2H 2015 Quick Links, Part 7 (Marketing, Advertising, E-Commerce)

Photo credit: 3D Quick Link Crossword // ShutterStock

Photo credit: 3D Quick Link Crossword // ShutterStock


* Jezebel: The Big Bad World of Products Celebrities Promote on Instagram. Related blog post.

* NY Times: Cool Influencers With Big Followings Get Picky About Their Endorsements

* NY Times:

Since signing with Brooks on Jan. 1, 2014, Symmonds has been asked by American officials to remove Brooks gear, even while having morning coffee at the United States team hotel at the 2014 world indoor championships in Poland, he said. Surely, coffee is not an official team function, said Symmonds, who was formerly sponsored by Nike.

U.S.A. Track & Field “has confiscated advertising space that I own,” Symmonds, 31, said. He said the federation “frequently uses bullying tactics to force athletes to do what they want, even when they have no legal right to do that.”

* Underwhelming settlement in Subway “footlong” case: $525k to lawyers, $1K incentives, new quality control steps

* Wendy Davis: Euro-Pro Should Stop Bragging About 5-Star Ratings, BBB Says

* NY Times: With Technology, Avoiding Both Ads and the Blockers

* Wikipedia blocks hundreds more accounts for undisclosed paid advocacy. Related article.

* Pulaski & Middleman, LLC v. Google, Inc., 2015 WL 5515617 (9th Cir. Sept. 21, 2015). Under CA’s false advertising statutes, restitution can be pursued on a class basis even if the restitution awards will require individualized determinations.

* Slate: The FDA Will Not Tolerate Eggless Sandwich Spreads That Purport to Be “Just Mayo”

Quartz: There is literally a US government conspiracy against vegan mayo

Just Mayo Wins Big Against US Government

* WSJ: Marketers May Be Falling Out of Love With Product Placement

* Search Engine Land: After FTC Guidelines, Ad Demarcations In Search Engine Results Have Become More Muted

* Cracked: 7 Ways Restaurants Screw You Over (With Science)

* AdWeek: Hotels.com Buried a Giveaway in the Fine Print of a TV Ad to Reward People Who Paused It

* Cracked: 5 Huge Marketing Campaigns That Were Complete Catastrophes

E-Commerce and Clickthroughs

* NY Times: Hotels Fight Back Against Sites Like Expedia and Priceline

* I.B. v. Facebook, 2015 WL 1056178 (N.D. Cal. March 10, 2015). Regarding minors’ purchases using Facebook credits beyond what their parents authorized, the court certified a class, for declaratory and injunctive relief only, consisting of:

All Facebook users who are or were minor children according to Facebook’s own records for the four years preceding the date on which the original complaint was filed through the date on which a class is certified (“the Minor Class”). Within the Minor Class is a subclass of Minors from whose Facebook accounts Facebook Credits were purchased. (“the Minor Purchasing Subclass”).

* The Recorder: Auto-Renewal Suits Rain Down on Consumer Tech Companies. “Since late 2013, two Southern California plaintiffs lawyers have systematically targeted Google, Apple, Spotify, Lifelock, Blue Apron and other companies with subscription-based services under a 2010 California statute that prohibits automatic renewal charges without affirmative consent.”

* Law.com: Share Economy On Edge Over Worker Status

* Reuters: “State legislators in Ohio and Florida are moving ahead with regulations governing Uber and other ride services that would designate all drivers as independent contractors, bolstering a critical but much-disputed aspect of Uber’s business model.

The states would join North Carolina, Arkansas, and Indiana in requiring the contractor designation as part of new laws governing so-called transportation network companies, a Reuters review of state legislation showed.”

* Tagupa v. VIPdesk, Inc., 2015 WL 5116943 (D. Hawaii Aug. 28, 2015) and 2015 WL 5472898 (D. Hawaii Sept. 17, 2015). It’s not a good idea to ask hourly employees to “volunteer” to write additional blog posts “in your own free time.”

* Kash Hill: I created a fake business and bought it an amazing online reputation

* Loewen v. Lyft (N.D. Cal. Sept. 15, 2015):

Plaintiffs also argue that Defendants should have required users to click “I agree” to the arbitration provision specifically, in addition to the TOS as a whole, to eliminate any surprise. However, Plaintiffs do not cite any case requiring a separate assent to an arbitration provision in a click-through agreement, and the Court declines to create such a requirement here….unilateral modification provisions “are not substantively unconscionable because they are always subject to the limits ‘imposed by the covenant of good faith and fair dealing implied in every contract.’”

* Ranazzi v. Amazon.com, Inc., 2015-Ohio-4411 (Ohio Ct. App. Oct. 23, 2015).

Multiple courts have held that clicking is an acceptable method to manifest assent to the terms of an agreement….Further, courts have upheld such agreements where the disputed terms were contained in a hyperlink….This is so even where the user has failed to actually review the terms of use prior to manifesting assent…Upon review of the facts of this case and the relevant case law, we find that appellant, by clicking “I agree” on Intuit’s license agreement or by registering for an Amazon account and placing orders, accepted the terms of appellees’ agreements, including the arbitration provisions.

* Pearls Before Swine on EULAs.