FTC takes aim at non-compete agreements

The Federal Trade Commission is proposing a new rule that would ban non-compete agreements because they suppress wages, hampers innovation and block entrepeneurs from starting new businesses. This is great news for workers.

For many years, I have represented workers who have been coerced into signing non-compete agreements that have stifled their ability to make a living. These agreements prevent workers from exercising their right to change jobs for more pay or better conditions. It is a terribly unfair burden to place on employees and gives employers far too much power over its employees, both current and former.

As proposed, the new rule would make it illegal for an employer to:

• enter into or attempt to enter into a noncompete with a worker;
• maintain a noncompete with a worker; or
• represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect.

This last part - requiring that existing noncompetes be rescinded - could impact millions of workers.

The new rule is subject to public comments through March 10, 2023.

https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-proposes-rule-ban-noncompete-clauses-which-hurt-workers-harm-competition

JC Penney Sued for False Advertising in California

This week, my firm, along with Baker Law PC, filed another class action lawsuit against JC Penney for false advertising and deceptive trade practices. The case parallels the ongoing litigation against JC Penney in Alabama, which I've written about before.

The lawsuit seeks relief under Cal. Bus. & Prof. Code §§ 17200 and 17500 for JC Penney’s false advertising regarding the sale of jewelry, whether it involves metal fineness; the use of undisclosed or less-desirable metals as plating or finishes over precious metals; the existence, thickness or quality of metal plating; the use of alternative, cheaper, less-desirable, or non-precious metals or metal alloys; the number, size or quality of diamonds or other stones; the geographic origin of the item or its contents; failure to comply with the FTC Guides for the Jewelry, Precious Metals, and Pewter Industries; or any other characteristic of jewelry about which JC Penney has lied to make a sale. You can read the complaint here.

We are actively pursuing similar claims against JC Penney and other jewelry sellers for false advertising. Feel free to give me a call if you have concerns about whether you have purchased jewelry that was falsely advertised.

~bjm

More Evidence of False Advertising in the Jewelry Industry is Uncovered

After months of reviewing tens of thousands of internal J.C. Penney documents, our firm's class action lawsuit against J.C. Penney has uncovered evidence that we believe proves that hundreds of items of jewelry may have been falsely advertised over the past several years. My firm, Miano Law PC, has partnered with Baker Law PC in this litigation, which seeks to certify a class action on behalf of those who have been misled by false and deceptive jewelry advertising. The company, of course, denies that it has done anything wrong.

We have identified hundreds of items of jewelry sold by J.C. Penney which contain Rhodium plating, even though we have found very few advertisements which disclose the use of Rhodium plating. The items include virtually all kinds of jewelry, from rings to bracelets to necklaces to earrings. Most of the advertisements, including the one for the bracelet purchased by our client, claim that the plating is Platinum. Surprisingly, some items advertised as yellow or white Gold do not mention any plating at all, and yet internal records of J.C. Penney show that some of these items are actually plated with Rhodium. As I mentioned in my last post about this case, the failure to disclose the use of Rhodium plating is deceptive, in our view, and we hope to convince J.C. Penney to change these deceptive practices. It simply is not truthful to advertise a ring as white Gold if it is actually plated in Rhodium to make it shine more brightly.

We have also identified hundreds of items that we believe violate the FTC's standards for advertising the size of diamonds used in jewelry. These standards, which you can read for yourself here, require that retailers who advertise diamonds using fractions rather than more precise decimals explain in a "conspicuous" and nearby disclosure that the size is "not exact". The FTC standards also require that the advertisement contain a ''disclosure of a reasonable range of weight for each fraction" on "every page" where the fractional representation is made so that consumers know exactly what they are buying. We have found evidence that J.C. Penney violated this guideline routinely in advertising many diamonds over the past four years, although they recently (several years into this litigation) seem to have begun following the FTC standard. Again, J.C. Penney denies any wrongdoing.

Among the other deceptive advertising we are investigating in this case:  the use of incorrect country of origin designations; improper disclosure of lab-created gemstones; the undisclosed use of hollow, or rolled, gold; misrepresentations regarding the number of diamonds in a particular item of jewelry; and misrepresentations regarding the use of plating. As we proceed to review documents and take more discovery, we are learning more on a weekly basis. At this point, we estimate the total sales of falsely advertised jewelry sold by J.C. Penney is in the millions of dollars.

We are actively seeking consumers who have purchased jewelry from J.C. Penney over the last four years to aid in this litigation, particularly consumers from California. If you would like to get involved or have any questions about an item of jewelry you purchased, give me a call or send an email. I will be glad to inspect your jewelry and discuss your rights with you.

~B

All That Glitters is Not Gold

Sometimes, it's Rhodium.

It has been said, by a former Queen of England, I believe, that even "brass shines as fair to the ignorant as gold to the goldsmiths." But if you thought you were buying gold, you're not likely to be pleased to find out that it was really only brass with a nice shine.

In the competitive world of retail jewelry, shiny sells. And very few materials offer as much shine as Rhodium. So making jewelry shine - even gold, silver or platinum jewelry - sometimes means plating it with Rhodium. Unfortunately, much of this plating is a secret to consumers, as most retailers don't ever mention that the little gold or platinum ring you just purchased is actually plated in a metal you've likely never heard of. Most consumers find out when the Rhodium wears off and the jewelry loses its shine, or even changes color.

FTC Strikes Back at Pom Wonderful's End Run

FTC lawyers have filed a motion to dismiss POM Wonderful's pre-emptive suit against the FTC challenging what it says it is a new rule requiring pre-approval before a company can make health claims.

POM filed suit in September, just before the FTC brought an administrative complaint against POM alleging false advertising regarding the health benefits of POM's pomegranate-based products.

Pom Not So Wonderful?

It's an ironic twist that Pom Wonderful, which once sued a competitor for misrepresenting its product, is now the target of an FTC administrative complaint for...you guessed it -- making false claims about its products. Sad, but true.

The Federal Trade Commission has issued an administrative complaint charging the makers of POM Wonderful 100% Pomegranate Juice and POMx supplements with making false and unsubstantiated claims that their products will prevent or treat heart disease, prostate cancer, and erectile dysfunction.

It's Not Easy Being Green

With apologies to Kermit, it might be getting a little easier to be "green".

The FTC has proposed new Green Guides on marketers' use of environmental claims, intended to clarify the existing Guides and make them easier for companies to follow. In particular, the FTC is concerned about the gap between what companies think "being green" means and what consumers think it means. As always, the key is whether the claim is deceptive, and leaving out important clarification details or qualifying information (as many marketing pros like to do to move product) can increase the likelihood of deception.

Dave & Buster's Busted for Loose Practices

Dave & Buster's, an entertainment and restaurant chain, was caught not minding its customers private information, and now it has to pay the piper.

The FTC, in an action announced today, has settled charges that Dave & Buster's did not take reasonable steps to protect its customers' credit card information. As a result of the lax security, some customers' credit cards were compromised by a hacker who got into the company computer system, and several hundred thousand dollars in fraudulent charges were made. No doubt the banks that issued the cards are not happy about the bogus charges, but the customers are the real victims here.

Walgreens Not Immune From False Advertising Claims

No one is immune from paying a price for deceptive advertising. Someone always pays: either the consumer who is fooled, or the company that made the product, or even the seller, if they get caught.

The FTC announced this week that it had settled a complaint against Walgreens:

National pharmacy chain Walgreens has agreed to pay nearly $6 million to settle FTC charges that the company deceptively advertised “Wal-Born” – a line of dietary supplements similar to the Airborne cold-and-flu treatment – using the same kind of baseless claims that the supplements could prevent colds, fight germs, and boost the immune system.

Nice to have you back, FTC!

The Federal Trade Commission announced yesterday it is distributing $3 million in refunds to consumers who purchased infrared saunas and nutrition supplements from Roex, Inc. based on false advertising claims about the benefits of using the products. Imagine that?! An FTC that actually gets money back for consumers who are the victims of bogus claims in an infomercial! This is a very good thing.