Leading eCommerce Law Attorney for Online Businesses

As a leading eCommerce lawyer, Mr. Newman works alongside clients to review and evaulate subscription and automatic renewal eCommerce business practices.

The Federal Trade Commission, state Attorneys General and private plaintiffs actively police brands that utilize negative options, including subscriptions and automatically renewing products and services.  An experienced eCommerce attorney like Mr. Newman assists marketers with minimizing liability exposure by aligning such practices with legal regulatory expectations.

eCommerce practices that are designed to utilize a consumers silence to impose recurring charges or renewals are a high-risk business model and a regulatory favorite.  Such practices are regulated by, without limitation, the Restore Online Shoppers’ Confidence Act, the Telemarketing Sales Rule, Section 5 of the FTC Act, and other applicable federal and state unfair and deceptive trade practice legal regulations.

As a seasoned eCommerce lawyer, Mr. Newman educates clients on applicable requirements that govern such programs, including but not limited to, ensuring that material terms are “clearly and conspicuously” disclosed, inspecting cancellation mechanism to ensure that they comply with legal regulatory standards, obtaining affirmative express consent, and recordkeeping.

“Dark patterns” often associated with negative option marketing programs  - disguised ads, difficult-to-cancel subscriptions, buried terms, and tricks to obtain data - often result in consumer complaints and unwanted legal problems.  Mr. Newman’s sophisticated knowledge of applicable legal regulations and case law distinguish him and the firm from other eCommerce attorneys

With greater regularity, eCommerce-based business face legal challenges surrounding negative options, free trials, and automatically renewing products and services.  As an experienced eCommerce lawyer, Richard Newman provides a distinct benefit to clients that are interested in mitigating potential liability exposure or that are facing legal challenges associated with marketing operations.

It is crucial for those that utilize such models to consult with an eCommerce attorney in order to be informed of the legal implications of subscription-based services, including automatic renewals, trial offers and continuity plans.

At the federal level, the Federal Trade Commission enforces, without limitation, the Restore Online Shoppers’ Confidence Act.  ROSCA prohibits any post-transaction third party seller (a seller who markets goods or services online through an initial merchant after a consumer has initiated a transaction with that merchant) from charging any financial account in an Internet transaction unless it has disclosed clearly all material terms of the transaction and obtained the consumer’s express informed consent to the charge.

“Clear and conspicuous” disclosures are the centerpiece of ROSCA.  “All material terms” must be adequately disclosed prior to obtaining the consumer’s billing information.  Additionally, a consumer’s expressed informed consent my be obtained prior to charging the consumer’s credit card, debit card, bank account or other financial account for products or services through such transaction.  And, a “simple mechanism” for a consumer to stop recurring charges must be provided.

ROSCA violations are aggressively enforced by the FTC or state attorneys general as unfair and deceptive acts and practices.  Importantly, the FTC is entitled to seek, amongst other remedies, monetary civil penalties, consumer redress and damages.  There is no private right of action for a direct ROSCA violation.

The FTC’s Negative Option Rule covers pre-notification negative option programs.  Despite the Commission’s recent attempts to expand the coverage thereof beyond merely having to provide notice to consumers prior to the shipment thereof and charges therefor (“Click to Cancel Rule”), in July 2025 a U.S. Court of Appeals vacated the proposed amendments.  

The FTC also enforces the Telemarketing Sales Rule.    In part, the TSR obligates telemarketers to make various disclosures and provides instruction on how and when such disclosures should be made, prohibits misrepresentations and deception, provides for calling curfews, precludes calls to consumers that have requested that they not be contacted, provides for various upselling restrictions, and provides for various payment-related restrictions.  The TSR covers, in pertinent part, negative option plans such as auto renewals offered via telemarketing.  With limited exemptions, the TSR also applies to business-to-business contracts.

TSR violations are also aggressively enforced by the FTC.  State attorneys general also frequently pursue do-not-call request violations.  

ARL violations are not only enforced by the FTC, state attorneys general can enforce such activity under state unfair and deceptive acts and practices consumer protection laws.  State ARL legislation often imposes requirements that exceed federal standards

A majority of states are either bolstering or passing new ARL legislation and the requirements can vary significantly amongst and between states.  An experienced eCommerce lawyer can assist marketers using negative option features to comply with the patchwork of applicable federal and state ARL requirements. 

State ARLs typically share numerous core components, including, without limitation, the implementation of adequate disclosures, obtaining express affirmative consent, obtaining post-purchase acknowledgements, provisions pertaining to attempts to save or dissuade consumers from cancelling, notice of the dissemination of renewal reminder notices, notice of material changes, and the implementation of simple cancellation mechanisms.

States such as, without limitation, Arkansas, California, Colorado, Connecticut, Maine, Maryland, Massachusetts, Minnesota, New York, Utah and Vermont have ARL legislation.  Perhaps the most thorough and aggressive state ARL legal regulations are found in Massachusetts and California.

California recently amended its existing ARL to impose new obligations on businesses offering subscription-based services to California consumers.  The amendments become effective on July 1, 2025.  The amendments include, without limitation, stronger disclosure and consent requirements, recordkeeping requirements, simplified cancellation requirements, prohibition on transaction related misrepresentations and omissions, and other notice requirements. 

eCommerce business that offer auto-renewing products and services should consider working with an  experienced eCommerce attorney in order to align automatic renewal practices with applicable compliance requirements.