Must Consumer Suffer Adverse Consequence in Order to Sue under TCCWNA?

Stephen M. Orlofsky and Ethan M. Simon

The Third Circuit certified to the New Jersey Supreme Court two questions about the interplay between New Jersey’s furniture delivery regulations and the state’s Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA). In Spade v. Select Comfort Corp., — A.3d —, 2018 WL 1790394 (N.J. Apr. 16, 2018), the court answered. In so doing, it expanded the reach of TCCWNA, which is intended to “prevent deceptive practices in consumer contracts.” Id. at *7. The act prohibits merchants from offering and entering into written contracts with consumers that include “any provision that violates any clearly established right of a consumer or responsibility of a seller … as established by State or Federal law at the time the offer is made or the consumer contract is signed.” Id. Continue reading “Must Consumer Suffer Adverse Consequence in Order to Sue under TCCWNA?”

Loot Boxes in Videogames: Gambling by Any Other Name?

Jeffrey N. Rosenthal and Ethan M. Simon

To quote classicist author Edith Hamilton from her book The Roman Way to Western Civilization, “The comedy of each age holds up a mirror to the people of that age, a mirror that is unique.”  Nowhere is that statement truer than when discussing the comedic genius of the hit animated television series South Park, now approaching its twenty-second season.

In its 2006 Primetime Emmy Award-winning episode “Make Love, Not Warcraft,” South Park delved into video gamers’ obsession with the wildly-popular PC game World of Warcraft.  One of the show’s plotlines focused on a player whose in-game character had become so powerful the game’s developer had to devise a way to stop him.  The developer’s solution: give another player the legendary “Sword of a Thousand Truths,” a unique item that might even the odds.

Eight years later, South Park lambasted so-called “freemium” games in its Primetime Emmy Award-nominated episode “Freemium Isn’t Free.”  This episode, too, took a hard look at gaming culture, paying particular attention to “freemium games”—in which players can play a videogame for free, but to obtain certain desirable upgrades or items they must pay real-world money.  In this episode, an eight-year-old character spent thousands of dollars on freemium upgrades, much to his father’s chagrin.

Not surprisingly, South Park’s observations about videogame culture were right: gamers will place a premium on certain virtual items, and are eager to spend big money to get them.

To read the full article, please click here.

“Loot Boxes in Videogames: Gambling by Any Other Name?” by Jeffrey N. Rosenthal and Ethan M. Simon was published in The Legal Intelligencer on April 24, 2018.

Third Circuit Rules That Traditional Trusts Are Citizens of the States of Its Trustees and Business Trusts Are Citizens of the States of Its Owners for Diversity Purposes

Richard L.A. Wolf

The United States Court of Appeals for the Third Circuit recently determined that, for purposes of determining diversity of citizenship, the citizenship of a traditional trust is only that of its trustees, while the citizenship of a business trust is that of each of its constituent owners. GBForefront, L.P. v. Forefront Mgmt., LLC, No. 16-3905 (3d Cir. Apr. 19, 2018).

The case involved claims brought by GBForefront, a limited partnership whose membership included various trusts, against Forefront Management Group, LLC (“FMG”) and others, alleging that the defendants had defaulted on the terms of a settlement agreement. FMG moved to dismiss, arguing that complete diversity, the basis for subject matter jurisdiction in this case, was lacking. Between the filing of the motion and the District Court’s decision, the United States Supreme Court decided Americold Realty Trust v. Conagra Foods, Inc., 136 S. Ct. 1012 (2016), in which it held that the citizenship of a business trust includes the citizenship of all its members. Continue reading “Third Circuit Rules That Traditional Trusts Are Citizens of the States of Its Trustees and Business Trusts Are Citizens of the States of Its Owners for Diversity Purposes”

Third Circuit Restricts Corporate Officer Liability under Telephone Consumer Protection Act

Adrienne C. Rogove

In a recent precedential opinion in City Select Auto Sales, Inc. v. David Randall Associates, Inc., 885 F.3d 154 (3d Cir. 2018), the United States Court of Appeals for the Third Circuit affirmed a judgment by the United States District Court for the District of New Jersey following a jury verdict dismissing a case brought under the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, against the president and co-owner of David Randall Associates, Inc. (“DRA”). DRA was a commercial roofing company. Raymond Miley (“Miley”) was its president and a majority shareholder. DRA hired Business to Business Solutions (“Business Solutions”) to fax unsolicited advertisements to thousands of fax numbers. City Select was the recipient of some of these faxes.

Under the TCPA, it is “unlawful for any person…to use any telephone facsimile machine…or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. § 227(b)(1)(C) (emphasis added). The Federal Communications Commission has defined “sender” as the person “on whose behalf [the faxes] are transmitted.” 10 FCC Rcd. 12391, 12407 (1995). Here, City Select argued that the “on whose behalf” language was meant to place liability on the author or originator of the relevant faxes, and therefore, Miley, as the author or originator of the faxes, was a “sender” under the TCPA. Continue reading “Third Circuit Restricts Corporate Officer Liability under Telephone Consumer Protection Act”

False Hope for False Claims Act Defendants? Government Dismissals of Qui Tam Cases May Increase

Nicholas C. Harbist and Lauren E. O’Donnell

On January 10, 2018, the Department of Justice (“DOJ”) Civil Fraud Section Director, Michael Granston, sent an internal memorandum (the “Memorandum”) to attorneys responsible for civil False Claims Act (“FCA”) enforcement. The Memorandum provides guidance to DOJ attorneys considering whether to dismiss FCA qui tam cases. The Memorandum begins by noting that, while the number of FCA qui tam cases has increased substantially over the years, the rate of government intervention has remained the same. The Memorandum advises DOJ attorneys to consider seeking dismissal as they evaluate whether to intervene. Continue reading “False Hope for False Claims Act Defendants? Government Dismissals of Qui Tam Cases May Increase”

Financial Institutions’ Hiring Practices under the Microscope: The Importance of Anti-Corruption Programs

Shawn M. Wright, Mayling C. Blanco, and Richard L.A. Wolf

On February 14, 2018, another major financial institution disclosed that it is under investigation for possible violations of the Foreign Corrupt Practices Act (“FCPA”). This disclosure comes at a time when the Department of Justice (“DOJ”) and the Securities and Exchange Commission (“SEC”) continue to scrutinize the hiring practices of financial institutions in and with respect to their Asian markets.

Investigations of Financial Institutions Operating in Asia

In its earnings statement, the financial institution announced that the DOJ and the SEC are investigating its “hiring practices in the Asia Pacific region and, in particular, whether [it] hired referrals from government agencies and other state-owned entities in exchange for investment banking business and/or regulatory approvals” in violation of the FCPA.1 In November 2016, a similar financial institution and its Hong Kong-based subsidiary agreed to pay the SEC, the DOJ, and the Federal Reserve Board $264 million to settle charges that it violated the FCPA by hiring unqualified employees referred by government officials, particularly those with connections to upcoming transactions.2 Other financial institutions have been investigated for similar practices in the region.3 Continue reading “Financial Institutions’ Hiring Practices under the Microscope: The Importance of Anti-Corruption Programs”

WEBINAR | Blockchain and Cryptocurrency Litigation Concerns: Class Actions, Criminal Exposure, and Criminal Tax Implications

Wednesday, April 11

1:00–2:00 p.m. (EDT)

Online via WebEx

Click here to register

 

 

Blockchain technology and cryptocurrencies are not only dominating the headlines, they’re changing the way companies do business. As the regulatory, transactional, and litigation landscapes continue to evolve at a rapid pace, Blank Rome’s attorneys have maintained cutting-edge knowledge of the issues facing a broad range of businesses in a wide range of areas.

On Wednesday April 11, 2018, from 1:00 to 2:00 p.m. (EDT), Blank Rome Partners Michelle Gitlitz, Carlos Ortiz, Ana Tagvoryan, and Shawn Wright will present a live webinar that will cover some of the most important issues facing companies today, including:

  • Blockchain basics—what you need to know
  • White collar issues surrounding the adoption of blockchain applications or the use of digital currencies, including SEC, CFTC, state enforcement efforts, and criminal tax implications
  • Class action vulnerabilities and implications

Please contact Marianne Talbot for more information about this event.