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December 22, 2015

Thank You for 2015 – Best Wishes for 2016

This is the time of year when many of you are celebrating holidays; spending time with family, friends and loved ones; bidding farewell to 2015; and looking forward to the New Year – 2016. A time when many of us pause to reflect on what has happened in the past year and wonder what the new year will bring. There are people who have touched us and some with whom we’ve gotten closer; some we have missed and many with whom we resolve to try and be better in the new year; and perhaps a few we might like to forget. We pause to remember those who are no longer with us and appreciate that by remembering them, we keep their spirit – all we have learned from them and all they have meant to us – alive. As 2015 comes to an end, we reflect on friendships and relationships, events and experiences. Many will use the opportunity to thank those who have helped us in tough times and those with whom we cherish sharing the good times.

For me it has always been a time to resolve to keep doing the good things I’ve done and to be better about trying to do those things I should have done. This time of year gives me an excuse to say thank you and express appreciation to everyone who has enriched my life. If you are reading this, you are part of my audience – part of the fabric of my professional life and, like the threads of that fabric, you have helped me weave the patterns and textures you read in these digital pages and the thoughts and sensitivities that become imprinted in my mind. I am grateful for your readership and in some cases, your friendship. I am always appreciative when you take a moment to read and perhaps gain some insight, while also being a little entertained.

So let me take this the opportunity to wish each of you, your families, friends, loved ones and yes, even an enemy or two, a beautiful and joyous holiday season and a healthy, happy new year, filled with wonder and magic, health and joy, challenge and opportunity, and prosperity and success. I especially want to thank a few people at Rimon like Kaitlin Southron, Lois Thomson and Rebecca Blaw who make this blog happen. These are the people you don’t see, but I do! They make Legal Bytes come alive. They are always amazing, consistently awesome and unbelievable under pressure. There are insufficient words to express my gratitude and appreciation – especially when they get my email that says “can we please post this ASAP.” Thank you. You make it look easy, you make me look good. I could not do this without you!

Continue reading “Thank You for 2015 – Best Wishes for 2016”

August 17, 2015

FTC Finally Defines ‘Unfair’

According to the FTC: “The basic consumer protection statute enforced by the Commission is Section 5(a) of the FTC Act, which provides that “unfair or deceptive acts or practices in or affecting commerce … are … declared unlawful.” (15 U.S.C. Sec. 45(a)(1)). Safe Web amended Sec. 5(a) “unfair or deceptive acts or practices” to include such acts or practices involving foreign commerce that cause or are likely to cause reasonably foreseeable injury within the United States or involve material conduct occurring within the United States.”

Given that view and the FTC’s traditionally robust enforcement activities in areas of false, deceptive or misleading advertising, it is not surprising that most advertising, marketing and promotional professionals are familiar with section 5.

However, of lesser fame are pronouncements by the FTC in what is “unfair” competition – another segment of the authority vested in the Federal Trade Commission by section 5 of the FTC Act. This is the lesser-known part of section 5 that gives the FTC the authority to take action when it determines that “unfair methods of competition in or affecting commerce” may be deemed illegal – essentially an antitrust concept.

For the first time, the FTC, this past Thursday (August 13, 2015) released a single page “Statement of Enforcement Principles Regarding ‘Unfair Methods of Competition’ Under Section 5 of the FTC Act“. Perhaps indicative of the challenges and internal discussions among the regulators themselves, the principles are short and, to many, appear to be a re-statement of what has already been the enforcement practices of the FTC in recent years concerning this provision of the Act.

The Commission announced it will follow three basic principles. In short, enforcement will be considered: (1) Using the same underlying principles that guide antitrust law – protection of consumer welfare; (2) if the practice causes, or is likely to cause, harm to competition or the competitive process, without any counter-balancing justification; and (3) if enforcement under the Sherman or Clayton Act is insufficient and independent action is considered necessary.

If you want to know more or have questions, please contact me or any Rimon attorney with whom you work.

July 7, 2015

Beyond Legal: Social Media Promotions

Yesterday (July 6, 2015), the Social Media Law & Policy Report™ published by Bloomberg BNA posted my article entitled: “Beyond Legal: What You Should Know About Social Media Promotions.”

The article highlights some of the additional considerations advertising and marketing professionals (and their lawyers) need to take into account when conducting sweepstakes, contests and promotional activities on social media platforms.

You can read the article directly at “Beyond Legal: What You Should Know About Social Media Promotions.” , or download a copy for your personal use here: Rosenbaum – Beyond Legal (BNA Reprint).

Do you need to know more about advertising, marketing or promotions operating in the world of social media or on mobile platforms? Our legal team has broad and deep experience in virtually every aspect of advertising and marketing, traditional, digital, virtual on this world or in others, or any of the lawyers with whom you regularly work, at Rimon.

June 5, 2015

FTC Updates Its FAQs for Endorsement Guides

The Federal Trade Commission has just updated its version of Frequently Asked Questions, or FAQs, that relate to the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” that went into effect December 1, 2009. You can find the updated FTC website page right here “What People Are Asking.”

If you are a loyal Legal Bytes’ reader, you know we have been following this since as early as November 2008, when we posted Endorsements & Testimonials – FTC Broom Proposes Some Sweeping Changes, and numerous updates and informational pieces have graced these pages since then (now when we say “pages,” we mean web pages). You can refer back to any or all of them, or you can check out any you may have missed right here: FTC Testimonial and Endorsement Guides Stimulate Industry Comment (March 2009); a presentation given at the University of Limerick on the subject entitled “Trust Me, I’m a Satisfied Customer: Testimonials & Endorsements in the United States,” which you can download; Ghostwriters: Medical Research or Paid Endorsers (and are they mutually exclusive?) and Rights of Publicity – Wake Up and Smell the Coffee! (both in August 2009); and FTC Releases Updated Endorsement & Testimonial Guidelines and Rimon Analysis of the New FTC Endorsement and Testimonial Guidelines (both in October 2009).

In December 2009, Legal Bytes posted another thoughtful and practical analysis FTC (Revised) Endorsement Guides Go Into Effect, written by John P. Feldman, so you know Rimon is following and keeping up with developments as they occur.

So, if you want to know more or have questions, please do not hesitate to contact me, or any Rimon attorney with whom you regularly work.

April 15, 2015

A Brief History of the U.S. Income Tax

Although income taxes were imposed for a brief time during the Civil War and again in the 1890s, it was not until 1913, upon passage of the 16th Amendment to the Constitution of the United States, that federal income tax became a permanent fixture for U.S. citizens and residents. Since Congress then was invested with Constitutional authority, they acted quickly to legally formalize taxes imposed on the income of individuals and corporations.

If you are a U.S. citizen or resident (indeed, if you reside anywhere income taxes are collected), consider what it takes to comply and make the necessary filings today.

Now take a look at the form that individuals were required by the Internal Revenue Service to file in 1913, the year permanent taxation started: 1913 Form 1040.

Do we really need to say anything more? Happy April 15!!

If you need advice or guidance about income taxes, in the United States or anywhere, please don’t contact me, Joe Rosenbaum.

February 27, 2015

The Only U.S. President Elected under the 12th Amendment is…

The 12th Amendment to the Constitution of the United States provides for the election of the president and vice president by the electoral college, and if no candidate obtains a majority, the House of Representatives chooses the President.

The only president of the United States to be elected by the House of Representatives under the 12th Amendment is John Quincy Adams.

In 1824, four major candidates vied for the presidency: Andrew Jackson, John Quincy Adams, William H. Crawford and Henry Clay. In the election, John Quincy Adams received 40,000 fewer votes than Andrew Jackson – Jackson received 153,544 votes out of a total of 356,038 cast in that election. Adams also garnered fewer electoral college votes than Jackson (Jackson had 99, Adams 84 and the other 78 votes going to other candidates). Since no candidate had a majority of electoral college votes, the presidential election went to the House of Representatives to select the president from the top three electoral college vote recipients – Jackson, Adams and Crawford. Clay was eliminated from contention, having the lowest number of votes. But in addition to being a presidential candidate, Henry Clay was the powerful Speaker of the House at the time. He threw his support to Adams – the tale told that he did so in return for his appointment as Secretary of State. Clay’s endorsement ultimately won the day: John Quincy Adams became president and Henry Clay was appointed Secretary of State, a position he held from 1825-1829.

February 26, 2015

…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)

Everyone knows there is competition, hype and controversy over nominations and awards at each year’s contest run by the Academy of Motion Picture Arts & Sciences. The competition culminates in an annual show broadcast around the globe and endearingly referred to as the “Academy Awards,” or simply the “Oscars” – referring to the golden statuette given out during the broadcast and evidencing the winners. In recent years, the hosts of the Oscar broadcasts – some controversial and others not – have changed almost as often as the tidy-whities displayed by Michael Keaton in this year’s Best Picture winner Birdman or (The Unexpected Virtue of Ignorance). But do you know the legal controversy surrounding the Oscars?

Here are the facts:

Ellen DeGeneres wanted to take a “selfie” together with some of the most famous people in Hollywood, and by “tweeting” the photo, it become the most re-tweeted Twitter post ever. The camera used for the selfie was a Samsung Galaxy Note 3. Samsung is one of the advertisers with the Academy of Motion Picture Arts and Sciences, and Samsung gave it to Ellen for promotional purposes at the event. We don’t know of any agreement between Samsung and either the Academy or Ellen DeGeneres regarding the device or any photos or messages using the Galaxy Note 3. We do know Ellen did not actually take the picture. To get everyone she wanted to fit into the picture, Ellen passed the camera to Bradley Cooper, who had longer arms. He got everyone in the frame and pressed the shutter.

Here is the photo and tweet that resulted, and which immediately went viral when posted on Twitter.

which she then ‘Tweeted’

Continue reading “…and the Oscar Selfie Goes To or (the Unexpected Virtue of Being a Fish)”

February 25, 2015

The 12th Amendment in U.S. History

The 12th Amendment to the Constitution of the United States was ratified in 1804. It provided for the election of the president and vice president by the electoral college and not directly by popular vote. The 12th Amendment also states that if no candidate obtains a majority of the electoral college votes, the House of Representatives (one vote per state) chooses the president and the Senate chooses the vice president. Bet you didn’t know that!

Now the hard part.

Who is the only president of the United States to actually be elected by the House of Representatives under the 12th Amendment?

February 17, 2015

mHealth – Mobile Health Care

Last year, I was invited to participate in and present a paper at the “mHealth and the Law Workshop” in Washington, D.C. [See mHealth – The Future of Mobile Health Care].

Then last month, I was invited to participate in a panel at the Mobile FirstLook 2015 Conference in New York, and as a result of my participation, the editors of Mobile Marketer asked if they could republish (with attribution of course), the paper.

In case you missed it, you can view “Exploring legal challenges to fulfilling the potential of mHealth” online, or you can download the original from the Legal Bytes posting above.

As always, if you have questions, or need advice or guidance, just contact me, Joe Rosenbaum, or the lawyer with whom you regularly work at Rimon.