Archives for October 2021

October 29, 2021-

Floyd Abrams’s Important  NYT Guest Essay Warns that the Supreme Court “Faces a Huge Test on Libel Law”

An October 22^nd Op Ed in the New York Times by Floyd Abrams, a First Amendment lawyer whose firm occasionally represents the newspaper, highlights a test of libel law facing the Supreme Court as they hear appeals in two recent libel cases and consider whether the First Amendment protects such speech or conduct.

Justices Clarence Thomas and Neil Gorsuch have expressed a readiness to reconsider the landmark 1964 decision of the Supreme Court in New York Times v. Sullivan.

In Sullivan, the Supreme Court barred public officials from recovering damages for “defamatory falsehoods” related to their official conduct without clear and convincing evidence that the statements were made with “actual malice” and made with the “knowledge that it was false or with reckless disregard of whether it was false or not.”   The Court’s decision reinforced our nation’s commitment to the free and open debate of public issues and affirmed the importance of uninhibited dialogue in the discussion of such issues. SCOTUS also stressed that, “Erroneous statement is inevitable in free debate” and “must be protected if the freedoms of expression are to… survive.”

Abrams’s article goes on to contrast libel cases in the United States from those in England, pointing out the lack of libel protections in England.  Abrams explains that, in England, “a defendant could be libel for a false statement even if he was unaware that it was false” and subject to stiff sanctions. The Sullivan decision protects against these exact issues here in the US, where the burden of proof is on the plaintiff to prove a statement was false.

Abrams’s  Op Ed sheds light on libel protections that would be jeopardized if Sullivan were overturned. With two justices already expressing reconsideration of the ruling, it seems the First Amendment protections acknowledged by the Court in 1964 remain in fragile limbo.

To read the full essay by Floyd Abrams in the New York Times, click here.

To read the amicus brief mentioned in the article that the New York Times joined in support of the defendants, click here.

October 29, 2021-

FTC Warning and Stricter Enforcement of §5 of the FTC Act Regarding Deceptive Online Endorsements

According to Proskauer, a new warning from the Federal Trade Commission has been sent to more than 700 companies and shows a move toward stricter enforcement of §5 of the FTC Act. Recipients of the FTC’s Notice of Penalty Offenses Warning were told to cease the use of deceptive endorsements in online advertising, conduct previously determined by the FTC to be unfair and unlawful or deceptive.

Companies in breach face civil liability penalties of up to $43,792 per violation.

Among the 700+ companies to receive the warning were major retailers and advertising agencies. Recipients were told to forward the warning to subsidiary companies engaged in the sale or marketing of products or services to US consumers. Though none of the companies to receive notice warnings are alleged to have engaged in any wrongdoing, the FTC has made clear that it is focused on cracking down on deceptive endorsements in online marketing and will vigorously pursue advertisers who violate the terms of §5.

The Notice provided a non-exhaustive list of previously determined unlawful practices, including:

• Falsely claiming an endorsement by a third party;
• Misrepresenting whether an endorser is an actual, current, or recent user;
• Using an endorsement to make deceptive performance claims;
• Failing to disclose an unexpected material connection with an endorser;
• Misrepresenting that an endorsement represents the experience, views, or opinions of users or purported users;
• Misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience; and
• Continuing to use an endorsement without good reason to believe that the endorser continues to subscribe to the views presented.

Avoiding the practices outlined above, in addition to reviewing the FTC’s guidelines concerning the use of endorsements and testimonials in advertising will mitigate the risk of facing an FTC liability.

To read the full article from Proskauer, written by Lawrence Weinstein, Jeffrey Warshafsky, and Jessica Griffith, click here.

To read the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, click here.

To read how CASTAYBERT PLLC can help you with Advertising and Marketing Law, click here.

Jan. 1, 2022 — André Castaybert, principal attorney at Castaybert PLLC, has received a “Preeminent” AV rating in ethical standards and legal ability from the 2022 Martindale-Hubbell peer review.  This is the highest possible honor that Martindale-Hubbell can bestow upon an attorney.  This marks 9 consecutive years that André has received this award.

Jan. 1, 2021- André Castaybert, principal attorney at Castaybert PLLC, has received the highest possible rating from Lawyers.com for their 2021 peer ratings in both Legal Ability and Ethical Standards. The ratings are monitored by Martindale-Hubbell, the world’s most trusted legal resource. 

Jan. 1, 2020 — André Castaybert, principal attorney at Castaybert PLLC, has received a “Preeminent” AV rating in ethical standards and legal ability from the 2020 Martindale-Hubbell peer review.  This is the highest possible honor that Martindale-Hubbell can bestow upon an attorney.  This marks 7 consecutive years that André has received this award.