UK regulator has fake reviews in its sights
The Digital Markets, Competition and Consumers Act 2024 (DMCCA) [Digital Markets, Competition and Consumers Act 2024] has both increased consumer protection rights in the UK and the enforcement powers of the main consumer regulator, the Competition and Markets Authority (CMA) which for the first time has been granted wide-ranging powers to investigate suspected breaches of consumer law and unilaterally impose significant fines. Prior to the DMCCA the CMA had to go via the courts for a business to face fines, a power that was exercised infrequently [A New Era for Consumer Law and Regulation | Global IP & Technology Law Blog].
One of the many areas in which the DMCCA has increased and clarified consumer protection rights are fake reviews and reviews which conceal the fact that they have been provided in return for an incentive (whether monetary or otherwise) (banned reviews). The new rules apply to banned reviews however those are made available, whether online or otherwise.
In particular, the DMCCA has introduced specific new offences of submitting or commissioning a banned review, offering to procure a banned review and offering services that facilitate the submission, commission or publication of a banned review.
However, for legitimate traders who display or make available consumer reviews in any media (classified under the DMCCA as a “publisher”) one of the biggest changes is a new positive obligation to take effective action to prevent banned reviews appearing. That obligation includes requirements to: (1) have a clear policy on the prevention and removal of banned reviews; and (2) assess the risk of banned reviews appearing and take such further proactive steps as are “reasonable and proportionate” to address any risks that are identified.
In April the CMA published statutory guidance on the sort of measures which it expects publishers to have in place. That guidance makes clear that the CMA does not consider there to be a ’one size fits all’ or ’tick box’ approach that is appropriate for all publishers. As such, the regulator accepts that what is appropriate for one publisher might not be right for another [CMA208 – Fake reviews guidance]
Since publishing this guidance, the CMA has moved into enforcement territory -initially focused on the big players in the consumer review market. Indeed, earlier this year, the CMA secured undertakings from Google, including an agreement to sanction UK businesses that boost their star ratings with fake reviews as well as sanctioning people who have written fake reviews for UK businesses [CMA secures important changes from Google to tackle fake reviews – GOV.UK] and more recently formal undertakings have been secured from other high-profile brands to enhance existing systems for tackling fake reviews.
However, the CMA is not stopping there and on 6 June announced that in its next phase of work to tackle fake reviews it will be looking into the conduct of other players across the sector to determine whether further action is required [Online reviews – GOV.UK]. As part of this phase, the CMA is currently conducting an initial sweep of review platforms to identify those who need to do more to comply with these new requirements. As such, it is likely that many websites which publish consumer reviews but have not yet taken steps to comply with these new requirements will face enforcement action by the CMA if they fail to rectify that.
DOL Rescinds 2022 Guidance Concerning Cryptocurrency Investments in 401(k) Plans
On May 28, 2025, the Department of Labor (DOL) rescinded its 2022 guidance that cautioned retirement plan fiduciaries to exercise “extreme care” in permitting cryptocurrency and other digital asset investments in retirement plans. This rescission signals the DOL will take a more neutral approach to such investments, but plan fiduciaries should continue to evaluate and monitor plan investment options in accordance with their general fiduciary duties under ERISA.
Background on Prior Guidance
In 2022, under the Biden administration, the DOL released guidance reminding plan fiduciaries that “fiduciaries must act solely in the financial interests of plan participants and adhere to an exacting standard of professional care” and advising plan fiduciaries to exercise “extreme care” before including a cryptocurrency option in a retirement plan’s investment menu.
The DOL looked at the following characteristics of cryptocurrency when it issued its 2022 guidance:
Extreme price volatility resulting from fictitious trade reporting and speculative valuation methodologies;
Increased vulnerability due to lower security for cryptocurrency accounts, resulting in an increased risk of hacking and theft; and
Uncertainty in the regulatory environment regarding cryptocurrencies, which could result in the 401(k) plan engaging in unlawful trading.
Impact of 2025 Recission
The 2025 guidance no longer advises plan fiduciaries to exercise “extreme care” before including a cryptocurrency option in a retirement plan’s investment menu, but does emphasize that a plan fiduciary’s decision should be context-specific and consider all relevant facts and circumstances. What has not changed is that plan fiduciaries are still required to act with care, skill, prudence and diligence in both the initial selection and continuous monitoring of investment options, including digital assets. As such, we may begin to see more cryptocurrency-based investment options, especially if plan participants demand them and plan fiduciaries can get comfortable with such offerings.
Plan fiduciaries should continue to thoroughly review investment selections and diligently document their decision-making process.
Pay the Price, Now ‘Fess Up’: Reporting Obligations for Ransomware Payments Are Live
As of 29 May 2025, the requirement on businesses to report ransomware payments they make has come into effect.
What is the Requirement?
If a reporting business entity becomes impacted by a cyber security incident and ends up making a ransomware payment in response to the incident, the business must report the ransomware payment to the designated government agency within 72 hours after making the payment or becoming aware that the payment was made. Entities who do not produce a satisfactory report within the required time can be liable to a civil penalty of almost AU$20,000.
Who Does it Apply to?
‘Reporting business entities’ – generally those with over AU$3 million turnover. Certain entities under the Security of Critical Infrastructure Act 2018 are also within scope.
Who do you Produce the Report to?
The Australian Signals Directorate (ASD) is the designated Commonwealth body and has an online form for reporting the payments.
What Happens to the Report?
There are also restrictions on the ASD and other government agencies from using the report for other purposes (such as in investigating or enforcing a breach of the Privacy Act in connection with the relevant incident).
Final Thoughts
We note that the ASD urges businesses to never pay a ransom, as there is nothing keeping cyber criminals from honouring their word. Despite this, businesses may find themselves in circumstances in which this sound advice may not always be practical, and the legislation reflects the reality that such payments are often made. According to a McGrathNicol survey, the average cyber ransom payment cost Australian businesses AU$1.35M in 2024 with only 1 in 10 businesses saying they would not pay under any circumstances.
Above all, this new reporting requirement reinforces the importance of conducting cyber health checks and maintaining an updated Data Breach Response Plan.
FDA Ratchets Enforcement on Social Media Promotion in New Warning Letter
This week, the U.S. Food and Drug Administration (“FDA”) Office of Prescription Drug Promotion (“OPDP”) posted a warning letter (the “Letter”)[1], issued on May 29, 2025, to Sprout Pharmaceuticals, Inc. (“Sprout”) and its CEO, Cindy Eckert (“Eckert”), regarding a social media post promoting ADDYI® (flibanserin) (“Addyi”). According to FDA, the now-flagged Instagram post, shared by Eckert, touted Addyi’s benefits but left out crucial safety information and important details for the indicated population. There is a lot to unpack with this Letter and FDA’s manner of issuance, but as previewed in our prior blog posts this year, we believe this to be yet another example of FDA’s enhanced focus on drug advertising and promotion. Expect to see more warning letters—especially via social media advertising and promotion, actions directed at executives or personal social media accounts, and other creative ways the agency can push its mandate—in lieu of written regulation—to police the pharmaceutical industry.
Promotional Content
Addyi is the first FDA-approved medication for premenopausal women struggling with acquired, generalized hypoactive sexual desire disorder (HSDD). However, its use is highly specific—including a limitation of use—and comes with serious safety warnings, including a boxed warning for severe low blood pressure and fainting, especially when combined with alcohol or certain medications.
The Instagram post at the heart of the Letter (the “Post”) was shared on Eckert’s personal account, and included both content from a People Magazine article (the “Article”) and Eckert’s commentary about the Article. FDA made it a point to clarify that it considers a screenshot and user-generated text as one “post,” which is both important for contextualizing this Letter and for understanding how FDA thinks about these increasingly common types of social media posts. FDA found that the Post underscored Addyi’s benefits and big-picture messaging (e.g., “the sex pill for women”) but skipped over critical risks and omitted limitation of use language that Addyi isn’t approved for postmenopausal women, men, or to boost sexual performance in general. FDA’s principal concern, though, was doing this via a high-profile social media platform.
In short, FDA determined that the Post promoted Addyi in broad strokes for women’s sexual health, left out required safety and usage details, and created the impression that the product is safe and effective for a broader group than what FDA has actually approved.
Prior Warning to Sprout
This isn’t FDA’s first warning to Sprout; a previous warning letter in 2020[2] focused on a radio ad for Addyi that, in FDA’s eyes, touted Addyi’s benefits for women affected by HSDD but skipped over many of the drug’s risks and key limitations. For instance, the FDA found that the advertisement only briefly mentioned low blood pressure and fainting, but didn’t explain what the FDA views as bigger risks—like how drinking alcohol close in time to taking Addyi makes these dangers much worse. Also, according to the FDA, the ad left out the fact that certain prescription meds or liver problems can seriously increase the risk, and didn’t mention some other risks entirely. In short, the FDA viewed the presentation of information to be false and misleading with respect to risk and scope of Addyi’s approved uses.
FDA called out nearly identical issues in this year’s Letter, providing even more reason for FDA to be concerned, and suggesting that FDA feels the company hasn’t learned from past missteps.
Takeaways
Risk Presentation and Social Media Platforms
Failure to present risk information has historically been, and remains, low-hanging fruit for FDA enforcement. As we covered towards the end of 2024,[3] social media is a platform for promotional content that is of growing concern for the FDA. All told, it is unsurprising that an Instagram post promoting an FDA-regulated product, but providing no risk information, was the subject of FDA scrutiny. However, there is more nuance here than meets the eye.
The Post from Eckert’s personal account includes a screenshot of the Article about Addyi, which makes some of the claims that the FDA takes issue with, including “the sex pill for women” and “Addyi is the first FDA-approved treatment for women’s sexual dysfunction.” The Post also includes Eckert’s commentary to the Article that makes an additional claim that FDA takes issue with: “[t]he first articles on @addyi a decade ago questioned the women struggling, told them it was normal, debated how many more satisfying sexual events were enough for them to deserve a pill…” Of course, there are two forms of content at issue here: the Article and Eckert’s own commentary, but the FDA views them as one. FDA makes this clear in a footnote, but the concept is historically well-understood among advertising and promotional committees. In short, reposting/endorsing/liking third-party communications about a product, and in some cases (like here) providing commentary about the product and the reposted content, will be viewed as one communication by FDA, so explicit and implied claims related thereto should be considered.
In examining the Post and FDA’s analysis, a few major points stand out regarding risk and omission of material information.
Fair Balance
The Post, on its surface, is clearly well-intentioned—aimed at breaking the stigma around HSDD and encouraging open conversation about an often-overlooked issue. The Post, particularly through Eckert’s commentary, spotlights the value of personal storytelling from women living with HSDD, and praises the efforts of the couple highlighted in the Article. However, under FDA regulations, any communication that mentions a drug by name (in this case, Addyi) and makes reference to its use (sexual dysfunction), either explicitly (such as “sex pill for women”) or implicitly (for example, by discussing how the product affected a couple’s marriage), triggers specific promotional requirements. In particular, FDA rules require a fair balance between information about the drug’s benefits and its risks.
In this instance, the FDA noted a complete absence of fair balance. The post fails to mention any of Addyi’s safety risks or provide the full FDA-approved indications. This omission is especially concerning to the FDA, given that Addyi carries a boxed warning for risks such as severe hypotension and loss of consciousness, particularly when used with alcohol. The Letter specifically called out the lack of this critical safety information. Had Addyi not been a boxed warning product, the absence of safety information might have resulted in a less severe FDA response if there had at least been a brief mention or link to the product’s safety profile.
Limitations of Use
FDA highlights that according to the indications of usage section of the FDA-approved product labeling (“PI”), Addyi is indicated for the “treatment of premenopausal women with acquired, generalized hypoactive sexual desire disorder (HSDD), as characterized by low sexual desire that causes marked distress or interpersonal difficulty,” and is not due to: (1) a co-existing medical or psychiatric condition; (2) problems within the relationship; or (3) the effects of a medication or other drug substance. Further, FDA noted that Addyi is not indicated for postmenopausal women, men, or to enhance sexual performance.
There are two key omissions noted by the FDA with respect to the PI. First, according to the FDA, the post failed to disclose Addyi’s limitations of use. Second, and perhaps more subtle, is that, in FDA’s eyes, the broad claim “sex pill for women” suggests that Addyi enhances sexual performance and may be used by “women” in general, as opposed to premenopausal women, as indicated in the PI. FDA’s concern stems from the same principle discussed earlier: once a drug and its use are mentioned, promotional rules apply, requiring that the content accurately present the drug’s approved indications and not mislead consumers. In this instance, the FDA may believe the post creates the impression that Addyi is suitable for all women seeking sexual enhancement, regardless of age or underlying conditions, when in reality, its approval is limited to a specific patient population.
Ultimately, this case serves as a cautionary example: even content intended to reduce stigma or advocate for patients on social media is subject to FDA rules on drug promotion. Any mention of a prescription product’s name, plus its use or benefits, requires the communicator to provide balanced disclosure of safety risks and approved indications.
Julian Klein, a summer associate in the firm’s New York office, contributed to this article.
FOOTNOTES
[1] Warning Letter available here: Sprout Pharmaceuticals, Inc. – 709942 – 05/29/2025 | FDA
[2] 2020 Warning Letter available here: Sprout Pharmaceuticals, Inc – 610569 – 08/31/2020 | FDA
[3] 2024 article available here: Key Takeaways From FDA’s Latest Social Media Warnings – Law360
CERTIFICATION DENIED IN TCPA JUNK FAX CASE: Court Rules Online Fax Services Do Not Violate The TCPA’s Unsolicited Fax Provisions, Thereby Causing The Class To Fail Both Ascertainability And Predominance Requirements
On June 5, 2025, in Richard E. Fischbein, M.D. v. IQVIA, Inc., the U.S. District Court for the Eastern District of Pennsylvania issued a major ruling that denied certification in a TCPA junk fax case AND further confirmed that the TCPA’s protections only apply to traditional fax machines, not to online fax services. No. CV 19-5365, 2025 WL 1616793 (E.D. Pa. June 5, 2025). The court held that the TCPA’s unsolicited fax provisions apply only to faxes received on traditional, stand-alone fax machines, not to modern online fax services. Because determining which type of equipment each potential class member used would require extensive individual inquiries, the court found the proposed class was neither ascertainable nor suitable for class treatment.
This ruling comes as no surprise. As we have seen the Fourth Circuit enter a similar ruling in Career Counseling, Inc., d/b/a Snelling Staffing Services v. Amerifactors Financial Group, LLC., 2024 WL 220377.
FAX CLASS STILL DENIED: COA Affirms Denial of Class Certification Finding Online Fax Services Not Covered under the TCPA – TCPAWorld
The case was initiated by Dr. Richard E. Fischbein, who sought to represent a class of potentially more than 25,000 healthcare providers. The lawsuit alleged that the health information company IQVIA, Inc. had sent unsolicited fax advertisements between 2016 and 2018, inviting medical professionals to participate in a “National Healthcare Census” in exchange for reward points. Dr. Fischbein argued that these faxes constituted “unsolicited advertisements” transmitted without the recipients’ prior consent, which is prohibited by the TCPA.
The TCPA defines “telephone facsimile machine” as “equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper.”
The court found that the definition is unambiguous and that the language contemplates a stand-alone piece of equipment with the built-in capacity to print. The court concluded that this interpretation is supported by the law’s distinction between the broad range of equipment that can send a fax (“telephone facsimile machine, computer, or other device”) and the single type of equipment protected from receiving one (a “telephone facsimile machine”). As such, it held that “the plain language of the TCPA protects only those who receive unsolicited advertisements on a stand-alone fax machine.”
And this statutory interpretation created the central problem for class certification: ascertainability.
To be certified, a class must be identifiable through a reliable and administratively feasible mechanism. Here, that meant the plaintiff had to have a way to determine which of the potentially 25,000 class members received the disputed faxes on a stand-alone machine. The plaintiff’s own expert testimony proved fatal to this requirement. The court quoted the expert’s deposition, where he was asked if there was a reliable method to determine the receiving equipment used. He responded, “Not consistently, no.” He further, more or less, conceded that the only way he can think of to determine the receiving equipment used would be through an “individualized inquiry asking each intended recipient whether they received the fax via online fax service provider.”
In light of this testimony, the court found that “the only way to determine which health care providers received faxes by way of a traditional, stand-alone faxmachine is through ‘extensive and individualized fact-finding.’” And as such, the court ruled that the class was deemed not ascertainable.
The failure of ascertainability also directly led to the failure of Rule 23(b)’s predominance requirement. This rule requires that questions of law or fact common to the class must predominate over questions affecting only individual members.
The court found that the question of what type of equipment a recipient used was a “core component of liability” that could not be answered with common evidence. Because this essential element required an individualized inquiry for every potential class member, the court concluded that individual issues would overwhelm any common ones. Ultimately, because the type of receiving equipment was an individualized question as to an essential element, the court found that plaintiff failed to meet the predominance requirement.
So because it failed to meet the ascertainability and predominance requirements, the court denied class certification.
SAG-AFTRA Strikes Back: Files ULP Over AI Darth Vader in Fortnite
On May 19, 2025, the Screen Actors Guild‐American Federation of Television and Radio Artists (“SAG-AFTRA”)—the union representing actors, voice artists, and other media professionals—filed an unfair labor practice charge against Llama Productions, a subsidiary of Epic Games, over the use of an AI-generated voice for Darth Vader in Fortnite. The heart of the dispute isn’t the technology itself, but the process: SAG-AFTRA alleges that Llama Productions unilaterally changed employment terms by deploying AI-generated voices without notifying or bargaining with the union.
The controversy centers on the iconic Darth Vader character, whose voice in Fortnite is now generated by an AI model trained on the late James Earl Jones’ voice. Although Jones reportedly signed over the rights to his voice before his death in 2024, SAG-AFTRA argues that Epic Games sidestepped its collective-bargaining obligations by using AI to replace union-covered voice work without negotiation.
This case highlights the growing tension in entertainment over AI’s role in replicating or replacing human performers, especially for legacy characters and posthumous performances. The outcome could set a major precedent for how AI is used in video games and other media, shaping the future of labor rights in the digital age.
At the core of disputes like this is the language found in collective bargaining agreements—particularly in management-rights clauses. The contractual language can either permit or restrict employers from introducing new technologies, such as AI, into the workplace. The clarity and specificity of these clauses are increasingly vital as technology continues to reshape the workplace.
PLAUSIBLE: Court Holds Allegations of “Identical” Voicemails Sufficient Allegation of Prerecorded Call Usage
The TCPA’s ban on “prerecorded or artificial” voice calls has often been applied to prerecorded or artificially-generated voicemails.
Remains unclear to me whether that is the proper application of the statute– the TCPA appears to only govern calls made to “deliver a message” in connection with calls to landline and not cell phones– but that is certainly the majority view.
What qualifies as sufficient allegations of prerecorded voicemail usage has varied over time, however. Some courts require quite a bit of specifics. Others less so.
In Taylor v. Kit Insurance, 2025 WL 1651524 (N.D. Ill June 10, 2025) the Court found allegations of identical messages to be sufficient to claim the voicemails were prerecorded in nature.
In Taylor the defendant challenged Plaintiff’s allegations as insufficient because they did not, for instance, provide a complete transcript of the challenged call. The Court was unconvinced and determined the allegations plaintiff provided were fine:
Here, Plaintiff has plausibly alleged that Defendant used a prerecorded voice. First, Plaintiff alleged that the two voicemails she received were identical in tone, voice, content, and style. Second, she alleged others have complained about receiving the same call. Third, she alleged that the voicemails were generic (meaning, presumably, that they did not use Plaintiff’s name or other identifying information) and had the exact same file size. Accepting these facts as true and drawing all reasonable inferences in Plaintiff’s favor, Plaintiff has plausibly alleged that the voicemails she received were prerecorded in violation of the TCPA.
Pretty straightforward.
Interestingly, however, the Court did agree with the Defendant that Plaintiff had failed to plead facts justifying injunctive relief in the case:
Here, Plaintiff’s allegations do not support the inference that she is at risk of a repeated injury. Plaintiff alleges two calls within the span of a single month. These isolated prior harms, without more, offer the Court no basis to conclude that Plaintiff is likely to receive another pre-recorded call from Defendant in the future. Nor does the complaint plausibly allege that any class member has a real and immediate threat of repeated injury. Plaintiff’s allegations with respect to class members are extremely thin, based “upon information and good faith belief” that Defendant “routinely” uses pre-recorded voicemails, and that others have complained about receiving the same call that Plaintiff received. There are no allegations that these proposed class members have received repeated or continuing pre-recorded calls. For these reasons, Plaintiff has not plausibly alleged her standing to pursue injunctive relief under the TCPA.
While this is certainly a nice outcome for the defense I am on the fence on whether challenging injunctive relief allegations are really worth it in the context of a TCPA case. Can’t think of any litigated cases that have resulted in injunctive relief, and most courts will strike (and most Plaintiffs drop) injunctive relief at the class stage. So it kind of seems like a waste of money.
Still a win is a win, and I am sure Kit is pleased to have drawn first blood here.
China’s State Administration for Market Regulation Announces 7 Typical Cases of Trademark Administrative Enforcement for 2024
On June 10, 2025, China’s State Administration for Market Regulation (SAMR) announced the 7 Typical Cases of Trademark Administrative Enforcement for 2024 (市场监管总局公布7件商标行政执法典型案例). Administrative enforcement provides an alternative route to IP litigation and criminal prosecution but does not provide damages. Note that administrative enforcement is not mutually exclusive to litigation and criminal prosecution – all three mechanisms may be used and administrative enforcement cases are regularly referred for criminal prosecution.
Regarding the cases, SAMR explained that “in 2024, local market supervision departments carried out in-depth special law enforcement actions to protect intellectual property rights, equally protected the legitimate rights and interests of Chinese and foreign trademark rights holders, effectively safeguarded the legitimate rights and interests of consumers, and achieved positive results.”
As explained by SAMR:
Case 1: The Market Supervision Bureau of Changshu City, Suzhou City, Jiangsu Province investigated and dealt with Suzhou Kaidong Garment Accessories Co., Ltd. for producing and selling goods that infringed the exclusive right of the “YKK” registered trademark
In March 2024, the Market Supervision Bureau of Changshu City, Jiangsu Province investigated and dealt with the case of Suzhou Kaidong Clothing Accessories Co., Ltd. producing and selling goods that infringed the exclusive rights of the registered trademark “YKK”. The parties’ actions were suspected of constituting a crime and the case has been transferred to the public security organs for handling.
In January 2024, when investigating a case in which an online store opened by Suzhou Ziyin Clothing Co., Ltd. was suspected of selling infringing clothing, Changshu Market Supervision Bureau found important illegal evidence of upstream suppliers, and organized a team of personnel to investigate. On March 21, Changshu Market Supervision Bureau and the public security department inspected Suzhou Kaidong Garment Accessories Co., Ltd., and found 1,261 zippers with the “YKK” logo and more than 1.08 million zipper heads with the “YKK” logo on site. After identification by the right holder, they were all goods that infringed the exclusive right to use a registered trademark. Upon investigation, the illegal business volume of the party concerned was more than 1.5 million RMB. The party’s behavior violated the provisions of Article 57 (3) of the Trademark Law of the People’s Republic of China and was suspected of constituting a crime. In accordance with the provisions of Article 27, paragraph 1 of the Administrative Penalty Law of the People’s Republic of China and Article 3 of the Provisions on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Agencies, Changshu Market Supervision Bureau transferred the case to Changshu Public Security Bureau for handling.
This case involves many people, a wide geographical area, and a large amount of money. The criminals have a clear division of labor, forming a complete black industry chain of counterfeiting and selling fakes. The Changshu Municipal Market Supervision Bureau and the Municipal Public Security Bureau set up a special task force for the “YKK” series of cases to severely crack down on the black industry chain of counterfeiting and selling fakes, and protect intellectual property rights and consumer rights.
Case 2: Shanghai Yangpu District Market Supervision Bureau investigated and punished Shanghai Aidoujun Culture Communication Co., Ltd. for facilitating the infringement of others’ exclusive rights to registered trademarks
In September 2024, the Yangpu District Market Supervision Bureau of Shanghai imposed administrative penalties on Shanghai Aidoujun Culture Communication Co., Ltd. for the illegal act of facilitating infringement of the exclusive rights of others’ registered trademarks, imposed a fine of 660,000 RMB, and transferred relevant evidence of counterfeit sales to the local market supervision department.
In April 2024, when the bureau visited an Internet video platform, it learned that a number of videos promoting counterfeit sports shoes of internationally renowned brands such as Nike and Louis Vuitton had recently appeared. Although the platform had taken management measures such as video removal and account banning, it was unable to accurately locate and combat the dissemination chain because it had no direct communication channels with the trademark right holders. Law enforcement officers quickly contacted the relevant trademark right holders, and with the close cooperation of the trademark right holders and the platform operators, they locked the source of counterfeiting and the promotion and marketing industry chain behind it. Upon investigation, it was found that the party, as an advertising agent, provided traffic promotion services for 4 counterfeit videos without reviewing the video content, and collected a total of 330,000 RMB in promotion fees. The above-mentioned behavior of the party constituted an infringement as stipulated in Article 57 (6) of the Trademark Law of the People’s Republic of China and Article 75 of the Regulations for the Implementation of the Trademark Law of the People’s Republic of China, and the Yangpu District Market Supervision Bureau imposed administrative penalties in accordance with the law.
The sale of counterfeit goods through live streaming is highly concealed and has strong transmission power, and the production, promotion, and sales links are highly dispersed, which brings challenges to supervision. This case promptly cut off the chain of counterfeiters who spread the goods through online platforms and transferred the evidence to the local market supervision department to achieve a full-chain crackdown. After the case, the supervision department convened a meeting with e-commerce platforms and trademark rights holders to smooth the mechanism for exchanging evidence of illegal activity, deepen the cooperative relationship between trademark rights holders and platforms, and achieve win-win development.
Case 3: Guangdong Provincial Market Supervision Bureau organized an investigation into the production and sale of a series of cartoon card products that infringed the exclusive rights of the registered trademark “Kayou”
In 2024, the Dongguan Municipal Market Supervision Bureau of Guangdong Province imposed administrative penalties on 12 parties who produced and sold products that infringed the exclusive rights of a Zhejiang Cultural Communication Co., Ltd.’s “Kayou” registered trademark, including confiscation of the infringing products involved, confiscation of illegal gains, and fines.
On October 23, 2024, the Guangdong Provincial Market Supervision Bureau organized the Dongguan Municipal Market Supervision Bureau and the Dongcheng Branch of the Dongguan Municipal Market Supervision Bureau to carry out special law enforcement actions against 14 places located in Dongcheng Street, Dongguan City that were suspected of producing and selling anime card products that infringed the exclusive rights of the “Kayou” registered trademark of a certain Zhejiang Cultural Communication Co., Ltd. 14 business entities were inspected, and 3,448 boxes of suspected infringing anime cards and 3,884 infringing plastic films with the word “Kayou” were seized on the spot. The total value of the goods was 136,000 RMB, and 12 cases were filed.
Upon investigation, it was found that the party concerned, without permission, purchased boxed animation card products produced by the trademark right holder, made microholes in the sealed packaging bags of the cards in the boxes, observed them with an endoscope, identified high-grade rare cards, unpacked them, took out the high-grade rare cards, replaced them with ordinary cards, restored the packaging, and re-sealed them with unauthorized printed transparent packaging film with the “Kayou” logo before selling them, thus changing the original physical state of the product, damaging the reputation-bearing function of the right holder’s registered trademark, and violating Article 57, Paragraphs (3) and (7) of the Trademark Law of the People’s Republic of China, constituting an infringement of the exclusive right to a registered trademark.
In this series of cases, the parties’ method of unpacking and replacing the original products fully reflects the characteristics of trademark infringement and infringement of consumer rights in card products. The investigation and handling of this series of cases has significant guiding significance for the relevant law enforcement in this industry.
Case 4: Qingdao Municipal Market Supervision Bureau of Shandong Province investigated and dealt with the case of Shuohe Clothing Studio in the High-tech Zone infringing the exclusive right to use the registered trademark “ERDOS”
In December 2024, the Qingdao Municipal Market Supervision Bureau of Shandong Province investigated and dealt with the case of Shuohe Clothing Studio in the High-tech Zone producing and selling goods that infringed the exclusive rights of the registered trademark “ERDOS”. The parties’ actions were suspected of constituting a crime and the case has been transferred to the public security organs for handling.
At the end of October 2024, based on the report of the trademark owner, the Qingdao Municipal Market Supervision Bureau investigated the suspected production and sale of cashmere sweaters with the “ERDOS” logo and counterfeiting other people’s registered trademarks. On December 24, the Qingdao Municipal Public Security Bureau Shinan Branch jointly conducted an inspection on the parties. 28 cashmere sweaters and 1 pair of pants with the “ERDOS” logo were found on the scene, as well as a large number of counterfeit identification materials, including 2,100 collar labels, 6,880 washing labels, 977 zippers, and 11 mobile phones used for online business. The preliminary judgment was that the amount involved was more than 60,000 RMB. According to Article 27 of the “Administrative Penalty Law of the People’s Republic of China” and Article 3 of the “Regulations on the Transfer of Suspected Criminal Cases by Administrative Law Enforcement Agencies”, the case was transferred to the public security organs for handling in accordance with the law on the same day.
The parties published product information through well-known social platforms and directed traffic to WeChat for one-to-one transactions, which is a new type of illegal online sales behavior. The shipping address, payment address, actual return address, and the identity of the parties are all virtual, and the marketing methods are concealed. Law enforcement officers used “smart supervision” methods such as the Shandong Province Smart Market Supervision Integrated Platform, the Market Supervision Law Enforcement Case Handling System, and the WeChat platform operator evidence collection to crack the virtual identity and address set by the parties, accurately lock the scene, and fix the evidence involved in the case. The provincial, municipal, and county levels have their own division of labor and work together to form a powerful force to protect intellectual property rights.
Case 5: Shanxi Yangquan Market Supervision Bureau investigates and punishes Shanxi Mingjia Paper Co., Ltd. for infringing the exclusive right to use the registered trademark “维达” (Vinda)
In July 2024, the Yangquan Municipal Market Supervision Bureau of Shanxi Province investigated and dealt with the case of Shanxi Mingjia Paper Co., Ltd. producing and selling goods that infringed the exclusive rights of the “Vinda” registered trademark. The party’s behavior is suspected of constituting a crime, and the case has been transferred to the public security organs for handling.
On July 18, 2024, the Yangquan Municipal Market Supervision Bureau of Shanxi Province received case clues provided by Vinda Paper (China) Co., Ltd. The Municipal Market Supervision Comprehensive Administrative Law Enforcement Team, together with the Food and Drug Investigation Detachment of the Yangquan Municipal Public Security Bureau and the Pingding County Public Security Bureau, conducted inspections on the parties in accordance with the law. According to the identification of the right holder, the toilet paper, packaging film, packaging bags, and rolling rods piled in the factory of the party are all commodities that infringe the exclusive right of registered trademarks. After investigation, it was found that since March 2023, the company’s profit model has been to purchase toilet paper raw materials from other places to produce infringing “Vinda” toilet paper, and then sell it online through 4 online stores. A total of 3,580 bags of infringing toilet paper, 215 kg of packaging film and packaging bags, and 2,650 rolling rods were seized on site. Law enforcement officers started by reviewing the on-site production records, and at the same time retrieved the customer order data, delivery statistics, and refund summary data of multiple online stores. Combined with the statements of the parties, it was found that the total value of the goods was more than 3.12 million RMB.
The case involved a large number of goods and production tools, the parties were selling online, the orders were scattered, the authorized and infringing products were mixed, and the value of the goods was difficult to calculate. The key to ensuring that the case was properly investigated and dealt with was that law enforcement officers worked together at multiple levels in accordance with the law enforcement coordination regulations, unraveled the case, quickly found out the illegal facts, found out the amount involved, and transferred it to the public security organs.
Case 6: The Market Supervision Bureau of Qingchuan County, Guangyuan City, Sichuan Province investigated and dealt with a case in which He XX maliciously registered a trademark without the purpose of use
In October 2024, the Market Supervision Bureau of Qingchuan County, Guangyuan City, Sichuan Province imposed administrative penalties on He XX for the illegal act of maliciously registering a trademark without the purpose of use, and fined him 12,000 RMB.
In May 2024, the Market Supervision Bureau of Qingchuan County, Sichuan Province, received evidence from its superiors and launched an investigation into He’s suspected malicious trademark registration. After investigation, it was found that since 2021, the party He XX has registered a shell company (Lei Xiangsen Department Store, Xinluo District) and impersonated others (Jia XX) and other means to entrust a Henan agency across provinces to register 102 trademarks of well-known scenic spots such as “Cuiyun Corridor” and “Emei Mountain”, of which 36 were successfully registered. The characteristics of his behavior are as follows: the registration category has no connection with the business scope, the physical store has no actual operation for a long time, and there is a fact of trademark transfer for profit (illegal income of 4,000 RMB), which constitutes a typical malicious hoarding of trademarks. The law enforcement personnel’s cross-regional evidence collection is complicated, involving multiple parties such as Fujian cluster registration enterprises, Henan agencies, and Xiamen transferees. In response to this situation, the law enforcement personnel immediately launched a cross-provincial joint investigation mechanism, sent three letters to obtain key evidence in Longyan, Luoyang and other places, and locked the fact of shell registration.
This case successfully investigated and dealt with a malicious registration chain spanning the three provinces of Sichuan, Henan and Fujian. It is a typical example of grassroots market supervision departments cracking down on malicious registrations and regulating the order of trademark registrations, and provides replicable law enforcement experience for cracking down on malicious trademark registrations.
Case 7: Market Supervision Bureau of Xunwu County, Ganzhou City, Jiangxi Province investigated and punished Mr. Feng for infringing the exclusive right to use the registered trademark “赣南 (Gannan) Navel Orange”
In January 2024, the Market Supervision Bureau of Xunwu County, Ganzhou City, Jiangxi Province, imposed administrative penalties on Feng XX for infringing the exclusive right to the registered trademark “Gannan Navel Orange”, ordered him to immediately stop the infringement and imposed a fine of 94,500 RMB.
In December 2023, the Market Supervision Bureau of Xunwu County, Ganzhou City, Jiangxi Province received a report that a navel orange fruit processing factory in a certain industrial park had passed off navel oranges produced in Fujian as Gannan navel oranges. After receiving the report, the bureau immediately conducted a law enforcement inspection on the fruit processing factory in conjunction with the county public security bureau. Since October 2023, Feng has purchased 150,000 kilograms of navel oranges from Yongchun County, Fujian Province and transported them to the fruit processing factory in Yangmeikeng Industrial Park, Xunwu County for processing. At the time of the incident, Feng had washed and graded 119,000 kilograms of “Fujian” navel oranges, and sold 10,000 kilograms at a price of 3.15 RMB per kilogram. The remaining 140,000 kilograms of “Fujian” navel oranges had not yet been packaged. When the party sold “Fujian” navel oranges, it affixed the “Gannan Navel Orange” logo on the packaging, infringing on the exclusive right to use the registered trademark of “Gannan Navel Orange”. The illegal business volume was 31,500 RMB, which was a trademark infringement violation as stipulated in Article 57 (2) of the Trademark Law of the People’s Republic of China.
This case aims to protect the legitimate rights and interests of the geographical indication “Gannan Navel Orange” and effectively combat geographical indication trademark infringement and counterfeiting. The case-handling department effectively regulates the market order and promotes the healthy development of geographical indication products through scientific research and timely disposal.
Rules Proposed Under New Jersey Data Privacy Act
On June 2, 2025, proposed rules (“Proposed Rules”) were published under New Jersey’s Data Privacy Act (“NJDPA”). The Proposed Rules elaborate on what constitutes “personal data” and detail a number of compliance obligations, some of which parallel existing requirements under data privacy laws in California and Colorado.
Like many other state data privacy laws, the NJDPA defines personal data as “any information that is linked or reasonably linkable to an identified or identifiable person.” The Proposed Rules, further specify that data “is “reasonably linkable” if it can identify a person or a device linked to a person when aggregated with other data, including, but not limited to, a person’s: (1) full name; (2) mother’s maiden name; (3) telephone number; (4) IP address or other unique device identifiers; (5) place of birth; (6) date of birth; (7) geographical details (for example, zip code, city, state or country); (8) employment information; (9) username, email address, or any other account holder identifying information (including, but not limited to, identifying information related to social media accounts); (10) mailing address; and (11) race, ethnicity, sex, sexual orientation, or gender identity or expression.
The Proposed Rules also further detail a number of compliance obligations, including requirements relating to maintaining a data inventory, processing sensitive data, maintaining records of privacy rights requests, conducting data privacy impact assessments, providing privacy disclosures including in relation to loyalty programs, practices for receiving and responding to privacy rights requests, and practices for obtaining consent including requirements for avoiding dark patterns. In addition, the Proposed Rules refer to the obligation to safeguard personal data as a “duty of care,” which may create a basis for litigation in that regard despite the prohibition on private rights of action under the NJDPA.
“We live in a rapidly changing digital age, and personal data is collected at an alarming rate. Consumers in New Jersey deserve to know exactly when and how their information is used,” said Phil Murphy, New Jersey’s Governor. New Jersey’s Attorney General added, “the proposed rules advance consumer privacy protections by requiring internet websites, online providers, and other entities to fully disclose to consumers how their private data will be used, notify consumers of their data privacy rights, and provide them with information on how to exercise those rights,” and New Jersey’s Acting Director of the Division of Consumer Affairs further added, “there is a growing sense of helplessness among consumers who do not want their data collected but feel powerless to stop it. The rules we are proposing . . . empower consumers to reclaim control over their personal data, including how and when it is collected, shared, or sold.”
There is a 60-day public comment period to submit written comments on the proposed rules that ends on August 1, 2025. After the public comment period, the New Jersey Division of Consumer Affairs will review the comments that were submitted. The rules will become final when a Notice of Adoption is published, which is expected sometime in 2026.
FAST FASHION FAST FILING: Fashion Nova Hit With TCPA DNC Class Action Over Memorial Day Text Messages And it Happens Just That Fast
2025 has been the Year of the TCPA Class Action with filings more than doubling from last year.
And for those wondering how fast a TCPA class action can turn up, one need only ask Fashion Nova.
Fashion Nova, which Wikipedia calls a “fast fashion retailer”– no idea what that means– was sued in a TCPA class action in Indiana yesterday for messages that were sent less than two weeks prior in late May, 2025!
Indeed the complaint alleges illegal messages were sent in June, 2025 as well. So we are talking less than 10 days from messages to class action.
Fast fashion indeed.
The allegations are pretty standard. Plaintiff claims he was on the national DNC list but still received unwanted marketing SMS messages.
The messages advertised a Memorial Day sales event and were pretty clear part of a discount club. My bet is this was a wrong number text situation but I do not know that for sure.
Retailers definitely need to keep their eye on TCPA developments as they have been hammered with suits recently– particularly those involving SMS clubs.
Biggest risk is wrong number texting– which is why the use of the FCC’s Reassigned Numbers Database is so critical!
ROBOCALLS ON THE RISE: Latest Robocall Index Update Confirms Trend– Robocalls Up Nearly 20% YoY
Well Americans have endured 3 billion more robocalls in 2025 than in 2024 according to YouMail’s famous Robocall Index.
The Index reveals Americans received 4,829,181,100 robocalls in May, 2025 as opposed to 4,480,264,800 in May, 2025– an increase of over 400MM calls in a single month.
Year to date figures are even worse, with consumers having received 23.7BB robocalls in 2025 compared to ~20BB this same time frame last year. This amounts to an increase of nearly 20% year over year.
Not clear what is driving the trend but the percentage of telemarketing calls remains high– 35%. That means approximately 1,.7BB marketing robocalls were made in May, 2025.
As these numbers continue to rise we can expect regulators and legislators to pay attention and look for ways to bring these figures down.
In the meantime the work of R.E.A.C.H.–a trade organization committed to stopping unwanted robocalls– has become all the more important.
Notably 2024 saw a big decrease in robocalls leading up to the expected adoption of the FCC’s one-to-one consent rule in January, 2025. The Eleventh Circuit Court of Appeals struck down that ruling– which would have made it harder for website to share consumer data with telemarketers.
The increase in robocalling activity has gone hand in hand with a huge recent increase in TCPA filings. However while robocalls are up 20% YoY, TCPA class actions are up over 100% YoY so although the trend appears correlated it is not proportional.
We’ll keep an eye on this.
Foley Automotive Update- June 11, 2025
Trump Administration Trade and Tariff Policies
Foley & Lardner provided an update on the current Trump tariff proposals, as well as the implications of recent court decisions striking down tariffs issued under the International Emergency Economic Powers Act (IEEPA).
President Trump on June 11 stated a trade agreement with China is “done, subject to final approval with President Xi and me.” The deal is said to include a framework for China to supply “any necessary magnets and rare earths.” [This breaking news story has frequent updates.]
MEMA and a number of major automakers urged immediate action to address the risk of parts shortages and production disruptions resulting from policies in China that have restricted or delayed export licenses for certain rare earths, minerals and magnets.
The European Association of Automotive Suppliers (CLEPA) on June 4 stated that “approximately one-quarter” of the rare earths export license applications submitted to Chinese authorities since April have been approved. Chinese exports of rare earths rose 23% in May from the previous month, according to customs data published June 9.
President Trump signed an executive order to double Section 232 steel and aluminum tariffs to 50%, effective June 4. The governments of Canada, Mexico and Brazil are reported to be seeking exemptions to the steel import tariffs. Aluminum prices are projected to increase more than 20% to reach over $3,000 a ton by the end of 2026 due to the expectation of supply constraints and the effects of higher U.S. demand from Trump administration trade policies.
The Office of the U.S. Trade Representative extended Section 301 tariff exclusions for certain products from China to August 31, 2025, from a previous expiration of May 31, 2025. The duties were originally implemented in 2018 and target products that include certain batteries, critical minerals, and semiconductors. The exemptions could be further extended or modified, per the notice.
Automotive Key Developments
S&P Global Mobility and Automotive News provided overviews of the potential effects of higher steel and aluminum tariffs on automakers and suppliers. S&P noted the effects of various tariffs could cause U.S. new light-vehicle inventory to fall to 2 million units industrywide by this December, from current levels of roughly 2.7 million units.
During a presentation at AutoTech 2025, S&P Global Mobility estimated automakers and suppliers are losing up to eighteen months of product planning due to the volatility of tariff policies.
Predictions in Bank of America’s annual “Car Wars” report include ongoing multi-billion-dollar write-downs for EVs, an emphasis on “core” products to generate cash, and the potential for “mass consolidation” of the automotive industry in China resulting from extreme price wars and excess capacity. Automakers are expected to launch 159 models over the next four years, from typical levels of over 200, and the report noted the “next four+ years will be the most uncertain and volatile time in product strategy ever.”
The Federal Communications Commission extended the public comment period by 18 days to June 27, 2025 on a proposal that could expand the list of vehicle connectivity technologies banned from Russian and Chinese manufacturers.
The White House budget office instructed the Department of Transportation to disregard a Government Accountability Office decision that the DOT violated the Impoundment Control Act (ICA) by suspending the National Electric Vehicle Infrastructure (NEVI) Formula Program created by the 2021 Bipartisan Infrastructure Law. The ICA limits a president’s ability to hold back funds appropriated by Congress.
Last week, sixteen states and the District of Columbia urged a Washington federal judge to grant their request for a preliminary injunction to stop the federal government from withholding NEVI funds.
The DOT’s National Highway Traffic Safety Administration on June 6 published a final rule, Resetting the Corporate Average Fuel Economy Program, describing the agency’s legal foundation for its authority to revise CAFE and medium- and heavy-duty vehicle (MDHD) standards. An upcoming separate rule will revise the standards. This follows a proposal in the Senate’s pending tax and budget bill to eliminate fines for failures to meet CAFE rules.
U.S. new light-vehicle sales in May increased 1.4% year-over-year to a SAAR of 15.6 million units.
OEMs/Suppliers
As part of a $4 billion plan to increase U.S. manufacturing over the next two years, GM will expand finished vehicle production at Orion Assembly in Michigan, Fairfax Assembly in Kansas, and Spring Hill Manufacturing in Tennessee. This investment will support the ability to assemble up to two million vehicles annually in the U.S.
Automakers shipped 72% fewer vehicles to the U.S. in May 2025 compared to the same period last year, according to maritime import data from Descartes Datamyne.
Canadian exports of motor vehicles and parts fell 17% in April, according to data from Statistics Canada published on June 5.
Aftermarket auto parts dealer Detroit Axle stated it could go out of business “within weeks” due to a Trump administration policy that ended the “de minimis” tariff exemption for small-value packages from China.
A number of global suppliers are exploring opportunities to support Chinese automakers’ overseas expansions.
The Chinese government is reported to have told the nation’s automakers to “self-regulate,” amid rising concerns the ongoing price wars among domestic EV makers could result in diminished profitability and significant industry consolidation.
Market Trends and Regulatory
Kelley Blue Book estimated the average new-vehicle transaction price (ATP) in May 2025 was $48,799, largely flat with the April ATP but up 1% YOY. The average manufacturer’s suggested retail price (MSRP) in May rose 2% YOY to $50,968.
The auto industry is the most likely sector to experience financial distress this year, according to two-thirds of respondents in AlixPartners’ 20th Annual Turnaround and Transformation Survey.
The National Association of Manufacturers Q2 2025 Manufacturers’ Outlook Survey found 55.4% of respondents reported a positive outlook for their companies, representing a nearly 15 percentage point drop from Q1 and the lowest level since Q2 of 2020.
Eighty-three percent of CEOs across all industries expect a recession in the next 12 to 18 months, according to the Conference Board‘s CEO confidence index.
The fire on the car carrier Morning Midas started on a deck containing electric vehicles. However, the cause of the incident has not been confirmed. This marked the third serious fire in 2025 and the thirteenth in the past decade on “large ro-ro type ships.”
Autonomous Technologies and Vehicle Software
Tesla could debut robotaxi rides in limited parts of Austin, Texas in the coming weeks.
Alphabet unit Waymo has achieved 10 million paid driverless rides on a cumulative basis, and it books an average of over 250,000 weekly rides. The autonomous driving company offers paid rides in parts of San Francisco, Los Angeles, and Phoenix, and the company recently expanded to Austin and Atlanta in partnership with Uber.
Uber Technologies, Inc. and self-driving startup Wayve plan to launch public-road trials of Level 4 (L4) autonomous vehicles in London in spring 2026.
Autonomous truck-driving software company Plus Automation plans to go public in the U.S. through a $1.2 billion merger with special-purpose acquisition company Churchill Capital Corp. The combined entity will operate as PlusAI.
China is developing national safety requirements for driver-assistance systems.
Electric Vehicles and Low-Emissions Technology
Ford stated its plan to produce EV batteries at a new plant in Marshall, Michigan would be at risk if Congress eliminates federal tax credits for clean energy.
Automotive Energy Supply Corp. (AESC) halted construction of an EV batteryplant in South Carolina due to “policy and market uncertainty”
The majority of workers at a Stellantis – Samsung SDI battery joint venture plant in Indiana signed cards to join the UAW.
Lucid Group signed its third agreement for U.S.-processed graphite, in an effort to strengthen its domestic supply chain for EV batteries.
The advertised ranges of many EVs can vary significantly from the number of miles covered during Consumer Reports’ tests of 30 EVs driven at a constant highway speed of 70 mph. Over half of the tested vehicles missed targets in the advertised range, by anywhere from one mile to up to 50 miles. However, some models exceeded range by two miles to 67 miles. Unlike gas-powered cars, EVs are typically less efficient on highways than in cities.
A recent AAA survey of 1,128 consumers found only 16% of respondents were “very likely” or “likely” to purchase a fully electric vehicle as their next car, representing the lowest level since 2019.