior Court Judge Stephan Hansbury has denied a motion to dismiss brought by Harmon Stores, Inc. (Bed, Bath & Beyond), finding that the plaintiff Robert Imbert adequately pled a claim for violation of New Jersey's Truth in Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:11-17 (“TCCWNA”).   The Court's ruling allows plaintiff to proceed beyond this initial stage, but no liability has been found.
 

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Advertisers are constantly looking for new ways to obtain more information from and about online consumers in an effort to provide a more enriching and satisfying online experience for the consumer.  At the same time, consumers are becoming more and more knowledgeable about the online collection of their information and are finding new ways to prevent it. As technology evolves, advertisers are seeking to strike a balance between their business objectives and the rights and desires of the modern consumer.  What if an advertiser were able to collect weeks, or even months of personal data, including a consumer’s location, time zone, photographs, text from blogs, shopping cart contents, emails and a history of web pages visited, all without the consumer giving consent? Would the collection of such information merely provide for a significantly enriched user experience, or does it present a substantial invasion of privacy? The World Privacy Forum fears the latter, and along with various class action plaintiffs’ lawyers, points to the increasing use of HTML5 as a data collection vehicle as the source of grave concern.

This article by Ben Mulcahy and Gina Ilardi was originally published in the Metropolitan Corporate Counsel. To read the article please click here, or visit the Metropolitan Corporate Counsel website.

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Closely watched class action lawsuits by former student athletes against the National Collegiate Athletic Association (“NCAA”), its licensing arm, the Collegiate Licensing Company (“CLC”), and the popular video game maker, Electronic Arts, Inc. (“EA”) will proceed following a May 2, 2011 decision by Judge Claudia Wilken of the United States District Court for the Northern District of California. See In re NCAA Student-Athlete Name & Likeness Licensing Litigation Case No. 4:09-cv-01967-CW (N.D. Cal. May 2, 2001) (the “May 2 Order”).

The stakes in the NCAA Student-Athlete Name & Likeness Licensing Litigation are high. If the student athlete plaintiffs are successful, the NCAA, as well as its member conferences and universities, could face significant liability, and the NCAA would need to substantially change the way in which it approaches its licensing efforts and student-athlete relationships. The resolution of the licensing and First Amendment issues also has the potential to cause significant repercussions across the entertainment industry, including the motion picture industry, as courts grapple with determining the breadth of First Amendment protection in an age of realistic computer generated depictions that could arguably be mistaken for the real thing.

This article by Daniel Brown was originally published in the Sports Litigation Alert. To read the article please click here, or visit the Sports Litigation Alert website.

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It’s that time of year again. College campuses around the country are buzzing, co-workers are whispering about office pools, and “bracketology” is the popular science of the day. The NCAA men’s basketball tournament season, aka “March Madness,” has begun. To tap into the vast media audiences generated by the NCAA Tournament (the “Tournament”), ambush marketers have started populating the market with basketball-themed promotional materials. There is little doubt that ambush marketers can legally draw on generic basketball symbols and complimentary imagery to tie into the excitement surrounding the Tournament without exposing themselves to a meaningful risk of liability to the NCAA as the Tournament operator. But what about using the phrase “March Madness”?
 

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On December 21, 2010, the FCC approved controversial net neutrality rules in a party-line vote. Democratic Commissioners Copps and Clyburn joined Chairman Genachowski in approving the Order, despite concerns that it did not go far enough. Republican Commissioners McDowell and Baker wrote lengthy dissents, arguing that the FCC had stepped far beyond its regulatory authority in approving Internet regulations.
 

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