The VPPA: The NBA and NFL Ask SCOTUS to Referee
On April 22, 2025, the National Football League (NFL) filed an amicus brief asking the United States Supreme Court to take on a Video Privacy Protection Act (VPPA) class action case against the National Basketball Association (NBA). In my last post, we covered a recent VPPA lawsuit against a movie theater company and reviewed the provisions of the Act. In recent years, we analyzed how plaintiffs have applied the VPPA outside of traditional video contexts. This week, we dive deeper into a VPPA case against the NBA and explore the NFL’s amicus brief supporting the NBA’s position, asserting why the Act should not apply in the modern video streaming context, particularly for sports leagues.
Case Background
In the case against the NBA, the plaintiff alleged that they subscribed to the NBA’s newsletter and watched free videos on its website while logged into their Facebook account. In doing so, the NBA reportedly shared their personal viewing information with Facebook via the Meta Pixel tracking technology. The plaintiff asserted that they were a “subscriber of goods and services” and therefore met the definition of a consumer under the VPPA. See Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533 (2d Cir. 2024).
To recap, the VPPA prohibits a video tape service provider from knowingly disclosing a consumer’s personally identifiable information—including information identifying a person as having requested or obtained specific video materials or services from a video tape service provider—to a third party without the consumer’s express consent. A “video tape service provider’ is defined as someone “engaged in the business … of rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials,” and has been interpreted to apply to video streaming service providers. A “consumer” refers to a renter, purchaser, or subscriber of goods or services from a video tape service provider.
In October 2024, the Second Circuit held that the plaintiff was the NBA’s consumer under the VPPA, interpreting that the term “consumer” should include an individual who rents, purchases, or subscribes to any of a provider’s goods or services, not just those that are audiovisual. The Second Circuit also concluded that even though the NBA may have obtained only the plaintiff’s name, email, IP address, and cookies associated with their device, the provision of such information in exchange for receiving services constitutes a “subscription.” Further, the Second Circuit also held that the VPPA applies even for videos accessed on a public page that does not require a sign-in for exclusive content.
The NBA filed a petition for certiorari, requesting the Supreme Court to review the Second Circuit’s decision.
The NFL’s Amicus Brief
The NFL’s amicus brief highlights that the Second Circuit is not alone in this broad interpretation of the VPPA. The Seventh Circuit has also held that a plaintiff need not have rented, purchased, or subscribed to the defendant’s audiovisual goods or services to qualify as a consumer under the VPPA, but that any goods or services are sufficient. However, the Sixth Circuit has held to the contrary, reasoning that the definition of “consumer” in the statute does not encompass consumers of all goods or services imaginable, but only those offered in a video tape service provider context. The NFL supports the latter position.
The NFL warns that the “explosion of VPPA class actions” is a concern for content providers like the NBA and NFL, who risk “massive liability” that was “unforeseen by Congress” when the VPPA was enacted in 1988. According to the NFL, tracking technology is “ubiquitous” and “makes much of the content on the Web free.” The NFL warns that if online content providers face such liability, “many content providers would be forced to pursue alternative sources of revenue as a result of the reduction in targeted advertising revenues,” which may result in consumers paying for currently free applications and services.
For sports leagues specifically, the NFL asserts that these organizations often have “hundreds of millions of fans,” many of whom purchase or rent non-audiovisual goods and services that would qualify them as a consumer under a broad interpretation of the VPPA. For example, a fan who bought tickets to a sports game or purchased league apparel through the NBA or NFL website, who then happened to watch a free video on the league’s website while logged into Facebook, may be considered a consumer, and could seek VPPA damages.
The NFL also asserts that there is no real harm to VPPA plaintiffs because using pixels is not a secret and that “consumers are well aware that enabling the use of cookies permits personalized advertising.” The NFL emphasizes that the plaintiff in the NBA case admitted they could have seen that the NBA was using the Meta Pixel by viewing the code on the NBA’s website. In addition, Meta’s Cookie Policy informs users that it may obtain information from third parties. Therefore, the NFL also questions consumers’ standing for such VPPA suits based on no real harm.
Last year, plaintiffs initiated over 250 VPPA lawsuits. Yet, the circuit split still leaves open the question: Who qualifies as a consumer under the VPPA in this modern video streaming context? The NBA, with support from the NFL, has punted the question to the Supreme Court. If the writ of certiorari is granted, we might find the ball in SCOTUS’ court.
Designated Informative: PTO Director Declines IPR Institution Following District Court § 101 Invalidation
The US Patent & Trademark Office (PTO) designated a recent Director Review decision as informative, signaling its significance for future proceedings. The decision emphasizes that a final district court ruling invalidating a patent weighs heavily against instituting inter partes review (IPR) under the Fintiv framework, reinforcing the agency’s stance on minimizing duplicative litigation. Hulu LLC v. Piranha Media Distribution LLC, IPR2024-01252; -01253 (PTAB Director Review Apr. 17, 2025) (Stewart, PTO Dir.)
Piranha requested Director Review of the Patent Trial & Appeal Board’s decision granting institution of two IPRs filed by Hulu. Piranha argued that the decision should be reversed and the IPRs denied institution, citing a district court final judgment invalidating the challenged claims under 35 U.S.C. § 101 issued before the institution decision was made. Hulu argued that Director Review was unwarranted.
In the district court litigation, Piranha asserted that Hulu infringed claims from two patents related to integration of advertising content into digital media streams. Hulu moved to dismiss the complaint, arguing that the asserted patents were ineligible for patenting under § 101. The district court determined that the asserted claims were directed to the abstract idea of “displaying an advertisement in exchange for access to copyrighted material, as well as the abstract idea of receiving, organizing, and displaying data,” and contained no inventive concept. The district court granted Hulu’s motion to dismiss and held the claims patent ineligible and therefore invalid under § 101.
The Director explained that since a district court had already ruled the patent claims invalid, launching separate IPRs to assess their patentability on other grounds was unnecessary. The Director noted that if the Federal Circuit overturned the district court’s decision, Hulu could still pursue its invalidity arguments during remand proceedings. Declining to institute review was the more efficient and practical path under the circumstances, the Director said.
While the Board applied the Fintiv framework in its institution decision, the Director observed that the framework does not align neatly with the facts of this case, where a final district court judgment under § 101 preceded the Board’s decision. The Director ultimately concluded that a second review proceeding was unwarranted given the claims’ current invalid status.
JUST FOR FUN: Yes a Guy Just Sued the NFL For an Alleged $100MM in Emotional Distress Because His Favorite Football Player Dropped in the Draft And I Pulled the Complaint…
A football fan identifying himself as John Doe of Lawrenceville, GA has sued the NFL for $100MM because of Shedeur Sanders’ draft slide. Yes, this is preposterous. But then again its kind of interesting from a legal perspective.
The media is covering this story at large yet they have not provided a copy of the Complaint so I figured I would.
The meat of the charging allegations are:
Plaintiff is a dedicated fan of Colorado football and has closely followed Shedeur Sanders throughout the 2023 and 2024 seasons.
Plaintiff attended the Colorado Buffaloes’ first game against the TCU Homed Frogs on September 2, 2023, witnessing firsthand Sanders’ exceptional talent and potential as a quarterback in Coach Deion Sanders’ debut with the program.
Plaintiff regularly consumes media content related to Shedeur Sanders, including programming from Well Off Media.
Despite Sanders’ demonstrated skills and significant attention during the 2023 and 2024 seasons, the NFL drafted him at the 144th pick during the 2025 NFL Draft.
Among the alleged causes of action is a violation of the Sherman Antitrust Act (15 U.S.C. §§ 1-7), which I find particularly interesting.
The NFL may be viewed as a monopoly of sorts and the Sherman Antitrust Act generally does prohibit agreements or conspiracies that unreasonably restrain interstate trade. So the claim an alleged “collusion among NFL teams to influence the drafting process and the subsequent low selection of Shedeur Sanders constitutes a conspiracy to restrain trade and limit competition within the league” is not completely insane.
Still the Plaintiff’s effort to recover $100,000,000.00 “for the harm caused to the Plaintiff and the impact of the NFL’s actions on his emotional well-being” is certainly outlandish, but enjoyably so.
Full complaint here: NFL Complaint
FTC Rule on Unfair or Deceptive “Junk” Fees FAQs
On May 5, 2025, Federal Trade Commission staff published Frequently Asked Questions (FAQs) designed to provide consumers and businesses with information regarding the agency’s Rule on Unfair or Deceptive Fees, which takes effect on May 12, 2025.
The Rule on Unfair or Deceptive Fees prohibits bait-and-switch pricing and other tactics used to hide total prices and mislead people about fees in the live-event ticketing and short-term lodging industries. The Final Rule is significantly more narrow than as initially-proposed.
According to the FTC, unfair and deceptive pricing practices can harm consumers and undercut businesses trying to compete fairly on price. The Rule also furthers President Trump’s Executive Order on Combating Unfair Practices in the Live Entertainment Market by ensuring price transparency at all stages of the live-event ticket-purchase process, including the secondary ticketing market.
The Final Rule is intended to preserve flexibility for businesses by not prohibiting any type or amount of fee or specific pricing strategies. However, the Rule requires businesses that advertise prices tell consumers the whole truth up-front about total prices and fees.
The FAQs provide guidance on such topics as:
What Businesses are Covered by the Rule?
Businesses selling live-event tickets and short-term lodging are covered.
The Rule covers any business that offers, displays, or advertises live-event tickets or short-term lodging, including third-party platforms, resellers and travel agents. Coverage applies whether such offers, displays, or advertisements appear online, including through a mobile application, in physical locations, or through some other means.
Importantly, business-to-business transactions are covered. The Rule also protects individual and business consumers.
What are the Final Rule’s Basic Requirements?
A business that includes pricing information in its ads and other offers must tell people upfront the total price they will pay for live-event tickets or short-term lodging. The total price includes all charges or fees the business knows about and can calculate upfront, including charges or fees for mandatory goods or services people have to buy as part of the same transaction.
There are some fees that may be able to by excluded from the total price. In other words, there are a few fees or charges a business can disclose later in the transaction, as long as it discloses them before asking for payment. The total price displayed upfront does not need to include the following charges:
taxes or other government charges;
shipping charges; and
charges for optional goods or services people may select to buy as part of the same transaction.
However, a business must display the total price more prominently than other pricing information, except for the final amount of payment (as described below).
Also, excluded charges must be disclosed prior to asking for payment. Before a business prompts people to pay, the business must disclose the charges it has excluded from the total price. That disclosure should include the nature, purpose and amount of all such charges, and identify the good or service for which charges are imposed.
For example, if a business excludes taxes or shipping charges from the advertised price, the business must “clearly and conspicuously” disclose the amount and purpose of those charges. Before asking for payment, a business must add in any previously excluded charges and display the final amount of payment as prominently as, or more prominently than, the total price.
Importantly, the Rule prohibits misrepresentations about fees and charges. When it comes to fees, a business must tell the truth about information it is required to disclose, such as how much it is charging and why. It also must tell the truth about any other fee-related information it chooses to convey, like whether the fee is refundable. A business must describe what fees are for and avoid vague phrases like “convenience fees,” “service fees,” or “processing fees.”
Live-event tickets are covered under the Rule. Live-tickets events are for concerts, sporting events, music, theater and other live performances that audiences watch as they occur. In general, pre-recorded audio and visual performances and film screenings are not live events covered by the Rule.
Short-term lodging is also covered under the Rule. Examples of covered short-term lodging include:
Temporary sleeping accommodations at a hotel, motel, inn, short-term rental, vacation rental, or other place of lodging;
Home shares and vacation rentals offered through platforms (like Airbnb or VRBO);
Discounted extended stays at a hotel
Examples of lodging that are not covered under the Rule include:
Long-term or other rental housing that involves an ongoing landlord-tenant relationship;
Short-term extensions to leases offered by rental housing providers;
Temporary corporate housing offered by an apartment community under the same conditions as long-term leases.
There is no specified length of stay. The Rule does not mandate what length of stay qualifies as short-term. Whether a stay is short-term will depend on factors such as those listed above.
Which Mandatory Fees or Charges Must be Included in a Business’s Displayed Total Price?
Businesses must include all fees or charges that meet any of the following conditions (other than government charges and shipping charges):
Fees people are required to pay, no matter what;
Fees people cannot reasonably avoid (e.g., credit card processing charges when there is no other viable payment option);
Charges for ancillary goods or services that people must buy to make the underlying good or service fit for its intended purpose, which reasonable consumers would expect to be part of the purchase. For example, if a hotel requires guests to pay for towels, the hotel must include the towel fee in the total price; or
Fees people cannot effectively agree to because the business employs practices such as default billing, pre-checked boxes, or opt-out provisions. For example, a business cannot treat as optional an automatic fee that it removes only if a person notices and challenges it.
Examples of mandatory fees and charges that must be included in the total price:
An online ticket retailer requires people to pay a fee to purchase live-event tickets online. The fee cannot be avoided and must be included in the total price;
A resort charges a nightly rate of $199, plus a mandatory resort fee of $39 per day. The required resort fee must be included in the total price;
A vacation rental adds a cleaning fee that consumers must pay in addition to the nightly rate. The cleaning fee must be included in the total price.
Can a Business Itemize Mandatory Fees or Charges?
Yes, but itemization must not overshadow the total price.
A business may itemize fees or charges for mandatory goods or services required to be included in the total price, but the total price must be clear, conspicuous, and most prominent. In addition, all itemizations must be truthful and not misrepresent fees, including what the fees are for.
Which Fees or Charges can Businesses Exclude from the Total Price?
Businesses may only exclude three categories of charges from the total price:government charges, shipping charges and fees or charges for optional ancillary goods or services that people choose to add to the transaction.
Excluded fees or charges must be disclosed later. Before asking for payment, a business that initially excludes a fee or charge from the total price must clearly and conspicuously disclose:
the nature, purpose and amount of the fee or charge; and
the good or service for which the fee or charge is imposed.
When Must a Business Disclose the Final Amount of Payment, Including Fees or Charges it Excluded from the Total Price?
A business must prominently display the final amount of payment before asking people to pay. A business must calculate, then clearly, conspicuously, and prominently disclose the final amount of payment, including taxes, shipping and optional add-ons, before asking people to pay. The final amount of payment must be displayed as prominently as, or more prominently than, the total price.
What are Ancillary Goods or Services and How Does the Rule Apply to Charges for Them?
Ancillary goods or services are additional goods or services a business offers as part of the same transaction. They may be mandatory or optional, depending on the specific facts of the transaction.
Businesses must disclose fees or charges for mandatory ancillary goods or services in the total price. Fees or charges are mandatory if they relate to a good or service that is:
necessary to make the underlying good or service fit for its intended purpose; or
a required purchase when people buy the underlying good or service.
Examples of mandatory ancillary goods or services:
An online ticket seller automatically charges a 3% credit card surcharge on top of the advertised price and the seller does not offer another viable online payment method without a fee. The credit card payment is then a mandatory ancillary service. The seller must include the fee in the total price because people cannot reasonably avoid it;
At check-in, a hotel automatically charges a resort fee for the use of its facilities, although it waives the fee if a guest notices and challenges it. The resort fee is a mandatory ancillary service. The hotel must include the fee in the total price because: (i) a reasonable consumer would expect use of the hotel facilities to be included with the stay; and (ii) automatically including the fee makes the good or service mandatory by effectively limiting people’s ability to consent.
Businesses do not need to include fees or charges for optional ancillary goods or services in the total price. A business may exclude from the total price fees or charges for optional ancillary goods or services that people may choose to add to the same transaction. However, if a consumer adds them, the business must clearly and conspicuously disclose such fees, and include them in the final amount of payment, before asking the person to pay.
Examples of optional ancillary goods or services:
A comedy club sells tickets in-person at its box office and charges a 3% surcharge when people buy tickets with a credit card but not when people pay with a payment app, debit card, or cash. In this case, using a credit card is an optional ancillary good or service;
A live music venue offers event tickets for $150 and a VIP package for $200 that includes the event ticket, drinks, and an appetizer. The VIP package is an optional ancillary good or service;
A sporting event venue offers people the option to rent binoculars. Binocular rental is an optional ancillary good or service;
A hotel offers guests the option to select a trip protection plan when booking online. The guest affirmatively must check a box to add the plan (the plan is not pre-selected). In this case, the plan is an optional ancillary good or service.
Can Businesses Charge Credit Card Surcharges and Other Payment Processing Fees and, if so, Can They Exclude Such Fees From the Total Price?
Businesses may charge or pass through credit card or other payment processing fees if otherwise permitted by law. If a business requires people to pay with a credit card, the credit card fee is mandatory and must be included in the total price.
If there is another viable payment method people can use at the same location or platform that does not incur a fee, then using the method that incurs a fee is optional, and the business need not include the fee in the total price. The business still must disclose the fee, include it in the final amount of payment before asking for payment, and may not misrepresent the purpose or amount of the charge.
How Does the Rule Treat Shipping Charges?
A business can – but is not required to – exclude shipping charges from the total price. Shipping charges must reasonably reflect a business’s costs to ship physical goods. A business can use flat-rate shipping or shipping costs based on national averages. Shipping charges do not have to reflect a business’s exact cost to ship goods.
A business can incorporate the cost of shipping into the total price, for example, when offering “free shipping.”
If a business excludes shipping charges from the total price, it must disclose such charges before asking for payment and include those charges in the final amount of payment.
Handling charges are not shipping charges. A business must include handling charges in the total price.
How Does the Rule Apply to Fees that Depend on Consumer Choices or Behavior?
If a business cannot calculate a fee or charge in advance because it depends on choices someone makes during the transaction, it can exclude the fee or charge from the total price.
For example:
A theater offers general admission tickets for one price and upgraded balcony seats at a higher price. The theater may advertise the lowest available general admission total price only if people can actually buy tickets at that price and the pricing information is not otherwise misleading;
When booking a hotel room, people may select from several optional features that impact the final amount of payment. The hotel may advertise room rates at the lowest available total price if people can actually book the advertised room at that price and the pricing information is not otherwise misleading. But once someone selects a feature that increases the rate, the hotel must update the total price to reflect such choices.
A business can also exclude from the total price fees incurred after purchase, but only if those fees: (i) couldn’t be known at the time of purchase; or (ii) may not be considered part of the same transaction (for example, fees for late payment or charges for damage to a hotel room).
Can Businesses use Dynamic Pricing?
Businesses may use dynamic pricing strategies to adjust prices, for example, based on demand or inventory, so long as the pricing information is not misleading. Many businesses do, and may continue to, rely on regional or local advertising that enables pricing to vary by region or locality.
How Does the Rule Apply to Discounts and Promotional Pricing?
The Rule allows a business the flexibility to offer discounted pricing or pricing promotions. However, if the discount or promotion is not available to everyone, the total price should not reflect the discount or promotion. Once someone meets the requirements for the discount, the business can update the total price to reflect the discount.
For example:
If a promotion is available only to some people, such as people who enroll in a rewards program, the total price is the price offered to everyone. If a business wants to display both prices, the total price must be most prominent;
If a business offers a promotion such as “Buy One Get One Free,” it must display the total price without the promotion most prominently, unless and until the transaction meets the requirements for the promotion.
If a business advertises a general discount such as “50% off,” without displaying the price of any particular good or service, the display would not require disclosure of the total price.
How Does a Business Disclose Pricing Information “Clearly and Conspicuously?”
A “clear and conspicuous” disclosure is easy for people to understand and difficult for them to miss. The Rule does not require specific fonts or type sizes, but specifies that:
All disclosures. All disclosures must be made in the same way as the offer, display, or ad. In other words, if an ad is visual, the disclosure must be visual. If the ad is audible, the disclosure must be audible. If ads are both visual and audible – for example, a TV ad – the disclosure must be presented both visually and audibly at the same time;
Visual disclosures. A visual disclosure must stand out so it’s easy for people to notice, read, and understand. When offering a visual disclosure, consider the disclosure’s size, contrast with the background and other text, location, and length of time appearing on screen;
Audible disclosures. An audible disclosure – for example, on the radio or in a video – must be at a volume, speed, and cadence sufficient for ordinary consumers to easily hear and understand;
Interactive electronic media. For offers, displays, or ads in interactive electronic media – such as online, including in an app – the disclosure must be unavoidable;
Wording of disclosures. Disclosures must use plain language, can’t be contradicted by other statements, and must be in the same language as the offer, display, or ad.
What are Some Examples of Misrepresentations that May Violate the Rule?
A hotel charges an “environmental fee” but does not actually use the fee to promote environmental sustainability or conservation.
A ticket seller says a “usage fee” is required by the government when it is not.
A speculative ticket seller advertises it has tickets available for a sold-out concert at a certain price but does not actually have those tickets. In this case, the tickets are not “available” at the time the business made the offer.
A secondary ticket seller chooses to itemize all charges that make up the total price of a ticket. The secondary ticket seller includes a “taxes and fees” charge at checkout that inflates the actual government taxes and fees because it includes an amount that the ticket seller keeps as profit.
How Does the Rule Affect National or Regional Advertising Campaigns?
A business that advertises nationally, regionally, or locally with different prices for different locations should advertise the maximum total price applicable to the area the business is targeting.
How Does the Rule Apply to Online Marketplaces?
Businesses that sell or advertise on an online marketplace must provide the marketplace with accurate pricing information, including information about fees or charges for mandatory and optional ancillary goods and services.
Online marketplaces or other intermediaries, including those in the secondary ticket market, responsible for offering, displaying, or advertising the price of a good or service must give sellers the information necessary to calculate the total price. For example, if an intermediary charges a fee to access its platform and the seller passes the fee on to the consumer, the intermediary must give the seller accurate information about the fee so the seller can include this mandatory fee in the total price.
If intermediaries display pricing information for the seller, they must display the total price. In such a case, sellers must provide intermediaries with the information necessary to calculate the total price.
What Happens if a State or Local Law or Regulation has Different Requirements?
Businesses must comply with the Rule and all applicable state or local laws and regulations.
If a state or local law or regulation directly conflicts with the Rule and a business cannot comply with both, the Rule will supersede the state or local law or regulation but only to the extent of the conflict. In other words, a business still must comply with all parts of the state or local law or regulation that do not directly conflict with the Rule.
If a state or local law or regulation gives people greater protections than the Rule, businesses must comply with the Rule and the greater protections provided by the state or local law or regulation.
What happens if a business violates the Rule?
Businesses that violate any FTC Trade Regulation Rule – including the Junk Fees Rule – could be ordered to bring their practices into compliance, refund money back to consumers, and pay civil penalties.
Takeaway: The FTC Final Rule on Unfair or Deceptive “Junk” Fees covers businesses that offer, display or advertise live-event tickets or short-term lodging, “including third-party platforms, resellers, and travel agents,” regardless of where the advertisements appear. Notably, it also applies to B2B transactions. Importantly, sellers must be provided information necessary to calculate and disclose the total price upfront by online marketers and other intermediaries (for example and without limitation, secondary ticket market participants), including fees intermediaries charge.
FTC Finalizes “Junk Fees” Rule: New Pricing Disclosure Requirements Take Effect May 12, 2025
Targeted Disclosure Mandate: Businesses in the live-event ticketing and short-term lodging sectors must clearly disclose total prices — inclusive of mandatory fees — up front and more prominently than any other pricing terms.
Narrow Scope, Broad Signals: While limited to two industries, the rule reflects the FTC’s ongoing focus on pricing transparency and digital marketing practices.
Enforcement Begins Soon: Civil penalties of up to $51,744 per violation may apply beginning May 12, 2025.
Overview
The Federal Trade Commission (FTC) has finalized its long-anticipated Trade Regulation Rule on Unfair or Deceptive Fees, commonly referred to as the Junk Fees Rule. This is part of the FTC’s broader effort to improve price transparency in consumer transactions. Announced on December 17, 2024, the rule is scheduled to take effect May 12, 2025, and will apply to live-event ticket sellers and short-term lodging providers, including hotels, inns, and vacation rental platforms.
Designed to eliminate so-called “junk fees” — vague or unexplained charges that are not clearly disclosed up front — the rule requires businesses to present total pricing clearly and conspicuously at the outset of the transaction, rather than buried at checkout or behind multiple clicks. While its initial reach is limited, the rule signals a continuing regulatory trend toward increased scrutiny of fee disclosures and user interface design across industries.
The rule imposes several core requirements:
Total Price Disclosure: Businesses must clearly disclose the total price — including all mandatory fees — at the beginning of the purchase process. This price must appear more prominently than any partial or base pricing displayed, except for the final amount due at payment.
Excluded Fees Must Still Be Disclosed: Certain charges are not required to be included in the “total price,” such as government taxes, shipping fees, and charges for optional products or services. However, these must be clearly and conspicuously disclosed before the consumer agrees to pay.
No Misleading Fee Descriptions: The rule prohibits vague or misleading fee labels (e.g., “service fee” or “processing fee”) unless their nature and purpose are explained. It also bars businesses from implying that optional fees are government-imposed or legally required when they are not.
Applicability and Enforcement Scope: The rule applies exclusively to live-event ticketing and short-term lodging businesses. Other industries are not currently covered, but the FTC has indicated it may pursue additional rulemaking or enforcement efforts targeting pricing practices in other sectors.
Penalties for Noncompliance
Violations of the rule constitute unfair or deceptive acts under Section 5 of the FTC Act. As of 2024, the FTC may impose civil penalties of up to $51,744 per violation, and each instance of noncompliance may be treated as a separate offense.
Action Items for Businesses
Businesses subject to the rule should take immediate steps to prepare for the May 12, 2025, enforcement deadline:
Audit Pricing Disclosures: Review websites, mobile apps, advertisements, and booking flows to ensure that total pricing appears early and clearly.
Revise Fee Descriptions: Eliminate ambiguous or misleading terms; ensure that any excluded charges are transparently disclosed.
Update UX/UI Design: Confirm that the total price is more prominent than any partial or teaser pricing displayed during the transaction process.
Train Internal Teams: Ensure marketing, sales, legal, and product development teams are familiar with the rule’s requirements.
Monitor State Law Overlap: Several states, including California and New York, have adopted or proposed similar transparency measures. Businesses operating nationally should harmonize compliance strategies accordingly.
Looking Ahead
While the rule’s immediate impact is limited to two industries, it reflects the FTC’s broader enforcement priorities regarding digital deception, dark patterns, and consumer choice architecture. Businesses across sectors should view this as a clear signal: pricing transparency is no longer just a best practice — it is fast becoming a regulatory baseline.
Issuer Retreats From Racial Share Allocation Scheme
In February, I wrote about a proposed offering that involved a racially based share allocation scheme. See May Corporations Allocate Shares Based On Race, Gender, Or Ethnicity? Last month, it appeared that the offering was stalled at the Securities and Exchange Commission. See Intentionally Discriminatory Public Offering Stalled At The SEC. Recently, the company, Bally’s Chicago, Inc., disclosed that it intends to proceed with the offering. However, now the company says in an amended registration statement that it intends” to provide preferential allocations of Class A Interests to City of Chicago residents and Illinois residents during this offering”.
The company’s change of plans appears to be in response to litigation, which it describes in Note 14 to its Consolidated Financial Statements:
On January 29, 2025, the American Alliance for Equal Rights and certain other individuals filed a complaint against the City of Chicago, certain members of the Illinois Gaming Board, and the Company, alleging that the Class A Qualification violates federal laws and seeking, among other remedies, permanent injunctions to prevent the Illinois Gaming Board members from enforcing 230 ILCS 10/6(a-5)(9), to allow shareholders to sell their Class A Interests to white males, to mandate the rescission of the Host Community Agreement (“HCA”), and to require the rescission of shares sold under the Class A Qualification Criteria. In addition, on January 30, 2025, a complaint was filed against the City of Chicago (including the Mayor and Treasurer in their official capacities), certain members of the Illinois Gaming Board, and the Company, also alleging that the Class A Qualification violates federal laws and seeking, among other remedies, permanent injunctions to prevent the implementation of the HCA’s requirements for minority and woman ownership in the Company, and to prevent the exclusion of “otherwise qualified individuals” from participating in the Company’s ownership, Board, or employment. On January 31, 2025, an emergency motion was filed for preliminary injunction and temporary restraining order, seeking to preclude the closing of the offering while the case proceeds on the merits. On February 6, 2025, the court denied the plaintiffs’ request for a temporary restraining order to enjoin this offering.
The Company expects to incur substantial costs defending this lawsuit and if any person were to bring such a lawsuit against the Company in the future, the Company could incur additional substantial costs defending against any additional lawsuits. In addition, the time and attention of the Company’s management could be diverted from the business and operations. Furthermore, in the event that a court were to find the Class A Qualification Criteria to be invalid or unconstitutional, the Company could be found liable for monetary damages against the plaintiffs and the HCA could be terminated, which could adversely affect our ability to operate our casinos and could materially adversely affect our business, financial condition and results of operations.
It will be interesting to read any SEC staff comment letter on this issue.
Is Your Company Prepared for the FTC’s Junk Fees Rule, Effective May 12?
On May 5, 2025, the Federal Trade Commission (FTC or “the Commission”) published FAQs aimed at providing consumers and businesses with information regarding the agency’s Rule on Unfair or Deceptive Fees (the “Junk Fees Rule” or “Rule”) banning so-called “junk fees,” which takes effect on May 12, 2025.
Covered Businesses
The FTC’s Junk Fees Rule requires any business that sells live-event tickets or short-term lodging (e.g., hotels, vacation homes, and other short-term rentals) to disclose clearly and conspicuously all mandatory fees associated with any good or service offered.
The FTC’s initial proposed rule applied to a wide range of businesses — including restaurants, food delivery services, and car rental companies, among others — but the final Junk Fees Rule narrows the scope and solely applies to any business that offers, displays, or advertises:
Live-event tickets
Live-event tickets are for concerts, sporting events, music, theater, and other live performances that audiences watch as they occur.
Generally, pre-recorded audio and visual performances and film screenings are not live events covered by the Rule.
Short-term lodging
Short-term lodging may include: temporary sleeping accommodations at a hotel, motel, inn, short-term rental, vacation rental, or other place of lodging; home shares and vacation rentals offered through platforms (e.g., Airbnb or VRBO); or discounted extended stays at a hotel.
Generally, the following would not be in scope of short-term lodging: long-term or other rental housing that involves an ongoing landlord-tenant relationship; short-term extensions to leases offered by rental housing providers; or temporary corporate housing offered by an apartment community under the same conditions as long-term leases.
The Rule doesn’t prescribe what length of stay qualifies as short-term and will depend on facts and circumstances.
Covered businesses include:
Third-party platforms
Resellers
Travel agents
According to the FAQs, the Rule is intended to protect both individual and business consumers and applies broadly, regardless of disclosure method — whether online (including through a mobile application), in physical locations, or through some other means.
General Compliance Requirements
Generally, the Rule requires that a covered business:
Must disclose “clearly and conspicuously” the “true total price inclusive of all mandatory fees” charged whenever a business “offer[s], display[s], or advertise[s] any price;”
Must display the total price “more prominently” than “most other pricing information;”
Must not misstate the cost or fees for any live-event tickets or short-term lodging; and
Must not misstate the identity of any good or service offered.
According to the FAQ, covered businesses must disclose the total price upfront and prominently and must disclose excluded charges (i.e., taxes or other government charges, shipping charges, or optional charges) before asking for payment. Further, a covered business must be transparent about how much it’s charging and why, whether a fee is refundable, and must describe what fees are for, avoiding phrases like “convenience fees,” “service fees,” or “processing fees.”
Mandatory Fees that Must Be Disclosed
Businesses must include all fees or charges that people are required to pay, cannot reasonably avoid, or are ancillary goods or services that are required to be purchased in a given transaction. Additionally, businesses must disclose fees that are automatic, such as those charged via default billing, pre-checked boxes, or opt-out provisions, and cannot treat such fees as optional.
Credit Card Surcharges and other Payment Processing Fees
Businesses may charge or pass through credit card or other payment processing fees if otherwise permitted by law. However, if a business requires payment by credit card, the credit card fee is mandatory and must be included in the total price. If there’s another viable payment method (at the same location or platform) that does not incur a fee, then using the method that incurs a fee is optional, and the business need not include the fee upfront in the total price. However, the fee must still be disclosed in the final amount of payment before asking for payment and may not misrepresent the purpose or amount of the charge.
Final Considerations
The Junk Fees Rule largely echoes California’s Honest Pricing Law, which expanded the Consumer Legal Remedies Act (California Civil Code § 1750 et seq.), prohibiting advertising prices that don’t include all mandatory fees or charges or “drip pricing.” However, California’s Honest Pricing Law applies broadly across industries.
While increased focus on price transparency is certainly trending, many other federal and state requirements have long prohibited hidden or deceptive fees. The FTC has cracked down on deceptive practices under Section 5 of the Federal Trade Commission Act (FTCA). Under Section 5 of the FTCA, the FTC may regulate material misstatements, omissions, or practices likely to mislead consumers, as well as all states long-standing consumer protection laws prohibiting unfair or deceptive acts and practices (UDAP).
Covered businesses should evaluate their current pricing practices, and any future pricing strategies, to ensure compliance with the Junk Fees Rule as well as other related federal and state requirements related to payment disclosures.
Virginia Governor Signs into Law Bill Restricting Minors’ Use of Social Media
On May 2, 2025, Virginia Governor Glenn Youngkin signed into law a bill that amends the Virginia Consumer Data Protection Act (“VCDPA”) to impose significant restrictions on minors’ use of social media. The bill comes on the heels of recent children’s privacy amendments to the VCDPA that took effect on January 1, 2025.
The bill amends the VCDPA to require social media platform operators to (1) use commercially reasonable methods (such as a neutral age screen) to determine whether a user is a minor under the age of 16 and (2) limit a minor’s use of the social media platform to one hour per day, unless a parent consents to increase the daily limit.
The bill prohibits social media platform operators from using the information collected to determine a user’s age for any other purpose. Notably, the bill also requires controllers and processors to treat a user as a minor under 16 if the user’s device “communicates or signals that the user is or shall be treated as a minor,” including through “a browser plug-in or privacy setting, device setting, or other mechanism.” The bill also prohibits social media platforms from altering the quality or price of any social media service due to the law’s time use restrictions.
The bill defines “social media platform” as a “public or semipublic Internet-based service or application” with users in Virginia that:
connects users in order to allow users to interact socially with each other within such service or application; and
allows users to do all of the following:
construct a public or semipublic profile for purposes of signing into and using such service or application;
populate a public list of other users with whom such user shares a social connection within such service or application; and
create or post content viewable by other users, including content on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users.
The bill exempts from the definition of “social media platform” a service or application that (1) exclusively provides email or direct messaging services or (2) consists primarily of news, sports, entertainment, ecommerce, or content preselected by the provider and not generated by users, and for which any chat, comments, or interactive functionality is incidental to, directly related to, or dependent on the provision of such content.
The Virginia legislature declined to adopt recommendations by the Governor that would have strengthened the bill’s children’s privacy protections.
These amendments to the VCDPA take effect on January 1, 2026.
Safety on Set: Navigating Compliance in the Entertainment Industry
For businesses operating across multiple states, the complexities of workplace safety compliance can be daunting, particularly when laws and standards may vary by location. This issue is especially impactful in the dynamic entertainment sector, where adherence to continuously changing safety regulations is essential. The responsibility becomes even more significant when the industry is in the metaphorical – and sometimes literal – spotlight. High-profile and industry-specific incidents, such as stunts or set-building gone awry, can not only lead to civil, criminal, and regulatory enforcement actions, but also a level of public attention not often seen in other sectors.
Federal regulations play a critical role, with agencies like OSHA creating the baseline foundation for safety and health standards. Under the OSH Act, all employers have an obligation to provide a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm, in addition to following specific standards. Many states, such as California, have adopted their own safety and health standards which match or exceed the federal requirements. Compliance pressures from state laws, such as those regulating heat illness prevention and wildfire smoke exposure, have become more prevalent and can significantly affect regions where cast and crew members work outdoors. Collective bargaining agreements with entertainment trade unions may further adjust the bar for employers.
In addition to navigating the patchwork of federal, state, and local regulations governing workplace safety and health, entertainment industry employers must also face the court of public opinion. Safety incidents not only have a negative effect on impacted employees, but also make headlines, potentially jeopardizing or even halting production. Given these pressures, selecting the right partner for workplace safety is as important as ever.
For these reasons, employers in the entertainment industry should evaluate their safety programs routinely and proactively address potential hazards
Lamar Jackson Successfully Opposes Dale Earnhardt Jr.’s Claim to No. 8
Last month, two high-profile athletes, each identified by the number “8” in his respective sport, faced off (albeit briefly) at the USPTO’s Trademark Trial and Appeal Board. Lamar Jackson—starting quarterback of the NFL’s Baltimore Ravens and two-time MVP of the league—blocked racing legend Dale Earnhardt Jr.’s attempt to trademark a specific stylized version of the number 8 that is displayed on his racecar:
USPTO trademark application status for Serial No. 98513061
Jackson’s Claim to No. 8
In addition to wearing number 8 on the field, Jackson has obtained a trademark registration for a logo incorporating the words “2018 ERA 8 BY LAMAR JACKSON 2018” and owns two pending applications for the word marks “ERA 8” and “ERA 8 BY LAMAR JACKSON.” In his Notice of Opposition, Jackson relied on these trademark records, whose underlying marks are affiliated with clothing, headwear, footwear, backpacks, and other athletic accessories, to argue that Earnhardt Jr’s pending application for a stylized 8 covering similar goods may result in consumer confusion.
Specifically, Jackson contended that he is well known by his uniform number 8 “due to his notoriety and fame, along with his promotion of the number in his trademarks and in media coverage” such that registration of Earnhardt Jr’s proposed 8 mark could falsely suggest an affiliation or other type of partnership between the two athletes. The crux of Jackson’s filing is the concern that consumers are likely to mistakenly believe that apparel and other products offered under Earnhardt Jr’s mark are related to those provided by Jackson.
The legal battle between Jackson and Earnhardt Jr. was short-lived, as Earnhardt Jr. abandoned the application for his version of the stylized 8 mark less than one week after the Notice of Opposition was filed. Jackson is no stranger to defending his rights to the number at the USPTO, as he has also opposed retired quarterback Troy Aikman’s trademark application for the word “EIGHT” in an opposition proceeding that remains pending.
Athletes & Trademarks Incorporating Jersey Numbers
Numbers, standing alone, are merely symbols that denote certain meanings and are not inherently distinctive under trademark law. Therefore, to obtain a trademark registration for a number (or letter), an applicant must first establish that the number is distinctive, such that it functions as an identifier of the source of goods or services.
An applicant may demonstrate a nondescript mark has acquired distinctiveness by submitting evidence that consumers associate the mark specifically with the applicant. It is unlikely that an athlete (or anyone) could gain exclusive control over a standalone number like the number 8. Still, as here, when an athlete incorporates a jersey number into their personal brand it can transform a jersey number common to many athletes into a personal brand identity for a single person.
Michigan Attorney General Takes Action Against Roku, Alleging COPPA Violations
On April 29, 2025, Michigan Attorney General Dana Nessel filed a lawsuit against Roku, Inc., alleging that the company collects and monetizes personal data from children without proper consent. The lawsuit claims that Roku’s practices violate the Children’s Online Privacy Protection Act (COPPA) and other privacy laws.
Michigan Attorney General’s Allegations
In its complaint, filed in the United States District Court for the Eastern District of Michigan, the Michigan attorney general, joined by plaintiffs’ firm Korein Tillery, alleges that Roku violated COPPA (15 U.S.C. § 6502), the Video Privacy Protection Act (18 U.S.C. § 2710), the Michigan Preservation of Personal Privacy Act (M.C.L. § 445.1711), and the Michigan Consumer Protection Act (M.C.L. § 445.901 et seq.) by:
Collecting Data from Children: Roku collects personal information from children, including voice recordings, location data, and browsing histories, including via tracking pixels and cookies.
Failing to Implement Parental Controls: Roku does not offer options for parents to create children’s profiles, ensuring that both parents and children are subject to the same data collection practices.
Sharing Data with Third Parties: Roku shares collected data with third parties, including data brokers and advertising companies, without adequate parental consent.
Misrepresenting Privacy Practices: Roku misleads parents about its data collection practices and the privacy protections in place for children.
The complaint also asserts common law claims for intrusion upon seclusion and unjust enrichment, and requests that Roku stop its allegedly illegal data collection practices and comply with federal and state privacy laws. It also aims to recover damages and penalties for Roku’s misconduct.
Roku’s Response
In response to the lawsuit, Roku stated it will challenge the lawsuit. “Roku strongly disagrees with the allegations in today’s filing, which do not reflect how our services work or our efforts to protect viewer privacy,” the company wrote. “We plan to challenge these inaccurate claims and look forward to demonstrating our commitment to trust and compliance.”
“Roku respects and values the privacy of our users. We do not use or disclose children’s personal information for targeted advertising or any other purpose prohibited by law, nor do we partner with third-party web trackers or data brokers to sell children’s personal information,” the statement continued. “We take the responsibility of creating a safe and trusted online environment seriously. Our viewers rely on Roku for engaging content, and we take pride in connecting our viewers to the streaming content they love every day.”
Takeaways
The Michigan attorney general’s complaint against Roku is the latest in a spate of state attorney general privacy enforcement actions, and businesses should take note that the wave of state enforcement may just be beginning. Further, the recent interest in COPPA enforcement may also be driven by the Federal Trade Commission’s (FTC) recent amendments to the COPPA Rule, which will take effect on June 21, 2025. The FTC’s amendments to COPPA include opt-in parental consent for advertising, enhanced direct notice requirements, and new data security and retention requirements. Companies subject to COPPA must comply with these new requirements by April 22, 2026.
Germany’s 2025 Coalition Agreement: Reforms for the Media, Film, and Creative Industries
The newly published German Coalition Agreement 2025 (CA 2025), German language version available here, outlines the agenda of the new German government for the next four years. For the government’s cultural and media policy, the CA 2025 outlines measures that seek to strengthen Germany as a filming location and further develop the film industry. Proposals on new regulation and funding instruments relevant to the media, film, and other creative industries are particularly noteworthy.
Film Funding Reform and Production Subsidies: Tax Incentive Model and Investment Obligation
Film Funding System Reform: The federal government announced a fundamental reform of the film funding system (Z. 3889) to sustainably strengthen Germany’s international competitiveness as a filming location.
Tax Incentive Model: The government plans to introduce a tax incentive model (Z. 3890) that would make film production investments more attractive. The previous federal government had already discussed a similar model, under which a certain percentage – the considerations ranged between 10% and 30% – of eligible production costs for films or series would be tax-deductible. Many European countries already implement this kind of incentive. The specific details (including the final percentage) of the proposed model must still be negotiated between the new coalition parties.
Investment Obligation: An investment obligation would supplement the tax incentive model (Z. 3890), another measure that the previous federal government had considered. VOD platforms would be required to reinvest a certain percentage – 20% was the number previously discussed – of their German revenues into European productions. However, the specifics of this requirement remain unclear and would need to be worked out by the new coalition.
German Film Subsidy Act: The German Film Subsidy Act (Filmförderungsgesetz) is to be further developed in close consultation with the industry (Z. 3891); however, the CA 2025 does not specify any key areas or specific amendments.
Investment Incentives: The German government wants to support cinema operators through reliable investment incentives (Z. 3892) and targeted support for cultural diversity.
Platform Levy: The German government will look into imposing the long-discussed levy for online media platforms; the revenues are intended to “strengthen Germany as a media location” (Z. 3913). Details concerning the levy, such as its intended scope and targets, remain unclear.
Film Heritage: The German government would also advance the digital preservation of film heritage (Z. 3893).
Focus on the Music Industry, Clubs, and Publishing
Pop Culture Promotion: The federal government is committed to the targeted promotion of the music industry and pop culture – in particular through a “Music Initiative” (Z. 3895) and other federally funded programs.
Protection of Clubs: So-called “cultural protection areas” (Kulturschutzgebiete) would be established (Z. 3896) in which clubs are considered protected cultural venues.
Musical Instrument Manufacturing: A more sector-specific regulatory framework is also being considered for musical instrument manufacturers (Z. 3898).
Publishing: The federal government and the states will look into establishing structural subsidies to ensure diversity in the German book market (Z. 3899).
Fair Remuneration Models and Social Security for Creatives
Fair Renumeration: A central concern of the federal government is to strengthen fair and transparent remuneration models, particularly in the digital music market (Z. 3903). The aim is to ensure that creative services are adequately remunerated, and intellectual property rights can be consistently enforced (Z. 3902).
Social Security for Artists: At the same time, the social security systems for artists and creatives would be strengthened and better aligned with the often project-based, hybrid forms of employment in the arts and creative industries (Z. 3905).
Preserving Media Diversity
Maintaining the Dual Broadcast System: The government wants to strengthen both the public broadcast system (Z. 3911) and the regulation and refinancing of private media companies (Z. 3912).
Strengthening Competition: Antitrust law would be further developed at all levels and integrated with the state media concentration laws in order to control mergers between media companies and media-related infrastructure providers (Z. 3920).
European Dimension, Games, and Youth Protection
Development of a European Media Platform: The government supports developing a European media platform involving ARTE, the Franco-German public service broadcaster (Z. 3941). This aligns with existing plans to further develop ARTE into a pan-European platform by expanding its multilingual offerings and strengthening partnerships with other European media organizations.
Protection of Minors: The German government emphasizes the importance of media literacy in today’s digital era and plans to increase the protection of minors in the media (Z. 3944). The aim is to create a coherent legal framework across Europe, federal, and state levels to reduce parallel structures and simplify law enforcement (Z. 3946). Specifically, the Youth Protection Act would align with the Digital Services Act (DSA) and the State Treaty on the Protection of Minors in the Media (Z. 3947). A particular focus is on technical protection measures, as the German government wants age verification systems on digital devices to become the standard across Europe – with potential implications for device manufacturers, platform operators, and app providers (Z. 3948).
Games: Games are a cultural asset and an innovation driver, which is why the government plans to support the gaming industry through tax incentives and reliable programs.
Conclusion
The CA 2025 highlights the vital role of the media and creative industries, along with media diversity, in strengthening Germany’s position as a hub for innovation and culture. To address current and emerging challenges, the new federal government is considering a range of regulatory measures aimed at supporting and safeguarding this sector. In particular, tax incentives, investment obligations, a proposed new platform levy, and modified concentration laws for media companies represent central levers that industry players should observe from an early stage and take advantage of opportunities for consultation and engagement.