Rob Freund
@RobertFreundLaw
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Lawyer for brands, agencies, and creators. Focusing on marketing & ecommerce issues | Former @gt_law | Ableton enthusiast |
Los Angeles, CA
Joined January 2019
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Last Seen Profiles
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About time I pin a proper intro 👋
I'm Rob, and I'm an advertising & ecommerce lawyer. If you make money online, I help you keep it.
My clients are consumer brands, marketers, agencies, and creators.
You can learn more or book a consultation here:
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Taco Bell was sued today in a false advertising class action.
Consumers allege that Taco Bell misrepresents the amount of beef in the Crunchwrap Supreme "by at least double the amount."
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Today, Hershey's was sued in a false advertising class action.
Florida consumers say they were deceived because Reese's pumpkins don't actually have jack-o-lantern faces on them:
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If you "buy" a digital movie on Amazon, but Amazon removes the movie from its library when Amazon's license expires, did you really buy it?
Amazon faces a false advertising class action about this issue, and today, it lost its motion to dismiss the case.
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Boohoo has agreed to pay $197,000,000 to settle a case alleging it advertised fake discounts on its site and on Nasty Gal and PrettyLittleThing.
Remember: using fake reference prices to run sales is illegal under the FTC Act and California's laws.
Let's do a deeper dive:
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@Variety
I think people are missing that yes, Bill can do whatever he wants on his show and doesn't have to accommodate anyone.
But he reached out to Steve-O. Everyone knows the guy's sobriety is extremely important to him.
Why even ask him to come on?
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@icanhasgains
Same! I look forward to receiving my $0.50 store credit as a class member in the future.
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@BowTiedKong
Might have to do with the fact that he’s good friends with someone who would tweet this.
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Kim Kardashian made a video touring her SKKN BY KIM office in LA.
In the video, she name-dropped her Donald Judd tables and chairs.
But those furniture pieces were knock-offs, according to a lawsuit filed against Kim by Judd today.
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You can't just walk into Hermès and buy a Birkin bag.
Instead, you need to have a history of buying other Hermès items.
In a class action lawsuit filed today, California consumers say that policy—tying the sale of Birkins to other products—is illegal.
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Harry and Meghan sent a letter to Backgrid (paprazzi photo agency) demanding they hand over pics from Tuesday.
The response from Backgrid's counsel is one for the books:
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Here’s another good reminder about publicity rights.
Publicity rights are violated when a person’s name, image, or likeness is used for commercial purposes without their permission, such as in an Instagram post advertising a product. 1/
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The consumers say they would not have bought the products if they knew there were no carvings:
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Lot of requests to discuss the legal issues with Mikayla Noguiera's controversial L'oreal ad on TikTok.
Let's look at this from an FTC compliance standpoint:
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@iamdulma
@MattWalshBlog
I can’t understand why anyone would care whether anyone else has kids.
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Yesterday, a court ruled that this🌝emoji could constitute securities fraud:
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Remember that you don’t have to be Kim K to have publicity rights.
Everyone has them.
So, if you’re an influencer of any size (or not one at all), and a brand uses your image in an ad, you can do something about it.
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This is my favorite "please stfu" judicial order:
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Plaintiffs say most reasonable people think "buy" means to acquire possession and ownership.
Amazon says people know that "buy" really meant "obtain a limited license," and the Terms of Use clarify anyway.
The court ruled that Amazon's terms may not have been clear enough.
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In this case, Missguided tagged Kim Kardashian and mentioned her name in posts advertising its products.
Because Missguided did not have Kim’s permission, they violated her publicity rights.
A California judge awarded Kim $2.7 million in damages.
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Today, the FTC announced updates to its Endorsement Guides (the rules about disclosing connections between creators and brands).
I will go through the new additions in more detail in another thread, but here are a few specific Q&A examples from the FTC that jumped out at me: 🧵
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@MichaelRStrain
Easiest way to troll Twitter is to post about the virtues of impressing an employer on a national holiday. Nailed it.
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This is how Mr. Beast's giveaway appears to violate Instagram's TOS and might violate state laws.
A quick thread.
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While you're here...
People love to tear apart a good old fashioned American (seemingly) frivolous lawsuit about ads.
But it's not so fun when your brand is on the receiving end of one. My job is to limit the chance of that happening.
Consider throwing me a follow for…
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Clint Eastwood’s watermark game is unrivaled.
At home with girlfriend Christina before heading to the Monterey Sea Stars Gala, August 2023...
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A $100M false advertising class action was filed yesterday against "Liver King" Brian Johnson and his supplement companies, Ancestral Supplements and The Fittest.
Let's break down this Complaint:
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Memes and the workplace: a cautionary tale as summarized by a federal judge
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@milkkarten
@ladidaix
I don't think so. General concepts like a father and daughter bonding over a major pop culture story isn't the sort of thing that copyright laws protect. And the Cetaphil ad doesn't copy any protectable elements of her video, in my opinion.
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@iamghostdesigns
In a best case scenario for them, they get the price of the products x all sales in Florida for 4 years as damages. Lawyers take a third of that total for their fee, everyone else gets a dollar or two.
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@JenkoKent
I laugh when I think about the nutrition panel for pure oil in spray form. Wow when disperses into a mist I guess the calories go away.
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The Washington State AG has sued a plastic surgery provider for manipulating customer reviews and buying fake Instagram followers.
The issues here apply not just to medical providers but all consumer-facing businesses.
Let's break down this Complaint:
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These deepfakes ads aren't legal. Rogan and Huberman would have straightforward claims for false endorsement and publicity rights violations.
My first time seeing a deepfake ad in the wild on TikTok… 😳
How tf is this legal?
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Law firm partner: I know there's a case out there that says this. I've cited it before.
Partner's diary:
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I should note that this is not breaking news—it's a case from a few years ago, but similar cases are filed (and won) regularly.
Selena Gomez is currently litigating a publicity rights case in LA against a mobile gave developer, which made me think of this one.
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@kellienpups
@TaylorLorenz
She did, but you only see it if you tap "more" to expand it. This exact issue was presented in the FTC's case against Teami, in which the FTC found that placing the disclosure after the "more" button was not clear and conspicuous.
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If you host a drag brunch and get sued by anti-drag protestors, opening your motion to dismiss by comparing the plaintiffs to drag queens is pretty funny:
A North Carolina restaurant is being sued over posts it made advertising a drag brunch event.
The restaurant took pictures of anti-drag protesters and edited the photos to make it look like those individuals were instead promoting the restaurant's event:
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Today,
@iamobrafour
sued
@Drake
for copyright infringement for sampling "Oye Ohene (Remix)" in the track "Calling My Name."
Obrafour says Drake' previously sought permission to use the work, didn't get it, and released the track days later anyway.
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Tom Hanks was asked what job he would least like to do.
"A lawyer. That's doing homework for a living."
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New copyright/RICO lawsuit against Shein accuses the business of operating as a "dizzying and ever-changing decentralized amalgamation of companies."
Plaintiffs say Shein is run by "a mysterious tech genius, Chris Xu, about whom almost nothing is known."
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@asj519
She commissioned Clements to provide knockoffs to her. Judd has the literal receipt (below).
They are suing because they don't want the Judd name associated with the allegedly inferior quality dupe furniture.
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@jeremy_b12345
That it's an antitrust violation.
Tying is a problem if it helps maintain or increase the seller's market power or hurts competition in the market for the product.
This is a good general overview:
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@winston178
If it gets to that stage, and you're within the eligible class, you will automatically be included unless you opt out.
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BigLaw firm Winston & Strawn was sued today for allegedly plagiarizing another firm's Rule 12 motion.
Hsuanyeh Law Group registered one of its Rule 12 motions with the Copyright Office and says Winston copied it "nearly verbatim" in a consolidated case.
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Judd's foundation is suing Kim for false endorsement and the furniture designer, Clements Design, for trademark infringement, copyright infringement, and false advertising.
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Udemy has agreed to pay $4,000,000 to settle a case alleging it advertised fake discounts for its courses.
Remember: using fake reference prices to run sales is illegal under the FTC Act and California's laws. 1/
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I see two main issues here:
1) Ineffective disclosure of the sponsored nature of the content; and
2) False or misleading claims in the endorsement.
Taking each in turn:
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Calling a lawyer a nerd is not an insult. It's stating the obvious. We chose to go to extra school to study laws. You've got to get more creative than that.
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“In other words, Boohoo’s ‘sale’ is not really a sale at all. It is a scam. All the reference prices on Boohoo’s website are fake. They are not original, regular, retail, or former prices," plaintiffs alleged.
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A lawsuit filed yesterday against Foot Locker accuses the brand of using a "false urgency" dark pattern—claiming items are running out of stock, when they aren't:
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@LazyPawsAndy
I don’t think that’s an available remedy for false advertising, even in Florida
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Is it illegal discrimination to charge extra for almond milk?
Lactose-intolerant consumers who sued Dunkin Donuts in a class action today say it is.
They claim the $0.50-$2.15 extra charge violates the ADA, because "there is no material difference between the price" of regular…
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Read the order here:
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If you are this lawyer with a $584M annual marketing budget, I'd also like to speak with you.
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If your brand is not using properly drafted agreements with your influencers, fix that today.
And if you're a creator, don't gloss over your agreements! Make sure you understand everything in them before you sign.
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The court disagreed.
It ruled the customers adequately alleged that they would not have bought the items at all if they knew that there was no real discount, so Boohoo was unjustly enriched.
Because of the failed bid to dismiss, the settlement value drastically increased.
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@JamesEagle17
Taking photographs in public places is not harassment. But even if it were, there's no grounds to demand forking over evidence outside the context a legal proceeding.
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Here, the "L'Oreal Paris Partner" disclosure is in very small font and appears for just a few seconds of the video.
That, to me, is not clear and conspicuous, and I would bet that the FTC would feel similarly.
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More than 15 record labels sued Twitter today for copyright infringement, seeking over $225M in damages.
They allege that, unlike "numerous Twitter competitors," Twitter "breeds massive copyright infringement that harms music creators."
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Again, brands, please do not post celeb pics on your IGs just because they wore your stuff!
Yesterday, shoe brand Stuart Weitzman was sued for copyright infringement for posting a pic of Kendall Jenner on its Instagram.
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To recap, Mikayla uploaded a video reviewing the L'Oreal Telescopic Life mascara.
It appears to be sponsored content.
It also looks like she applied fake lashes to exaggerate the mascara's effects, which led to a surge of backlash.
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The lawsuit says Boohoo advertises “fake and inflated comparison reference prices to deceive customers into a false belief that the sale price is a deeply discounted bargain price.”
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AI is going to keep lawyers busy forever
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Try to contemplate the mind of someone who would buy a Fleshlight and sue for false advertising when "performance" doesn't improve.
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Disclosures first:
The FTC requires that any "material connection" between an endorser (e.g., an influencer) and an advertiser (like L'Oreal) must be disclosed "clearly and conspicuously."
Otherwise, the ad is deceptive and violates Section 5 of the FTC Act.
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Last month, Amazon began including ads in streaming Prime content, unless subscribers paid an additional $2.99/mo.
Today, Amazon was sued in a class action alleging that the price increase violates WA and CA consumer protection laws and for breach of the Prime user agreement.
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Imagine sitting through this presentation, allegedly from a Paul Hastings "PE/M&A Junior and Midlevel Training Session" put on by a senior associate.
You are a waiter at Alinea? Are they "online 24/7" too?
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They say making your first $291.8136984 is the hardest.
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Remember that it's not just the influencer who is potentially liable for violations of the FTC Act—the brand is, too.
That's why it's critically important for brands to have monitoring and compliance programs in place for all influencer campaigns.
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This week, Meta sued Prestige Ecommerce and its owner, Luke Allen, for running FB ads for products but delivering different, inferior goods and hiding the scheme through fake positive reviews:
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Today, Andrew Huberman sued supplement brand A&D Performance for false endorsement and violating his publicity rights.
A&D used AI to doctor video clips from Dr. Huberman's appearance on Rogan to make it look and sound like Huberman endorsed A&D:
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Well, that's one way to respond to being sued for promoting FTX.
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@natlawyerchic
My guess is that the settlement was inked before the complaint was filed. She got to file it, let the public see it, then announce settlement 24 hours later.
That also helps explain the “Trigger Warning” on the first page of the complaint. It was for the public to read.
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Announcing that two of your employees will be fired at the end of the week, but not saying who, is something only a law firm could come up with.
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DoNoTPay's "Robot Lawyer" is neither a robot nor a lawyer, according to a new class action lawsuit.
The lawsuit is brought on behalf of all California residents who bought DoNotPay subscriptions, and it seeks repayment of all fees, among other things.
Let's take a look:
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The lawyer who used ChatGPT for the first time for a brief
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Here's a wild lawsuit:
What would you do if you saw your face promoting a Netflix doc about an axe murderer?
Non-murderer Taylor Hazlewood says Netflix took a pic from his Instagram and used it in "The Hatchet Wielding Hitchhiker" for no reason "other than pure recklessness":
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@TheGregGarone
That's the idea—either it was never $60, or it was $60 so long ago or for such a brief period of time that it's deceptive to use it as a reference price.
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This disclosure requirement is why we have
#ad
and the like.
A material connection is any relationship that might effect the weight or credibility the audience would give the endorsement.
Idea being, if you knew the review was paid for, you'd consider that when deciding to buy.
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Finally, I expect that L'Oreal's agreements include requirements that the influencers will comply with the FTC's Endorsement Guides, so it's likely she's breached that contract.
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DO NOT DO THIS.
It's NOT legal—but you could almost excuse that misunderstanding.
Claiming it's "100% ethical" is an absolute joke.
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