2H 2016 Quick Links, Part 10 (Marketing, Uber, Airbnb, Taxes & More)


* Danny Sullivan: Facebook’s racial targeting isn’t new, bad or always illegal despite renewed attention

* In re Sling Media Slingbox Advertising Litigation (SDNY Aug. 12, 2016). Sling isn’t liable to consumers for adding its own ads to recorded videos without telling buyers that would happen.

* AdWeek: AdBlock Plus Is Launching a Marketplace for ‘Acceptable’ Ads, but Will It Just Infuriate Everyone? Also, NY Times: Adblock Plus, Created to Protect Users From Ads, Instead Opens the Door

* Digiday: Breitbart declares war on Kellogg’s after brand pulls advertising

* Bloomberg: “With the right guidance, he said, almost anyone could Instagram professionally. To prove it, he made me an offer: He’d help me become an influencer myself.”

* Bloomberg: FTC to Crack Down on Paid Celebrity Posts That Aren’t Clear Ads. Instagrammers, the FTC is COMING FOR YOU. More from TINA.org: EXPOSURE WITHOUT DISCLOSURE: CASHING IN WITH THE KARDASHIANS

* New York Law Journal: Schneiderman Announces More Astroturfing Settlements

* WSJ: Incredulous Judge Tosses Lawsuit Accusing Starbucks of Putting Too Much Ice in Cold Drinks. See Forouzesh v. Starbucks Corp., 2:16-cv-03830-PA-AGR (C.D. Cal. Aug. 19, 2016)

* Wurtzberger v. Kentucky Fried Chicken complaint. Allegations that the KFC “Family Fill Up meal” promotional photos show an overflowing bucket of chicken, while the actual product only contains a half-bucket of chicken. (Raising the obvious: maybe KFC should use a smaller bucket?)

* Amanda Scardamaglia & Angela Daly, Google, Online Search and Consumer Confusion in Australia, (2016) 42(3) International Journal of Law and Information Technology 203:

Australian consumers lack understanding about the operation and origin of the different elements of the Google search results page. They are best able to understand and identify ads, as compared to their understanding and identification of organic results and results from subsidiary services. There is particular confusion in relation to the operation and origin of Google’s Shopping service.

* Search Engine Land: Why are payday loan ads still showing on Google after the ban?

* Maureen K. Ohlhausen, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp, 10 J. Comp. L. & Econ. 1 (2016)

* CNN: Russian ‘methbot’ fraud steals $180 million in online ads

* TINA.org’s Worst List: 6 Class-Action Settlements That Missed the Mark

* TPW Management, LLC v. Yelp Inc., 2016 WL 6216879 (N.D. Cal. Oct. 25, 2016). No preliminary injunction against Yelp for the phrase “We Know Just the Place”

* In re Lenovo Adware Litigation, 2016 WL 6277245 (N.D. Cal. Oct. 27, 2016). Certifying two classes of buyers (indirect purchasers and CA purchasers) against Lenovo for pre-installing Superfish’s VisualDiscovery software.

* Adweek: How AT&T Benefited From Getting Out of the Way of Content Creators

* Vox: Why most cereal brands are discontinued within 5 years


* XYZ Two Way Radio Service, Inc. v. Uber Technologies, Inc., 2016 WL 5854224 (E.D.N.Y. Oct. 6, 2016):

No doubt, these statements are intended to convey the impression that Uber takes the safety of its passengers seriously. But they do so in terms that clearly fall within one or more of the accepted definitions of puffery. The overall tone is boastful and self-congratulatory. Many of the statements are couched in aspirational terms—“committed to,” “aim to,” “believe deeply”—that cannot be proven true or false….Others are vague and hyperbolic; if Uber literally set the “strictest safety standards possible” at the outset, it could not “improve them every day.” In sum, the Court concludes that the challenged statements cannot reasonably be understood as specific representations of objective facts.

* The Verge: How Uber secretly investigated its legal foes — and got caught

* NY Times: How Uber Drivers Decide How Long to Work


* MediaPost: Airbnb Drops Challenge To New York Advertising Law:

“Home sharing company Airbnb has dropped its attempt to block a New York state law that imposes fines of up to $7,500 on people who post ads for illegal rentals. Airbnb’s move came after New York State Attorney General Eric Schneiderman agreed that he wouldn’t seek to hold Airbnb liable for violations of the law….”

* NY Times: Airbnb Adopts Rules to Fight Discrimination by Its Hosts

* S.F. Chronicle: As city lowers boom, Airbnb and rivals thrive

* Cracked: 5 Apps That Have Rampant Discrimination Built In

* FTC: The “Sharing” Economy: Issues Facing Platforms, Participants & Regulators


* Fortune: The Ugly Unethical Underside of Silicon Valley. Quoting Dave McClure as saying: “You know the saying ‘There’s a fine line between genius and insanity’? There’s probably a fine line between entrepreneurship and criminality.””

* Law.com: After Feds Drop FedEx Case, Watchers Say More Companies Might Gamble on Trials

* NY Times: Amazon Is Quietly Eliminating List Prices

* Bloomberg: Hampton Creek Ran Undercover Project to Buy Up Its Own Vegan Mayo

* NY Times: How Scalpers Make Their Millions With ‘Hamilton’

* Congress enacted the BOTS Act to suppress technological trickery in the distribution of event tickets.

* Rory Van Loo, The Corporation as Courthouse, 33 Yale J. REG. 547 (2016). From the introduction:

Although legal scholars have written thousands of pages about arbitration in recent years, they have largely ignored businesses’ internal processes for resolving consumer disputes.7 Yet these unexamined processes are pushing the bounds of dispute resolution beyond anything seen in courts or arbitration. The result sometimes conflicts with traditional notions of justice. For example, Bank of America recently developed big data software that considers the wealth of family members in deciding how to handle a customer’s request for a fee waiver.8 At the same time, new internal business processes are advancing societal goals in numerous ways, such as by making it ever more possible to obtain low-cost redress that preserves the relationship between the parties. Rolled out over hundreds of millions of disputes each year, the design of companies’ internal processes can influence efficiency, the distribution of wealth, and fairness on a massive scale….

In this largely private order, the corporation plays three key dispute resolution roles. The first is the customer service department handling disputes about its own products….The second main dispute resolution role is largely absent from the literature: when the corporation serves as a judge for disputes between its own consumers and independent, third-party sellers….The corporation plays a third key dispute resolution role as a reputation-based enforcement mechanism….


* NY Times: San Francisco Considers Tax on Tech Companies to Pay for Boom’s Downside

* Techdirt: 46 California Cities Join Rush To Impose ‘Netflix Tax’

European Union

* Reuters: “Germany’s Justice Minister says he believes Facebook Inc. should be treated like a media company rather than a technology platform, suggesting he favors moves to make social media groups criminally liable for failing to remove hate speech.”

* NY Times: Europe Presses American Tech Companies to Tackle Hate Speech. Also, Facebook Runs Up Against German Hate Speech Lawsb

* NY Times: Google, Trying to Endear Itself to Europe, Spreads $450 Million Around

* Washington Post: 7 reasons why some Europeans hate the E.U.


* Ars Technica: TOS agreements require giving up first born—and users gladly consent

* Wired: The EPA’s Fuel Efficiency Testing May Not Work. Like, at All. Government-mandated disclosures are expensive to produce but are supposed to be justified by being trustworthy for consumers. If they aren’t, that’s bad news for everyone.

* Oddee: 9 Weirdest Tattoo-Related Offers. My 2005 contracts exam and sample answer.