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New Essential Desk Reference: Consumer Protection Law Developments Treatise

May 18, 2016

Consumer-facing companies across a vast range of industries—including retailers, auto makers, food and consumer product manufacturers, financial institutions, e-commerce companies, and telecom companies—face an increasing number of compliance and enforcement challenges under the rubric of consumer protection law. 

Whether the challenges arise because of complex or seemingly dated regulatory regimes, increased state and federal agency coordination, the growing footprint of the Consumer Financial Protection Bureau (CFPB), or the range of enforcement actions being pursued by a growing number of federal, state and local agencies, and international enforcers as consumer protection matters, the questions raised for consumer product manufacturers, consumer services providers, and other consumer-facing companies are important and complex.

SECOND EDITION, EXPANDED TO TWO VOLUMES

We are pleased to announce the publication by the American Bar Association Section of Antitrust Law of Consumer Protection Law Development Second Edition (CPLD II). The new edition offers a comprehensive view of significant developments since the 2009 first edition, including the effect of new technologies on consumer protection laws, the expansion in state consumer protection law enforcement, and the growing importance of international legal precedent. Included is a new chapter on the CFPB and one that offers an in-depth discussion of privacy in the context of e-commerce and social media.

“Consumer protection defense continues to be an area of growing interest for clients on topics as diverse as financial products, medical devices, nutrition labels, privacy, and advertising and marketing,” said Morgan Lewis partner Daniel Savrin, who served as co-chair of the editorial board for CPLD II. “Our team—which is well positioned to represent companies in all of the relevant forums and on the full array of consumer protection and regulatory matters—works to offer the most up-to-date substantive information to our clients. The CPLD II is a great starting point of conversation and an ongoing reference guide.”

Read the ABA’s press release.

Morgan Lewis Consumer Protection Defense Practice

Our market-leading consumer protection defense team handles the full range of issues affecting manufacturers of consumer products and providers of consumer services. We represent businesses in all types of consumer protection matters, including federal, state, and local investigations and class action, qui tam, regulatory, and individual litigation matters. Consumer protection challenges often present themselves in a variety of forums, and our team is positioned to provide full, coordinated, and effective representation of any and all related matters.

Our award-winning litigators have worked on consumer protection–related class action litigation in state and federal courts and in Lanham Act litigation and coordinate on matters with members of our government enforcement team.

We regularly handle consumer protection matters before the following:

  • The CFPB
  • The Federal Trade Commission (FTC’s) Bureau of Consumer Protection
  • The Office of Comptroller of the Currency
  • The Consumer Product Safety Commission
  • The US Food and Drug Administration
  • State attorneys general
  • Congressional committees
  • Federal and state courts

Learn more about our consumer protection defense capabilities.

Q&A With Daniel Savrin

Boston partner Daniel Savrin, who leads our consumer protection defense practice, sat down with us to discuss key issues addressed within the CPLD II, tips on how to select counsel, and important new topics that clients—no matter where in the world they are based or what product or service they offer—should look for in CPLD II.

This second edition covers significant consumer protection developments since the first edition came out in 2009. What are the highlights?

Important elements of CPLD II include a new chapter specifically dedicated to the CFPB; a greatly expanded chapter on state consumer protection law that provides information on a range of issues, by state, including such elements as the availability of private remedies, whether actions can be brought on a class basis, and the scope of government enforcement. 

Notably, the chapter on privacy addresses consumer protection in a variety of contexts with a substantial focus on privacy in e-commerce and social media. Privacy is a growing area of attention and enforcement activity, and the privacy chapter addresses these important issues in a comprehensive fashion.

What do clients need to know about the expansion in state consumer protection law enforcement?

The two most significant developments in state consumer protection law are procedural as opposed to substantive and involve the extent of coordinated efforts.  

In terms of state attorneys general enforcement, it is important to appreciate that the staff at different attorneys general offices are in constant communication on a variety of issues and that, when consumer protection law issues command their attention, they often pursue those matters through multistate investigations and enforcement efforts. Understanding how to handle a multistate investigation is an important skillset that clients need to ensure their counsel has when they are choosing consumer protection counsel. 

What are clients surprised to learn about coordination among agencies in these matters?

Many companies and their counsel do not have an appreciation of the extent to which federal enforcement agencies, including, among others, the CFPB and FTC, coordinate with state attorneys general as well as, where appropriate, federal criminal enforcement authorities. The level of coordination requires that clients and their consumer protection counsel are attuned to these issues and have the ability to call on colleagues that have experience with the various enforcement authorities and can work effectively to coordinate their efforts on behalf of the client.

What makes international legal precedent increasingly important to US clients?

As marketing and advertising becomes increasingly global and commerce is often conducted electronically without due regard for border differentiation, US and international clients need to be mindful of the consumer protection laws of other jurisdictions to enable compliance efforts and manage the risks associated with operating consumer-facing businesses in multiple jurisdictions. The prospect that foreign authorities may seek to bring enforcement actions with respect to advertising and marketing that is conducted on a global basis—or without regard to global borders—is one that US clients, as well as international clients, need to be mindful of when they are considering the locations where they intend to market their products or services.

At Morgan Lewis you work with many colleagues from across offices and service areas—tell us more about what we offer.

I joined Morgan Lewis as a partner in November 2014 and have been continually impressed by the level and range of experience of our consumer protection team.  

Consumer protection work requires you to have a team that can handle these matters at all levels of government and, increasingly, in a global context. While traditionally, consumer protection work would involve the FTC, state attorneys general, and, perhaps, tag-along class action litigation, the reality is that there are a growing number of federal agencies that are pursuing consumer protection matters, and Congress sometimes becomes involved; federal, state, and local prosecuting authorities sometimes become involved; and class action lawyers have increased their level of activity. As such, there is an increasing need to call on people with experience in each of those areas to represent clients in consumer protection matters. 

Members of Morgan Lewis’s consumer protection defense team have experience addressing these issues at all levels of government and in the class and in civil and criminal enforcement context. In addition to having a very “deep bench” relative to different types of enforcement activity, our team has experience across a broad range of industries, including many that are a primary focus of consumer protection enforcement activity—such as automotive, food and beverage, financial services, pharmaceutical, retail, e-commerce, and technology.

Describe one or two of the most leading-edge matters that you’ve worked on in the last year in the consumer protection defense space.

In the consumer protection area, it is always a challenge to speak about your matters because success is often determined by convincing enforcement authorities that their investigation does not warrant any further action with respect to your client. Cutting-edge areas where we have been active include privacy, mobile and online tracking, social media advertising and marketing, and debt and debt collection matters involving financial services and related companies.

What are the most important developments that clients should be asking us about?

Looking ahead, the most important developments in the consumer protection area, I think, will arise in the cutting-edge areas that I talked about—privacy, mobile and online tracking, and social media advertising and marketing. I expect that the CFPB will continue to focus on an array of financial services matters and will try to expand its reach to matters that are ancillary to, but distinct from, their financial services–focused mandate.  

Further Reading

FTC Complaint Highlights the Need to Disclose Material Connections in Ads (March 2016)
The CFPB and the Future of Arbitration Clauses (March 2015)
The CFPB and the Future of High-Interest Lending (March 2015)
CFPB Issues List of Consumer Protection Concerns for New Faster Payment Systems (July 2015)