March 2013

In a recent post, I discussed how a company could be liable for referencing a third-party’s unbiased endorsement if, unbeknownst to that company, the basis for the endorsement turned out to be unjustified.  In another advertising-related development last week, the Federal Trade Commission (FTC) issued new guidelines: How to Make Effective Disclosures in Digital Advertising

One key point the FTC makes in the new guidelines is that when a disclosure is necessary to ensure that an ad is not misleading or unfair, the disclosure must be clear and conspicuous.  Recognizing that this can be particularly challenging when ads are viewed on mobile devices such as smart phones and tablets and/or in the context of other emerging technologies, the FTC explains in detail how the following five circumstances affect the clarity and conspicuousness of disclosures when advertisements are viewed on non-traditional media:

  1. Proximity and Placement
  2. Prominence
  3. Distracting Factors in Ads
  4. Repetition
  5. Multimedia Messages and Campaigns

Although the entire publication is less than 25 pages of text (including a number of useful examples), you can review a nice summary of the new guidelines in a post in the Covington and Burling blog, Inside Privacy.  

In-house counsel should be … Keep reading

As I mentioned in some of my prior posts, the Massachusetts Weekly Payment of Wages Act (“Wage Act”) poses many challenges to employers due, in part, to the vagueness of its terms, the strict liability it imposes on employers (and individuals having management of the company), and the threat of treble damages and attorneys’ fees.  One thing is clear, however: commissions are considered “wages” under the Wage Act if they are “definitely determinable” and have become “due and payable.”  While many in-house counsel and employers are aware of this, they mistakenly assume that their company can avoid violating the Wage Act if the company’s commission plan states that commissions are payable: (a) only if the employee is employed at the time the employer decides to pay them, or (b) only at the employer’s discretion.  As Prudential Insurance Company of America recently found out, however, simply including such a clause may not provide enough protection if the plan does not clearly address when commissions are “definitely determinable” and when they are “due and payable.”

Prudential had an elaborate nine-page document outlining its Regional Coordinators’ Sales Compensation Plan.  One of its long-time employees, Christopher McAleer, claimed that he was terminated … Keep reading

When an employee talks to in-house or outside counsel for the purpose of obtaining legal advice for the company, that communication will be privileged and can be protected from disclosure.  Likewise, when in-house counsel is meeting with several employees at the same time for the purpose of gathering information to be used for legal advice, the communication that takes place will be privileged.

Notwithstanding the fact that the attorney-client privilege applies to communications between a lawyer and a client, many people still believe that communications amongst employees are protectable even if no attorney is present, as long as they are discussing an ongoing or potential litigation.  That is a misguided notion, and looking at the facts of a 4th Circuit case, US v. Tedder, reveals how dangerous having such a misconception can be.… Keep reading