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You Must Have A ClickWrap Agreement or Risk Lawsuits

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In today’s world of e-commerce, a person cannot buy something online, subscribe to a service, or join a club or organization without agreeing to the provider’s “terms of service”. These terms are often lengthy and difficult to read (i.e., they are not written in plain English). For these reasons, among others, most consumers simply click the “I agree” button or link without reading the text or thinking about what they agreed to. However, the courts have ruled that these agreements are BINDING, and you should have them, read them, and use them.

Recently, noted Attorney Damon W.D. Wright of the Law Firm Gordon and  Reese sent me a good article he wrote for their legal guide, and the need to make sure that you have on your sales site a ClickWRap with a Arbitration Class Waiver to protect you from possible Class Action Lawsuits.

As he wrote, “The U.S. Supreme Court has held that mandatory arbitration and class action waiver provisions in website terms, where agreed to by the consumer, are enforceable to mandate arbitration and bar class actions, regardless of any state law to the contrary. This is one of the reasons it is so critical to use a clickwrap contract to obtain the consumer’s acceptance to the website terms. You need the consumer’s acceptance of the website terms to make the website terms, including mandatory arbitration and class action waiver provisions, enforceable against the consumer.

Without acceptance, your website terms — even if brilliant — can be entirely useless. However, with acceptance and well-written mandatory arbitration and class action waiver provisions, you will have substantially insulated your business from any class action liability.”

Most recently these agreements were used in the case In re Randall Holl, the U.S. Court of Appeals, Ninth Circuit reviewed an online arbitration agreement that implicated a combination of the clickwrap and incorporation by reference principles, enforcing an arbitration agreement of a consumer that claimed that he was overcharged by UPS and tried to start a class action – and ignore the arbitration agreement also within the ClickWrap.

While Holl conceded he checked the box indicating his agreement to the UPS My Choice Service Terms and the UPS Technology Agreement, he told the court he could not be bound by the arbitration clause because it was so inconspicuous that no reasonable user would be on notice of its existence and that the arbitration provision conflicted with the jurisdictional provision of the UPS Technology Agreement.

The district court disagreed and granted UPS’s motion to compel arbitration. 

Risk Free Skin Offer Scam Forced to Refund

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Nearly 80,000 consumers who signed up for “risk-free” trial offers for skin care products but were then enrolled in programs with recurring monthly charges without their permission will receive refunds totaling more than $1.8 million, the Federal Trade Commission has announced.

In June 2015, the FTC charged seven individuals and 15 companies with selling Auravie, Dellure, LéOR Skincare, and Miracle Face Kit branded skincare products through deceptive “risk-free trials.” According to the agency, the defendants asked consumers to provide their credit card information to pay shipping fees then used the information to set up unauthorized monthly recurring charges for unordered products.

Orders were entered against Paul Medina, Oz MizrahiMotti NotteaRoi ReuveniAlon NotteaDoron NotteaIgor LatsanovskiCalEnergy, Inc., Adageo, LLC, and Zen Mobile Media, Inc. and the default judgment and order entered against 19 corporate defendants include monetary judgments of more than $72.7 million. The stipulated order judgments are partially suspended based upon the defendants’ abilities to pay. The orders require these defendants to surrender virtually all of their assets to the FTC, totaling over $2.7 million.

The complaints also charged defendants with misrepresenting themselves as being accredited by the Better Business Bureau.

The settlement bars both the individual and corporate defendants involved with the case from future sales of products through a “negative option,” in which the consumer’s silence is interpreted as consent to receive and pay for goods and services. Court orders also bar them from future deception and credit card laundering.

Checks averaging $22.95 will be issued by refund administrator Rust Consulting, Inc. and must be cashed within 60 days. If a consumer believes they lost money to the scheme but has not received a check, they can contact the refund administrator by calling the FTC hotline at 1-877-FTC-HELP (877-382-4357).

Pace Lattin Reports: How to Avoid Common Holiday Scams

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It’s the most wonderful time of the year… for holiday scammers. While everything is merry and bright, people are out there with the sole intent of stealing from you and your loved ones. Protect yourself from fraud and scams this holiday season by taking some of the steps suggested by Chief Marketing Officer at Cyprus Credit Union, David Sant.

Email Scams
Scammers may spoof emails from some of your favorite stores in an attempt to get your credit card information. Never click on links on emails unless you are 100% sure of where they came from. Always go directly to the store`s website by typing in the address.

Website Safety
Before finalizing any online purchase, make sure the URL includes ‘https.’ The ‘s’ stands for secure and there should be a lock icon in the browser bar. Never use a public Wi-Fi spot to enter your credit card or other financial information.

Conduct Research
If you are purchasing from a lesser known seller, make sure they are legitimate before hitting submit. Google the name of the shop or seller with words such as review, complaint or scam. You can also use the Better Business Bureau as a resource.

Gift Card Fraud
In recent years, people have been recording the number of gift cards and then call to see if they have been activated. Although this is a difficult one to avoid, the simplest way is to buy gift cards at the last minute and then spend them as soon as possible when receiving one.

Safe Delivery
One of the biggest targets for scammers during the holiday season is stealing packages off of people`s front porches. You can use services like USPS Package Intercept to have packages redirected to your local post office for you to pick up when you`re ready. There`s also the option of requesting packages be placed somewhere other than your front porch so they`re out of sight. If it`s been a problem in the past, you may want to invest in a security camera pointed at your porch. This way, if something does happen, you have video proof of the perpetrator for the police. Finally, you can always have them delivered to your workplace, keeping packages safe from scammers and curious little eyes in your own home.

Stay Informed
Throughout your holiday shopping, stay on top of all credit card and account information. Take time each week to make sure every purchase is legitimate and was made by you. If you do find evidence of fraud or your card is stolen or lost contact your financial institution as soon as possible.

FTC Issues Influencer Guidelines

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The FTC Building
Sponsored Posts, Paid Reviews - FTC Disclosure Schwag150

Influencer marketing is now a multi-billion-dollar industry used by big brands and small businesses alike. The release of the new guideline which outlines the marketing disclosure requirements by the Federal Trade Commission (FTC) highlights the growth.

The latest guideline from the FTC comes after a similar effort in 2017. This time around, the new document lets users know how to ensure consumers are aware of advertising relationships.  And surprisingly enough, the FTC avoids government-speak and other jargon on the documents. Better yet, the agency also has short videos with easy to digest information.

The guide specifies how and when Influencers should disclose a relationship in connection with a social media post, video, or live stream.  For example, the guide instructs Influencers to place the disclosure in a location where it is hard to miss and to use simple and clear language.  The guide also provides examples of what claims about a product are not permissible for Influencers to make.

According to InfluencerMarketingHub, the frequency of advertising strategies utilizing some of social media’s most popular personalities has expanded exponentially this year. Campaigns across Instagram, Twitter, TikTok, YouTube, Pinterest, Snapchat, and more have been enormously successful for many agencies. With such a booming sub-category of marketing, the FTC’s new regulations should come as no surprise.

It is important to note this is a living document with real-life consequences for violators. And as it is prone to do, the government will make an example of some violators. So, don’t let it be you; follow the rules and you won’t have anything to worry about.

Pace Lattin Fights The Scammer

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Pace Lattin Fights Scammers for Years

Originally Published in USA Herald. In the Internet space there is one guy who has for almost two decades exposed scammers, and stood for ethics in marketing even when faced with enormous pressure from those who would do him harm. We originally discovered Pace Lattin almost a 8 years ago, when he was targeted by blackmailers that insisted on spreading rumors about him, posting false allegations against him unless he paid them hundreds of thousands of dollars. He refused to do so – and in the end one of his blackmailers even killed himself rather than go to jail.

He’s still at it years later, taking down all sorts of scammers and fraudsters, exposing them in his own website at PACEDM.com and other publications.

He had a few minutes out of his busy schedule to sit down with us, and we asked him about what he is doing with himself and the state of the marketing industry:

USAH: First of all, what is the current state of fraud in online marketing?

Pace Lattin: It’s worse than ever. Companies like Facebook and Twitter uses to actually seem to care a bit about scams on their sites when they started and for their first few years. Now they only pretend to actually want to stop the scams – because they know billions and billions of dollars are spent on ads from questionable sources. As long as someone pays their bill, and it doesn’t interfere with their system, they’ve done almost nothing to prevent someone from running scammy ads.

USAH: Do you have any stories about Facebook?

A few years ago I was at a Wynn Nightclub with some major facebook marketers. They were putting down at least $50,000 at the nightclub, were with a bunch of paid girlfriends – and one of the supervisors at Facebook’s ad division. The guy was so high and drunk at the time that he tripped over himself, went sprawling all over the place.  He spilled his briefcase, and money spilled out of it, all $100’s. The people there admitted he came to Vegas all the time to take bribes.

USAH: What can marketers do to prevent fraud?

Ask around: If they really care, they can find out who the fraudsters are, and not work with them. It’s probably the first step in working in this industry. It’s not that hard: make a list, ask others, and then take notes about what every company says about potential partners. Additionally, you can always (smile) hire me.

USAH: Are their any companies you recommend for fraud protection?

Not anymore – as they have all been bought out, and worse, paid off. Some of them are nothing more than technology that was good a decade ago, while the fraudsters have become more and more sophisticated. A really easy way to monitor all potential fraud is to look at metrics, and run some back end ROI algorithms. If there is a bunch of clicks, and zero conversions compared to a normal campaign where there would be tons of conversions, it’s likely fraud. Put that in your contract that you expect normal metrics that are found on most legitimate advertising platforms.

Read Pace Lattin’s articles on SiteProNews

Brands will Lose Billions in Fraud During Holidays

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According to the Arkose data of the 30% increase is digital fraud, 70% were from bot-driven account registrations. Those fraudulent accounts are used, in many cases, by cybercriminals to ‘test’ stolen credentials from consumers. Some also use fraudulent accounts to try to get into the data mines of big corporations. Account registrations are not the most-attacked consumer touchpoint.

“One thing is clear: the way fraudsters are weaponizing compromised data from recent high-profile breaches highlights the deep connectivity of the global cybercrime ecosystem that goes way beyond selling stolen data or knowledge sharing. One attack is a precursor to another attack, and they can be in two different industries, across two different geographies,” said Kevin Gosschalk, CEO of Arkose Labs.

“As we head into the holiday season, customer acquisition is top of mind for retailers. Fraudsters know this and will exploit the pressure companies are under to open new accounts and maximize conversion rates,.”

Other interesting data from The Q4 Fraud and Abuse Report out from Arkose include:

▪ More fraudsters are testing consumer credentials for social networks, tech websites, and gaming website in their search for identities to exploit
▪ During Q3 experts saw a 30% increase (QoQ) in account takeover attacks in retail
▪ 81% of retail takeover attacks were for fraudulent payment transactions

“Identity is the new global currency, which explains why fraudsters are prioritizing valuable resources to test and validate identities across disparate industries,” said Vanita Pandey, VP of Strategy at Arkose Labs. “As we enter the next stage of the post-breach era, when identities have been compromised en masse and fraudsters have access to behavioral information on consumers through hacked accounts, it has never been more difficult to validate digital identity. Intelligent step-up challenges can be the missing link to clarify whether an online identity has been corrupted by fraudster or is being exploited by organized sweatshop activity.”

Researchers also saw an increase is human-driven fraud, meaning those attacks perpetrated by a single person rather than a bot-farm or sweatshop. These attacks increased about 33% Q0Q; researchers also found that about 1 in 3 attacks on financial institutions like banks are human-driven.

Affiliate Marketing Scam Targets Cosco Members

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Costco is warning of a scam circulating online.

The store took to Facebook on Tuesday to clarify that it’s not giving away $75 coupons, despite several posts saying otherwise.

The store says this isn’t the first time this scam has popped up on social media either.

“While we love our fans and our members, this offer is a SCAM, and in no way affiliated with Costco,” wrote Costco. “Thanks to our fans for letting us know about this recurring hoax!”

The scam in question claimed to offer free $75 Costco coupons in honor of the company’s anniversary. Users were instructed to click particular links, which brought people to web pages not operated or sponsored by Costco, according to Snopes.com .

Users were then reportedly encouraged to spread the scam further by sharing the pages and writing “thank you” in the comment field. After that, Snopes says people were asked to input a fair amount of personal information.

 

Affiliates Could Get Amazon in Trouble with Feds

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The FTC Building

Public Citizen called on the US Federal Trade Commission (FTC) to investigate Amazon for what it calls an “apparent failure” to ensure members of its affiliates marketing program disclose they receive commissions on sales generated, specifically related to Prime Day endorsements.

According to the organization’s press release on Citizen.org, “Although Amazon instructs associates to disclose online their relationship to Amazon, this instruction is often not prominent on the associates’ website, and it appears to be frequently and routinely flouted.”

Public Citizen called the practice “disguised advertising,” and its president Robert Weissman stated in the press release, “When people see a recommendation for an Amazon Prime Day ‘best buy,’ they have a right to know if the person or company making that recommendation is getting a cut on the sales it is generating – but all too often that information is not disclosed.”

In its complaint, Public Citizen says it compiled a collection of Amazon Prime Day recommendations and attached the list to its letter, “including 15 web-published articles that include no disclosure, four web-published articles that contain non-prominent disclosures, and 53 Instagram postings that include no disclosure and 22 with inadequate disclosures.”

In reporting on the complaint, Business Insider said an Amazon spokesperson told it that any associates who don’t follow its guidelines are subject to action and could see their accounts closed. “The spokesperson also said that Amazon monitors associates to ensure that the rules are being met.”

Deputy Director of Republican Party of San Diego Scammed $50 Million to Get Trump Elected

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If someone asks you to rent your FB account promising thousands of dollars in rental money to you, although it is tempting, it is an elaborate scam that was started by CEO and founder of Ads, Inc named Asher Burke in 2015 – just in time for the 2016 election season. 

Burke was at that time the deputy political director of the Republican Party of San Diego California. As owner Ads, Inc he was in a great position of influence. 

The scams generated over $50M in revenue to him and his 20 employees, and he claims he paid rental fees to thousands of Facebook users – But it all came with a catch: ] getting Donald Trump elected as President at any expense. 

The financing was paid to Ads, Inc and involved baiting FB users into a subscription trap which means signing up for one trial offer and getting locked into a monthly fee that was impossible to cancel until you canceled the credit card itself. 

The second scam was renting FB accounts to run ads (political, scam products, etc) – which accounts for so many cloned accounts that were so prevalent at the time.

There were so many black hat actors like Cambridge Analytics and Ads Inc that Donald Trump was confidently able to brag that there was no way people wouldn’t vote for him by the time all the ducks were lined up in a row.

Asher Burke very smartly kept his name aside from all this if any raid of FTC occurs, it’s his partner Ralph who will suffer or if it is about the seizure of assets then the assets of Ralph and Winston, head of the rented accounts, will be under consideration.

The process of securing Facebook accounts is also a masterpiece, the employees of Ads Inc. or Winston didn’t pitch directly to people but built up a network of women-who worked for them and that network was named Stay-At-Home Moms. It was a multi-level marketing and social media manipulation business in which he has hired these remote workers called ‘bundlers’ to post messages to Facebook to recruit families and friends to rent their accounts.

In return for the Facebook logins, the account holders got $10 initially and between $15 and $30 later. Once someone agrees to rent their respective Facebook accounts, then the owner of the account has to change the settings to run the ads, document each step with screenshots and then they receive Raspberry Pi computer which is ultimately attached to their home router, through which Ads Inc. managed all the ads and they got unlimited access to person’s personal account.  That’s how Ads Inc. hides from getting caught because there is no evidence of placing ads by Ads Inc.

Facebook’s “Account Switcher” requires no additional logins or password and it is a back door for bad actors to use your account without you ever knowing — unless you habitually check your LOGINS to see if there is activity at a time when you were not on your device OR if you leave tons of OPEN login sessions that bad actors can use at the same time you are on Facebook.

Even Stranger, right after this scam was exposed and he started to be questioned by the FBI and local police, he died in a mysterious helicopter crash in Kenya — with his body so mangled that identification was impossible to do.

Of course, conspiracy theorist point out that his father then took over the company, and tried to “make it legit” right after, leading many to believe he faked his own death and escaped to some offshore haven to keep his money.

Sandra Bullock and Ellen Suing Scammy Affiliates

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 Ellen DeGeneres and Sandra Bullock have teamed up to take on the so-called “celebrity endorsement theft industry.” Their lawsuit filed Wednesday seeks to expose 100 anonymous individuals and entities that fraudulently sell health and beauty products using the celebrities’ names, images, and likenesses without permission.

The entities, which earn money by directing traffic to e-commerce sites in the affiliate marketing industry, are accused of using fake quotes by the stars in an effort to hawk everything from miracle weight loss solutions to anti-aging creams, per the Hollywood Reporter.

The stars’ lawyers are seeking an injunction and compensatory damages.

One ad for an anti-aging cream used an image of Bullock appearing on The Ellen DeGeneres Show alongside fake dialogue, according to the suit. Another ad from the same entity showed DeGeneres claiming she didn’t need makeup because of a special serum.

“These companies change names frequently, merge in and out of entities formed in states that allow for secrecy, operate websites that pop up and disappear overnight, and generally do everything possible to ‘stay one step ahead of the sheriff,'” the lawsuit reads, per the GuardianThe outlet notes the entities, which often use websites designed to look like real news reports, “can now be uncovered with subpoenas.”

Both Sandra Bullock and Ellen DeGeneres are seeking a court order to block further advertisements and financial damages.

Legal: California Governor Passes Data Broker Registration Law

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If compliance with the California Consumer Privacy Act isn’t enough to fill marketers’ compliance plates, California Governor Gavin Newsome has signed a number of proposals to amend the CCPA. One of them requires “data brokers” to register in a directory maintained by the California Attorney General.

The amendments are intended to replace or supplement the statutory text of the CCPA and were preceded by draft regulations released by the California Attorney General. The new regulations broadly cover seven topics, including, notices to consumers, how to handle consumer requests, how to verify the identity of consumers making requests, service provider restrictions, data metric compilation, minors’ personal information and non-discrimination.

The data broker that amends the CCPA is Assembly Bill 1202 and, while it is broader that its Vermont counterpart, it joins Vermont as the second state in the nation with such a law.

“Data Broker” Defined

“Data broker” is defined as “a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a ‘direct relationship.’” The law defines “data broker” in a non-traditional sense and there is some debate about what constitutes a “direct relationship.”

Other definitions, including, but not limited to, “sale” and “personal information” are extremely broad and reference the definitions set forth in the CCPA. Note that the definition of “personal information” in the CCPA exceeds the common definitions. Consult with a privacy lawyer to discuss the scope of these critical terms and how to comply with the CCPA, including the new data broker registration law.

Registration Requirement

Data brokers will be required to register with California’s Attorney General for a fee and provide various bits of information that will be included on a publicly available directory, such as the data broker’s name and primary physical, email and Internet website addresses.

Data brokers will be required to register by January 31 of each year. The failure to do so will expose data brokers to injunctive relief and civil penalties of $100 a day, plus investigation costs.

The data broker registration amendment was passed as a vehicle to allow consumers to exercise their deletion and opt-out rights provide by the CCPA.

The CCPA becomes effective January 1, 2020.

If you are interested in learning more about this topic or ensuring that your business is compliant with state and federal data privacy legislation, please email the author at rnewman@hinchnewman.com.

Hinch Newman works with digital marketers to achieve compliance with data privacy laws, such as the CCPA and its data mapping, privacy policy, website disclosure and data broker registration obligations.

Informational purposes only. Not legal advice. May be considered attorney advertising.

Don Batsford, Jr., Legit Expert

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Works for: Google
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Wendy Ang, Scam or Legit Expert?

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Works for: WK Forest Reserve and Campgrounds
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Susan Bratton

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Works for: The20, LLC.
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Data, Dance, and Daring Campaigns: Erin Levzow’s Approach to Building Loyalty

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How Mango Habanero, Metrics, and Masterful Moves Redefined Marketing Genius Every so often, a guest comes along who doesn’t just raise the bar—they throw it into orbit. Erin Levzow is one of those guests. From the moment she joined The ADOTAT Show, it was clear we were in the presence of brilliance. Erin is a marketing powerhouse, blending emotional intelligence with razor-sharp strategy, all wrapped in a package of humor, humility, and dazzling storytelling. She’s the...

Streaming’s Big Lie: The Future of TV Is Already Broke

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Streaming was supposed to be the savior of TV—the rebellious new kid with no commercials, endless content, and an open bar of binge-worthy dopamine hits. But, as Doug Shapiro’s sharp, no-BS research reveals, the revolution is out of cash and looking for a loan. Streaming doesn’t just monetize less—it barely monetizes at all. For every streaming dollar generated, old-school pay TV is making it rain with three dollars in subscriber fees and seven dollars...

How to Narrow the Scope of Information Sought by an FTC Civil Investigative Demand (CID)

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A civil investigative demand (“CID”) is the instrument by which the Federal Trade Commission exercises its compulsory process authority in connection with investigations.  CIDs may require the production of documents - including electronically stored information – or tangible things, the provision of testimony, and the providing of written responses to questions. A CID must state the nature of the conduct constituting the alleged violation which is under investigation and the provision of law applicable to...

Did Your Company Receive a Letter From the FTC?  FTC Warning Letters and Notices of Penalty Offense

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Recipients of FTC warning letters and notices of penalty offense should be on high alert and act quickly. Their advertising and marketing practices could be in violation of applicable legal regulations. What is an FTC Warning Letter? Federal Trade Commission “warning letters” are intended to warn companies that their conduct is likely unlawful and that they can face serious legal consequences, such as a federal investigation or lawsuit, if they do not immediately stop. ...

The Good, the Bad, and the SPO-ly

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The Hidden Flaws Behind Ad Tech’s Favorite Buzzword. Supply Path Optimization (SPO) is my love-hate relationship in ad tech personified. It’s the reason I fell for this industry’s maddening brilliance—and why it sometimes feels like a bad rom-com where no one learns their lesson. At its core, SPO promises efficiency, transparency, and accountability, and when it works, it’s like watching a Rube Goldberg machine perform flawlessly. But when it doesn’t—and let’s be honest, that’s most...