FTC Defense Lawyer
FTC defense lawyer Richard B. Newman of Hinch Newman LLP has served as advertising defense counsel on some of the highest-profile online marketing-related Federal Trade Commission (FTC) and state attorneys general investigations (CIDs) and enforcement actions in recent years. He is a leader in defending FTC consumer protection agency actions – representing clients in regulatory matters involving deceptive conduct under Section 5 of the FTC Act and state UDAP laws. Exclusive focus on advertising law assists marketers walk the line between commerce and compliance.
If an investigation is launched, or if the Federal Trade Commission or a state AG has initiated an enforcement action against your company, it is imperative that you contact an experienced FTC defense lawyer and CID defense attorney with sophisticated regulatory litigation capabilities, and a long-established practice of implementing aggressive, winning strategies designed to successfully resolve agency inquiries and lawsuits on behalf of marketers.
- Consumer Protection Law
- Unfair and Deceptive Acts and Practices (UDAP)
- Section 5 of the FTC Act and “Little FTC Acts”
- Marketing and Advertising Compliance
- Risk and Liability Mitigation Strategies
- Remediation Plans
- Claim Substantiation Proceedings
- Government Investigations
- Civil Investigative Demands (CID)
- Compulsory Process
- Notices of Penalty Offense Authority
- Motions to Quash
- Investigational Hearings
- Pre-Suit Settlement Negotiations
- Optimal Resolution Positioning
- Government Litigation and Enforcement Defense
- Administrative Actions
- Temporary Restraining Orders (TRO) and Injunctions
- Asset Freezes and Modifications (e.g., Living Expenses and Attorneys' Fees)
What is an FTC Defense Lawyer?
Advertisers and marketers today confront an aggressive governmental consumer protection enforcement environment. Digital marketers often turn to a niche legal counselor with government, regulatory, consumer protection defense and compliance experience for sophisticated, practical, well-rounded and effective representation.
A seasoned FTC defense lawyer is uniquely positioned to handle the initial and subsequent consequences of FTC, state Attorney General and other consumer protection enforcer Civil Investigative Demand (CID) investigations, enforcement proceedings, lawsuits and administrative actions.
FTC practice counsel also possesses considerable experience and success regarding pre-CID investigation prevention, mitigation and resolution of advertising-related regulatory matters via case closure, settlement or litigation.
The firm is first and foremost in the business of prevention, working with client to ensure that advertising and marketing campaigns do not run afoul of applicable legal regulations. Only after learning about a marketers business operations and protocols can a diligent FTC advertising compliance attorney provide strategic advice and formulate methods to minimize regulatory exposure alongside the evolving rules and policies of federal and state regulatory agencies so that marketers can operate safely and productively.
The firm has considerable experience assisting advertisers and marketers develop and implement internal and external compliance protocols via the allocation of sometimes limited resources focused upon issues of highest risk.
If allegations of misconduct are made by the FTC's Bureau of Consumer Protection or a state Attorney General, experienced regulatory compliance and defense counsel with a particular focus on digital marketing possesses the knowledge to aggressively and strategically defend the company and/or individuals if a CID investigation or lawsuit is commenced.
The firm handles a broad range of regulatory compliance cases and our practice differs from other government, regulatory and digital marketing law firms in that we emphasize practical and comprehensive solutions for Internet marketers and telemarkers, while combining extensive knowledge of performance marketing operations with the legal regulatory landscape.
The firm's mission is to assist marketers to comply with applicable laws and regulations, manage risk, resolve regulatory challenges and advocate for clients' business interests.
What is the Federal Trade Commission’s Consumer Protection Enforcement Authority Under the Federal Trade Commission Act?
|Statute||Federal Trade Commission||Department of Justice||State Enforcement Authorities||Private Parties|
|FEDERAL TRADE COMMISSION ACT (15 U.S.C. §41 et seq.)|
|Cease and Desist||administrative cease and desist authority [§5(b) FTCA]|
|Prosecution||prosecution for violations of §12(a) FTCA [§14 FTCA]|
|Injunctive (and Other Equitable) Relief||judicially ordered injunctive relief [§13(b) FTCA; also §13(a) FTCA (for violations of §12(a) FTCA) and §5(l) FTCA (for violations of cease and desist orders)]|
|Redress||judicially ordered redress also for rule violations [§19(a)(1) FTCA] and for “fraudulent or dishonest” conduct [§19(a)(2) FTCA]|
|Civil Penalties||judicially ordered civil penalties for violating cease and desist orders [§5(l) FTCA and Commission Rule 1.98(c); also §5(m)(1)(A) FTCA (for violations of trade regulation rules) and Commission Rule 1.98(d); also §5(m)(1)(B) FTCA (for violations of adjudicatory cease and desist orders by non-parties) and Commission Rule 1.98(e)]|
|Criminal Penalties||referral to U.S. Department of Justice [§16(b) FTCA]|
Few FTC Lawyers Have the Regulatory Litigation, Defense and Ad Compliance Experience as Hinch Newman
Hinch Newman is the premier digital marketing, and regulatory compliance and litigation defense law firm in the country.
The firm regularly appears before the Federal Trade Commission and state Attorneys General. As a result, the firm is at the pulse of the advertising and marketing regulatory environment, and often provides clients with information and early warning on legal regualtory issues that either have been been or are in the process of being prioritized for investigation and enforcement by the Bureau of Consumer Protection. Additionally, Mr. Newman has secured a hard-earned reputation amonst various FTC staff attorneys for negotiating and engaging in adversarial proceeings, in good faith..
Hinch Newman is a one-of-a-kind digital media law firm with the most well-rounded and thorough understanding of the various business models that comprise the performance marketing universe, including the legal regulatory risks and solutions for those that market online or engage in various forms of telemarketing.
Hinch Newman Selected to Author Consumer Protection Section of Prestigious ALM FTC Law, Practice and Procedure Treatise
Hinch Newman possesses demonstrated distinct subject matter expertise and a track record of success in the fields of digital advertising compliance, investigations (CIDs) and regulatory defense. As a result, FTC compliance and defense attorney Richard B. Newman has been selected to assume authorship of the Consumer Protection Section of the prestigious American Lawyer Media International Federal Trade Commission: Law, Practice and Procedure Treatise, a comprehensive resource for developments of concern to advertisers, marketers and legal professionals that practice before the Commission.
The firm’s contributions feature detailed analyses of emerging legal regulatory issues pertaining to advertising and marketing compliance, civil investigative demands, judicial litigation and administrative enforcement actions, rulemaking, civil penalties and consumer redress, legislative updates, evolving guidelines of unfairness and deception, data privacy in designated market sectors, telemarketing regulations and case law developments.
The firm possesses over 15 years of cutting-edge experience representing digital marketers, brands, networks, affiliate publishers, lead generators, intermediary service providers (e.g., payment processors) and telemarketers on the full scope of applicable online advertising laws and rules, Federal Trade Commission and state Attorney General campaign compliance, CID investigations and enforcement proceedings.
Traditional lawyers and law firms that do not exclusively focus upon advertising, digital marketing and telemarketing legal issues - all day, every day, typically struggle to stay abreast of rapidly evolving regulations and policy, as well as the ever-changing and unique performance marketing strategies and business models. Both are critically necessary in order to provide clients with all-inclusive legal support for all of their advertising matters and to best advise on deepening consumer engagement, motivating consumer action, minimizing legal risk, and providing solutions in order to optimally defend against private and government-plaintiff inquiries and litigation matters.
The laws regulating advertising law and data privacy law are complex and changing rapidly. The potential for corporate and personal liability arising from misleading or non-compliance marketing practices or data privacy protocols can be catastrophic. An FTC lawyer can assist Internet marketers to minimize risk, and market safely and effectively.
The firm possesses a wide range of in-depth knowledge concerning marketing, advertising, lead generation best practices and promotion. Whether a client is launching or promoting a big-money advertising campaign, managing complex marketing and social media advertising programs or building a distribution network, Hinch Newman has the experience advising clients how to mitigate risk and advance their business goals.
Hinch Newman has defended a broad spectrum of digital marketers across myriad substantive advertising and telemarketing law matters in response to regulatory CIDs, subpoenas, lawsuits and other inquiries. In fact, the firm has handled a wide range of federal, state and local government inquiries, litigation matters and administrative proceedings..
The firm possesses an excellent record of resolving such inquiries and actions amicably, including by persuading the Federal Trade Commission or other regulatory agencies that enforcement proceedings are not warranted or by negotiating favorable settlement terms.
In the event that litigation is necessary and settlement is not practical, experienced FTC defense lawyers such as Richard Newman stand ready to litigate any allegations that may be initiated, mount a strong defense and zealously petition the court for relief.
With respect to the latter, for example, the firm has successfuly secured the use of frozen funds for necessary living expenses, mortgage payments and attorneys fees, modified the scope of asset freeze orders, and secured exemptions for homes, automobiles, retirement accounts, insurance policies, personal belongings, and spousal income and assets. The firm has also delivered settling defendants with the ability to avoid the imposition of permanent bans, secured "suspended judgments" based upon the truthfulness of personal and corporate asset disclosure forms, secured favorably modified injunctions and asset forfeiture provisions, and secured fewer and less burdensome reporting requirements.
In the end, the firm uses its comprehensive knowledge and experience to obtain the best possible result.
FTC Regulatory Landscape Webinar
Learn Strategies for FTC Advertising Compliance, Responding to CIDs and Defending Enforcement Actions
In this recent program with Lawline - a leading provider of online continuing legal education offering intelligence to attorneys across the country - FTC defense attorney Richard B. Newman discussed advertising and promotional marketing campaign compliance, FTC CID investigations and FTC lawsuits.
Click on the thumbnail to check out a clip from the webcast.
Served an FTC CID or lawsuit? Need advertising compliance advice?
Top FTC Advertising Consumer Protection Enforcement + Investigation Defense Law Firm
The firm’s core practice of FTC advertising law compliance and defense translates into a focus upon the complexities of this area of the law. It is this concentration that distinguishes the firm.
The firm has extensive experience representing clients in Federal Trade Commission, state Attorney General, U.S. Department of Justice, Consumer Financial Protection Bureau, Department of Consumer Affairs, Electronic Retailing Self-Regulatory Program and Public Utility Commission investigations and enforcement matters involving allegations of licensure, consumer fraud, false advertising and unfair business practices.
The firm possesses particular skills in order to negotiate and resolve a broad range of state and federal government investigations and litigation matters on behalf of our clients. What do you do first? How do you keep your options open? How do you limit disruption and minimize the damage? How do you ensure that your company’s concerns are considered and addressed? When faced with a government agency inquiry or complaint, selecting the right FTC defense attorney and responding appropriately in order to condition a positive outcome is vital.
Advertising and marketing legal regulations are not limited to the federal level. Every state, through its attorney general or local Department of Consumer Affairs, enforces unfair trade practice laws. Sometimes, state AG investigations and enforcement actios are coordianted in parallel with the FTC.
The firm has successfully defended a diverse client base, including performance marketing networks and technology companies ranked on Inc. Magazine’s Annual 500/5000 List, in high-stakes federal and state government investigations and enforcement proceedings. Consumer protection legal regulations are complex and evolving. Hinch Newman protects and defends clients that turn to the firm for advertising, marketing and media counsel, such as:
- Product and service providers
- Affiliate and ad networks
- Payment processors and service providers
- Pay-per-call networks
- Lead generators
- Lead buyers
- Email marketers
- Tech entrepreneurs and start-ups
- Entertainment and media companies
- Film, television, digital and mobile companies
- Collections companies
- Home improvement contractors
- Towing operators
- Health and fitness clubs
- Auto dealerships
- Call centers
The firm's extensive representative experience with Internet, lead generation, data privacy and telecommunications-related legal matters, coupled with an impeccable reputation amongst local, state and federal regulatory bodies, have benefitted clients through insight into developing agency policies and the prompt closure of complex investigations (CIDs) amicably, rather than the initiation of formal enforcement proceedings.
How Can an FTC Attorney Implement Successful and Aggressive Defense Strategies That Protect Vital Interests?
The FTC possesses the ability to refer matters to the U.S. Department of Justice for criminal prosecution. As a result, regulation of unfair or deceptive advertising and marketing practices can be just the beginning. Selecting the right counsel if of paramount importance.
The firm’s government litigation and compulsory investigation experience, coupled with its concentrated focus, translates into strong client service. The firm brings a wealth of knowledge about regulatory agency staff attorneys and senior management, courts, judges and receivers.
Clients are offered reasonable and reliable budgets, as well as optimal, cost-effective solutions that suit their business objectives. The firm also obtains and subscribes to sophisticated legal regulatory research, news and analytics services that help us win arguments, persuade decision-makers, secure favorable outcomes and protect assets.
The firm is an FTC investigation and litigation defense leader as evidenced by its representative experience, successful results, satisfied clients, recognition from peers and media, and awards. We represent and advise clients in the full range of government-plaintiff investigations, civil litigation, enforcement actions, and government inquiries.
Our first priority is always to resolve problems quickly with no charges filed, litigation, or adverse publicity by efficiently and effectively identifying the heart of an issue and leveraging our reputation with enforcement authorities on behalf of our clients. If litigation is called for, however, our solid FTC attorney defense experience enables the firm to minimize business disruption and cost-efficiently marshal facts and law to coordinate regulatory settlements and manage litigation risk.
Supreme Court Limitation on FTC Authority to Obtain Monetary Relief Under §13(b) of the FTC Act
In April 2021, the U.S. Supreme Court unanimously held that §13(b) of the Federal Trade Commission Act does not give the Federal Trade Commission the power to seek equitable monetary relief such as disgorgement or restitution. The opinion (AMG Capital Management LLC v. Federal Trade Commission) removes a powerful tool that the FTC has relied upon for a long period of time to pursue monetary relief in federal court in consumer protection matters.
Traditionally, the FTC has had authority to prosecute unfair or deceptive acts or practices in federal court under §13(b) of the FTC Act. The FTC has utilized this authority to enjoin a defendant that “is violating, or is about to violate” a law that the FTC enforces and such an injunction is in the public’s interest.
Historically, courts have also interpreted §13(b) in the FTC’s favor, giving the agency an implied right to recover “equitable monetary relief,” such as disgorgement and restitution, in addition to injunctive relief. The FTC has enjoyed this process largely because it does not take as long or contain the same hurdles prior to seeking monetary relief as other agency enforcement tools.
The Supreme Court ruling in AMG, however, drastically limits the FTC’s remedial authority under Section 13(b) of the FTC Act to seeking only injunctive relief.
In a unanimous decision written by Justice Breyer, the Supreme Court held that the statutory language of §13(b) did not authorize the FTC to seek equitable monetary relief, including disgorgement and restitution, because the foregoing is not a form of injunctive relief. The statute does allow the FTC to continue to seek injunctive relief.
Importantly, the Supreme Court also opined that §13(b) is meant to address prospective relief – the FTC can initiate legal action when a defendant is “violating, or about to violate” the law - and not the backward-looking relief that equitable monetary relief addresses.
The FTC continues its attempts to work around the AMG decision because it has resulted in a sea change as it pertains to the FTC’s ability to secure monetary relief against companies accused of unfair or deceptive practices.
While Section 13(b) has, until recently, been relied upon by the FTC to proceed directly to court for monetary relief without first going through an adjudicative proceedings via an Administrative Law Judge, there are situations that the FTC files a complaint under its administrative process instead of taking the case to a federal court. There has been a significant up-tick in adjudicative proceedings since the AMG ruling.
Congress added Section 19 of the FTC Act allows courts to grant relief necessary to redress consumer injury if the FTC first issued a final cease-and-desist order. While Section 19 does provide for equitable monetary relief, is not a preferred course for the FTC, in part, due to the inclusion of a statute of limitations period and a knowledge requirement.
Section 19 also allows the FTC to seek redress in federal court without going through an ALJ if the defendant has violated certain agency rules, including, but not limited to, the Telemarketing Sales Rule. The FTC has also been actively engaged in initiating new rulemaking proceedings to curb unfair or deceptive practices, including, but not limited to, endorsements and influencer marketing, and work-from-home and business coaching programs.
Section 19 has a three-year statute of limitations. Also, obtaining monetary relief under Section 19 often takes significantly longer to achieve that under Section 13(b).
The FTC has also revived its dormant Penalty Offense Authority, sending warning letters to companies and individuals to place them on notice that they may be stiff civil penalties for engaging in behavior the FTC has previously declared unfair or deceptive.
The FTC also often investigates and litigates alongside its state regulatory colleagues to seek monetary relief, including State Attorneys General. Numerous states consumer protection legal regulations may even provide for additional monetary relief than would otherwise have been available to the FTC, alone.
The FTC will most likely continue to aggressively pursue enforcement actions seeking monetary relief. However, it will likely do so via different approaches, such as Section 19 administrative proceedings and Section 19 federal court proceedings, provided that the FTC has first demonstrated that “a reasonable man would have known under the circumstances that the conduct was dishonest or fraudulent.”
Rulemaking and Notice of Penalty Offense authority are also weapons that the FTC intends to continue to utilize.
How Can Leading FTC Defense Lawyers Achieve Optimal Resolution of Regulatory Matters?
Much of the firm’s work focuses on handling regulatory inquiries by and requests for information from FTC CID attorneys pertaining to deceptive marketing and unfair trade practices, with a particular concentration upon defending corporate clients and individuals in the ad tech industry that have received an FTC CID, subpoena, access letter or demand to comply with an ex parte temporary restraining order..
As an FTC attorney, Mr. Newman has successfully resolved many FTC inquiries on behalf of Internet marketers and web-based businesses, from data privacy and lead generation inquiries, to telemarketing and Consumer Review Fairness Act information requests, to FTC proceedings focused upon claim substantiation compliance and the Restore Online Shoppers’ Confidence Act (“ROSCA”).
The strength of the firm’s FTC CID investigation defense practice is its digital marketing industry in-depth knowledge and focus, professional leadership, ability to manage complex legal issues, attentiveness to time sensitive business matters, consistent delivery of positive results, innovative advice, diverse experience and familiarity with internal regulatory processes, all of which provide us with unique insights into understanding our clients’ businesses and allocating resources in a cost-efficient manner with the aim of investigation closure.
This experience provides the firm with a unique ability to anticipate FTC CID attorneys next steps, reduce the length and complexity of FTC civil investigative demands and subpoenas,, provide tailored advice, plan and execute efficient and comprehensive responses, and quickly pinpoint key issues identifying the optimal path forward with a focus upon achieving the most favorable resolution with minimal business disruption or reputational damage.
Hinch Newman is the go-to outside law firm for digital marketers, media companies and technology providers seeking FTC attorneys with deep experience across a broad range of high-risk niches, from data aggregation and call center telemarketing operations, to social media marketing and business opportunities.
FTC Compliance Lawyer for Cost-Effective Preventative Reviews of Marketing Campaigns
Digital technology has dramatically changed the rules of advertising and marketing. The firm is a leader in assisting digital marketers of all kinds to navigate legal regulatory landmines.
The firm is at the forefront of tech innovations and developing legal regulatory issues to ensure marketers remain complaint with applicable requirements, and that FTC investigations and enforcement proceedings are avoided or optimally resolved. We possess the unique ability to develop and revise client policies to minimize risk exposure, develop and negotiate marketing contracts, proactively evaluate marketing practices, review marketing collateral, develop and implement credentialing and monitoring programs for marketing partners that can act as a defense argument in the event of regulatory inquiry, and implement tailored compliance programs.
Hinch Newman is able to impart preventative guidance on risk-minimization issues and develops strategic campaigns and corrective action plans that comply with applicable advertising and marketing laws, regulations and policies. We work side-by-side with our clients to anticipate industry developments and formulate strategic compliance measures that go a long way toward avoiding regulatory scrutiny in the first place.
FTC compliance attorneys can be an indispensable asset in connection with advertising, promotion and marketing activities. The firm regularly advises clients on a broad range of local, state and federal laws regulating advertising endeavors, including, but not limited to, the following:
- Advertising campaigns and associated promotional materials
- Advertising and marketing legal regulation compliance and litigation
- Automatic renewal, negative option, subscription-based and recurring revenue business models compliance and litigation (ROSCA and state ARLs)
- Business Opportunity Rule compliance and litigation
- CAN-SPAM Act compliance and litigation (and related state anti-SPAM email marketing compliance and litigation)
- Child-directed marketing
- Claim Substantiation Guideline compliance and litigation
- Comparative and competitor advertising
- Consumer Review Fairness Act ("CRFA") compliance and litigation
- Contests, sweepstakes and games of chance
- Data usage, privacy and security
- Deceptive pricing compliance and litigation
- Dietary supplement marketing compliance and litigation
- Digital, search, social and contextual advertising
- Dot Com Disclosure Guideline compliance and litigation
- Endorsement and Testimonial Guideline compliance and litigation
- Environmental and Green Claim Guide compliance and litigation
- False advertising compliance and litigation
- FTC CID investigations and enforcement actions
- FTC investigative, law enforcement and rulemaking authority
- Guarantees and warranties
- Guides Concerning Use of the Word "Free"
- Health Breach Notification Rule compliance
- Health Product Guidance compliance and litigation
- Industry-specific legal regulatory compliance and litigation
- Influencer and Review Guideline compliance and litigation
- Lead Generation Staff Perspective compliance and litigation
- Mail Order Rule compliance and litigation
- Marketing and promotional practices
- Mobile marketing compliance and litigation
- Multi-Level Marketing Guidance compliance and litigation
- Native advertising compliance and litigation
- Preventative legal regulatory and business operations compliance training
- Safeguards Rule
- Section 5 of the FTC Act compliance and litigation
- State Attorney General investigations and enforcement actions
- Telephone Consumer Protection Act (TCPA) compliance and litigation
- Technology platform provider liability
- Telemarketing Sales Rule (TSR) compliance and litigation
- Textile rules and labeling requirement compliance and litigation
- Truth-In-Advertising Guidelines compliance and litigation
- U.S. Origin ("Made in USA") compliance and litigation
Experienced FTC advertising compliance lawyers possess the ability to combine sharp knowledge of digital-oriented businesses and related technologies across a range of commercial advertising laws and regulatory issues, including applicable guidelines, into a single integrated approach, enabling the firm to leverage knowledge in one area to provide practical solutions in another.
Whether you are a manufacturer, seller, advertiser or an affiliate marketing network, an outsourced affiliate program manager, a lead generator or a publisher that markets products or services on the Internet – doing business online inherently presents both unique opportunities and risks. At Hinch Newman, years of Internet marketing compliance and regulatory defense experience in an ever-changing digital environment provides significant value to marketers.
FTC Lawyer With Reputation for Providing Strategic Legal Counsel to Digital Marketers
Existing and potential clients look to Hinch Newman for its demonstrated success serving as an FTC attorney providing effective counsel across a broad range of pre- and post-market advertising compliance and regulatory counseling services, including:
- Drafting and negotiating marketing agreements
- Developing internal compliance policies to mitigate the risk of unfair or deceptive advertising practices
- Designing and implementing appropriate remedial actions
- Critically examining privacy and data use protocols
- Critically examining dietary supplement promotional materials and underlying scientific literature
- Reviewing online training, business coaching, Amazon.com and eCommerce store programs for compliance with applicable laws, regulations and guidelines
- Reviewing email marketing campaigns for compliance with state and federal anti-SPAM legislation
- Reviewing telemarketing campaigns for compliance with the Telephone Consumer Protection Act, the Telemarketing Sales Rule and the FTC Act
- Designing third-party marketer credentialing questionnaires
- Reviewing promotional materials and social media campaigns for compliance with applicable guidelines and defining various threats (e.g., FTC Endorsement Guides and FTC Staff Perspectives on Lead Generation)
- Determining the extent of vulnerabilities and consequences for non-compliance
- Structuring online commercial marketing programs in accordance with agency regulations with a view towards warding-off potential litigation, altogether
Before marketers disseminate promotional materials or engage in telemarketing activities, they require competent and reliable information to decide whether their current approach complies with applicable legal regulations, the level of risk should it continue and practical solutions. The firm's knowledge of and experience with applicable advertising and marketing laws, regulations, rules and policies, coupled with our ability to help clients design promotional claims the provide a competitive advantage while minimizing the risk of legal or regulatory attack is simply unparalleled.
Regulatory investigations and enforcement actions alleging deceptive trade practices and false advertising are at an all-time high. Local, state, federal and international law enforcement partners remain extremely active in creating guidelines, and pursuing nationwide and international crackdowns that re-define how business is conducted both offline and on the Internet.
This is especially true with regard to important advertising and marketing regulatory issues such as:
- Automatic renewal laws
- Lead generation
- Commercial emailing
- Online training and business coaching programs
- Billing practices
- Electronic commerce
- Website disclosures
- Claim substantiation
- Social media influencer campaigns
- Business opportunities
- Creative content
- Suppression list management
- Intellectual property
- Data privacy
- Data protection
An FTC defense lawyer works closely with diverse clients that are engaged in the promotion of nutraceutical and dietary supplements, insurance services, business opportunities, social media influencer campaigns, automatically renewing subscriptions, and for-profit schools and career training programs on a wide array of issues, such as the design and implementation of compliant promotional, pre-sale and landing page compliance strategies in order to mitigate liability exposure and maintain conversions.
Online and mobile marketing campaigns that potentially include elements of unfair business practices can potentially ignite an investigation by the Federal Trade Commission, various state Attorneys General and local consumer protection agencies.
FTC attorneys and state Attorneys General are also laser focused on automatically renewing subscriptions and free trials conversions. States are consistently either enacting or bolstering automatic renewal laws in order to protect consumers. At the federal level, the Restore Online Shoppers Confidence Act and the FTC Negative Option Rule set forth the manner by which marketers are permitted to offer subscription-based services and continuity plans.
The firm has successfully represented numerous marketers and advertisers in FTC CID investigations and enforcement proceedings alleging violations of ROSCA and state ARLs. We also work with clients on related compliance matters in order to permit them to proactively avoid regulatory scrutiny.
When necessary, Hinch Newman acts as a strategic adviser to its clients in furtherance of devising countermeasures should an inquiry or lawsuit be initiated. Internet and mobile based businesses must be wary of the risks and proceed only after consultation with an experienced advertising compliance lawyer.
Business-Oriented Advice for Influencer Campaigns
Guidelines pertaining to the use of testimonials and social media influencer campaigns are in sharp-focus within the Internet marketing sector. According to the Federal Trade Commission, advertisers that use deceptive endorsements and reviews injure consumers with misleading tactics that subvert their choices at check-out, and divert business from competitors that may otherwise comply with the law.
In order to keep current with the state of technology and marketing, in June 2023 the FTC announced three important developments, including final revisions to the Endorsement Guides, a proposed new Rule on the Use of Consumer Reviews and Testimonials, and updates to a key FTC staff attorney guidance publication for businesses, endorsers, influencers and members of the advertising industry.
Final Revised Endorsement Guides
The Guides Concerning Use of Endorsements and Testimonials in Advertising were last revised in 2009 and offer advice for businesses and digital marketers on how the FTC Act applies in the use of endorsements. In May 2022, the FTC announced that it was seeking public comments on proposed updates to the Guides to ensure they reflect current advertising trends, including how long-standing legal principles apply to social media marketing and review platforms.
The revised Endorsement Guides reflect feedback received by FTC lawyers and recent law enforcement experience.
There are numerous final changes that merit attention, including:
- Articulating a new principle regarding not procuring, suppressing, organizing, upvoting, downvoting, or editing consumer reviews in ways that likely distort what consumers really think of a product.
- Addressing incentivized reviews, reviews by employees, and fake negative reviews by competitors.
- Adding a definition of “clear and conspicuous.” Disclosures must be "unavoidable."
- Warning that a platform’s built-in disclosure tool might not be adequate.
- Updating the definition of “endorsements” to clarify that it can include fake reviews, virtual influencers, and social media tags.
- Providing a clearer explanation of the potential liability that advertisers, endorsers, and intermediaries could face for violating the legal regulations, and
- Emphasizing special concerns with child-directed advertising.
Proposed Rule on the Use of Consumer Reviews and Testimonials
The FTC has also proposed a new Rule on the Use of Consumer Reviews and Testimonials based on comments the agency received in response to a November 2022 Advanced Notice of Proposed Rulemaking.
Imporantly, the FTC seeks to codify a rule that spells out prohibited practices and authorizes courts to impose monetary civil penalties in an effort to strengthen FTC enforcement actions and provide a deterrent effect when digital marketers map out their advertising and marketing strategies.
Advertisers and marketers will want to read the proposed text of the Federal Register publication. The proposed Rule would specifically prohibit the following practices:
- Selling or obtaining fake consumer reviews and testimonials. The proposed Rule would prohibit businesses from writing or selling consumer reviews or testimonials by someone: (i) that does not exist; (ii) that did not have actual experience with the product or service; or (iii) that misrepresented their experience. The proposed Rule would also prohibit businesses from procuring reviews or disseminating testimonials from those same three categories
- Review hijacking. The proposed Rule would ban businesses from using or repurposing a consumer review written for one product so that it appears to have been written for a substantially different product
- Buying positive or negative reviews. Businesses would be prohibited from providing compensation or other incentives contingent on the writing of consumer reviews expressing a particular sentiment, either positive or negative
- Insider reviews and testimonials. The proposed Rule would prohibit a company’s officers and managers from writing reviews or testimonials about its products without clearly disclosing their relationship. It also would prohibit businesses from disseminating testimonials by insiders without clear disclosures, and it would prohibit certain solicitations by officers or managers of reviews from company employees or their relatives
- Company controlled review websites.Businesses would be prohibited from creating or controlling websites that claim to provide independent opinions about a category of products that includes their own products
- Illegal review suppression. Businesses would be prohibited from using unjustified legal threats, other intimidation, or false accusations to prevent or remove a negative consumer review. Also, if negative reviews have been suppressed, the proposed Rule also prohibits a business from misrepresenting that the reviews on its website represent all submitted reviews
- Selling fake social media indicators. The proposed Rule would prohibit businesses from selling false indicators of social media influence, like fake followers or views. The proposed Rule also would bar anyone from buying indicators like that to misrepresent their significance for a commercial purpose.
Updated Staff Guidance
FTC’s Endorsement Guides: What People Are Asking has been a valuable resources for businesses, endorsers, influencers, members of the advertising industry and legal professionals for many years. The FTC has revised and signifincatly expanded the publication to answer dozens of questions that may be pertinent to advertising and marketing in the digital age.
The revised FTC staff publication particularly focuses upon influencers, the required disclosure of "material connections" across various platforms, and issues related to reviews. The FTC’s Endorsements, Influencers, and Reviews page for additional compliance resources written with businesses, platforms and influencers in mind.
If you use endorsements or social media influencers in your marketing they must meet the standards of the FTC Act and the FTC's Guidance Concerning Use of Endorsements and Testimonials in Advertising. Regardless of the platform, it is imperative that marketers take necessary steps to disclose material connections.
Additionally, consumers that rely on online reviews of companies, products, and services should be getting an accurate picture of what other consumers think. If you operate a website or platform that features reviews, it is vital to have processes in place to ensure those reviews truly reflect the feedback received from genuine customers.
The firm possesses profound familiarity with applicable FTC legal regulations, developing regulatory enforcement trends and the operations of digital marketers. The foregoing, in turn, enable us to proactively avoid regulatory proceedings via business-oriented FTC advertising law complaince advice and cost-effective resolution of any claims that may arise.
How can an FTC Defense Attorney Assist with Internet Privacy Matters?
The FTC’s ban on unfair and deceptive practices has allowed it to challenge harmful privacy and security-related violations. Businesses have found themselves in the crosshairs for deceptive representations concerning the collection, use and sharing of consumer data.
Emerging privacy and data security compliance requirements are critical risk management components for digital advertisers and marketers. In addition to representing marketers, advertisers, media and Internet companies in connection with the legal aspects of their nationwide advertising campaigns, Hinch Newman advises clients on the design and implementation of protocols governing collecting, aggregating, disseminating and protecting user data.
The FTC has recently signaled that it intends to increase data privacy-related investigations and enforcement, including, but not limited to, its Children’s Online Privacy Protection Act Rule and requirements surrounding verifiable parent consent. The FTC recently revamped its FAQ’s for complying with COPPA.
Mr. Newman is an FTC defense attorney, and government litigation compliance and consumer protection defense counselor. He possesses the foundational experience to provide guidance on emerging legislative and regulatory policy issues, as well as practical and creative solutions to complex operational problems. An equally significant portion of the firm’s practice includes defending clients in federal and state data privacy-related inquiries and enforcement actions.
National Law Review Go-To Thought Leader Award Winner
In 2019, 2020 and 2021, FTC lawyer Richard B. Newman received the “Go-To Thought Leader Award” from the National Law Review. The awards recognize the unique talents of less than 1% of the publication’s 15,000 thought leaders and spotlights exceptional legal authors selected from a pool of over 100,000 news articles.
Mr. Newman received the awards as a result of his demonstration of a depth of legal knowledge pertaining to FTC enforcement, regulation and compliance.
You can count on the firm's formidable experience to navigate through government inquiries and investigations by FTC CID attorneys that may include lawsuits or proceedings, settlement discussions, consent decrees, assurances of voluntary compliance and asset freezes. Asset freeze orders are designed to prevent the dissipation of assets, are often issued without notice and can have potentially serious consequences because they make it difficult for defendants to pay necessary living expenses, taxes and legal fees. An experienced FTC lawyer can assist with the modification of onerous asset freeze orders via negotiation with FTC staff and, when necessary, via aggressive litigation.
If you have received an access letter, a subpoena or a civil investigative demand (CID) from a regulatory agency FTC CID lawyer or are otherwise the target of a government investigation, an audit triggered by a regulatory enforcement action or a defendant in state or federal court involving your business practices or advertising methods, contact an FTC lawyer for a free consultation to ensure that your matter is handled correctly and proactively, right from the start.
As a distinguished FTC and state Attorney General regulatory compliance, investigation and litigation defense law firm, we also have the experience to critically examine best business practices while effectively maximizing revenue.
We are prominent FTC defense lawyers and authorities on unfair business practices risk-analysis and compliance issues. You need an FTC attorney that concentrates on conducting detailed internal audits to confirm that applicable legal and regulatory standards are being met. We provide advice and qualitative risk-management counsel to individuals and corporations regarding new and existing regulatory initiatives, potential liability exposure, and subsequent recommendations for any necessary process changes or corrective actions to ensure compliance.
FTC Defense Lawyer Noted and Quoted
The firm is a go-to resource for digital marketers, tech companies, legal professionals, consumer protection agencies, lawmakers, politicians, and national and international news outlets seeking legal regulatory compliance programs, first class government enforcement action and investigation defense, and featured commentary and poignant analysis on advertising, marketing and media.
Hinch Newman has been interviewed by and referenced across a number of media outlets, including AdExchanger, BBC News, National Law Review, The Chicago Tribune, Communications Daily, The Daily Journal, Forbes, Inside Edition, JD Supra, Law360, MSN, Native Advertising Institute, Newsday, Privacy Law Bulletin, The Star-Ledger, The Wall Street Journal, The Washington Times and Today’s Verdict. In July 2018, Mr. Newman was quoted by Communications Daily on the new leader of the Federal Trade Commission’s consumer protection unit.
In June 2018, FTC attorney Richard B. Newman was asked to present a continuing legal education webinar on advertising and marketing law for Lawline. You can view segments of the webinar here. He frequently writes on topics of particular interest to online advertisers and marketers. As a member of the Performance Marketing Association’s Compliance Council, he authored authoritative Blogging and New Media Disclosure Information.
Mr. Newman has also been cited as an FTC lawyer authority in conjunction with a petition for a writ of certiorari filed with the Supreme Court of the United States on the issue of whether the Federal Trade Commission is authorized to seek, and a district court to grant, monetary remedies against those that have violated the FTC Act.
Contact a law firm that focuses exclusively on Internet advertising and marketing compliance-related matters if you are the subject of a local, state or federal regulatory investigation or enforcement action, or if you are interested in implementing preventative measures.
The following are examples of select regulatory investigations (CIDs and subpoenas) and enforcement matters the firm has handled to successful resolution:
Represented developers of so-called mobile device and computer “stalking” apps in conjunction with a precedent-setting privacy and data security case brought by the Federal Trade Commission relating to such technologies. This first-ever investigation involved a number of cutting-edge, unsettled legal issues and was initiated by the FTC after a hacker was able to access the cloud storage account of the app developers. The FTC examined whether the Children’s Online Privacy Protection Act and/or Section 5 of the FTC Act had been violated. Drawing upon sophisticated knowledge of applicable advertising regulations, data privacy laws and FTC enforcement policy, the firm was able to successfully develop and implement a multi-faceted CID investigation defense strategy while productively liaising with a data security vulnerability penetration expert. As a result of these efforts, coupled with persuasive defense advocacy, this complex, highly-publicized investigation resulted in a non-monetary administrative settlement that avoided the initiation of enforcement proceedings.
- Represented an online lead generator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts and practices in connection with listings, descriptions, reviews, ratings, comparisons or endorsements of, or referrals to, providers of health-related services in violation of Section 5 of the FTC Act. The firm successfully secured the prompt closure of the investigation with no monetary penalty.
- Represented an affiliate network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with creation, sale and dissemination of online adult dating-related advertisements in violation of Section 5 of the FTC Act. The firm significantly narrowed the scope of the investigation without the FTC ultimately seeking any remedy.
- Represented individuals and corporate defendants in a Federal Trade Commission lawsuit filed on the agency’s behalf by the Department of Justice alleging that the company and its telemarketer made illegal robocalls to consumers, including tens of millions of calls to numbers listed on the agency’s Do Not Call Registry. The firm successfully negotiated favorable settlement terms that included the exclusion of numerous physical assets and monetary relief that amounted to a fraction of damages sought by the FTC in civil penalties without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
- Represented a lead aggregator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether brokers, servicers and other marketers of products and services had engaged in acts or practices in violation of other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
- Represented an online lead generator in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing, sale or servicing of products. The FTC was also investigating whether consumer brokers, servicers and the other marketers of products and services had engaged in acts or practices in violation of the MARS Rule, 12 U.S.C. § 5538, and other federal legislation designed to protect consumers. The firm successfully secured the prompt closure of the investigation.
- Represented a leading software development academy in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive and unfair acts or practices in the advertising, marketing or sale of secondary or post-secondary education products or services, or educational accreditation products or services in violation of Section 5 of the FTC Act. The firm successful secured the prompt closure of the investigation.
- Represented leading industrial tool manufacturer in conjunction with an investigation initiated by the Federal Trade Commission examining the marking, advertising, labeling and other promotional activities relating to the use of unqualified domestic origin claims for products. The purpose of the investigation was to determine whether the company was engaged in unfair or deceptive acts or practices in violation of Section 5 of the FTC Act and the FTC’s enforcement policy with respect to the use of “Made in USA” claims in advertising and labeling. The firm worked with the client to implement a remedial action plan to update and qualify its representations and ensure that the company did not overstate the extent to which its products are made in the United States. As a result, the firm successfully secured the prompt closure of the investigation.
- Represented owner of company in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining alleged false and unsubstantiated representations about the health-related benefits of dietary supplements in violation of Sections 5 and 12 of the FTC Act. The firm worked closely with the client and a scientific expert to critically assess the physiological properties of product ingredients, as well as the nature and degree of data in the client’s possession prior to dissemination of claims, in order to construct persuasive legal arguments regarding a reasonable basis for advertising claims. As a result of these efforts, in addition to the persuasive utilization of cutting-edge legal precedent limiting the FTC’s judicial enforcement authority, the firm successfully resolved the matter without the initiation of litigation enforcement proceedings.
- Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $9M in consumer harm as a result of a purported products and services scam through Internet websites, telemarketing, and unsolicited emails and text messages. The FTC was prosecuting what it alleged to be deceptive acts or practices in violation of Section 5 of the FTC Act, the Telemarketing Sales Rule (16 C.F.R. Part 310), the Consumer Review Fairness Act (15 U.S.C. § 45b) and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
- Represented data broker defendants in a Federal Trade Commission lawsuit alleging in excess of $4M in consumer harm as a result of the purported collection of sensitive consumer data submitted by consumers to lead generation websites and the distribution thereof to unanticipated third-parties that, in turn: (i) utilized the information to withdraw millions of dollars from consumers’ accounts without their authorization; and (ii) conducted unauthorized marketing activities by email, text message and telephone calls. The firm successfully negotiated favorable settlement terms without any admission of culpability, premised upon the truthfulness of defendants’ financial information.
- Represented an affiliate marketer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of monitoring services. In doing so, the FTC alleged that defendant lured consumers with fake rental property ads and deceptive promises of “free” reports. The firm successfully negotiated extremely favorable settlement terms, including reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC and that an affiliate marketer co-defendant was ordered to pay, premised upon the truthfulness of submitted financial information.
- Represented online lead generators in a Federal Trade Commission lawsuit wherein the Commission sought millions of dollars in damages as a result of what the FTC described as fake blogs, fake news websites, fake testimonials, the failure to disclose material connections and bogus free trial offers in conjunction with selling Acai berry weight loss products. The firm successfully negotiated extremely favorable settlement terms without any finding of liability. Defendants paid only a small proportion of the damages that their network co-defendants were ordered to pay and an even smaller fraction of the damages sought by the FTC, premised upon the truthfulness of their financial information.
- Represented defendants in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act in connection with the marketing and sale of document preparation services. The FTC alleged that defendants falsely claimed to be affiliated with the Department of Education and charged consumers illegal fees. The firm successfully negotiated extremely favorable settlement terms, including retention of funds, and reduced compliance reporting and recordkeeping obligations, without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of submitted financial information.
- Represented individual and corporate defendants in a Federal Trade Commission lawsuit alleging approximately $3M in consumer harm as a result of a purported products and services scam. The FTC was prosecuting what it alleged to be deceptive and abusive collection practices in violation of Section 5 of the FTC Act and other federal legislation designed to protect consumers. The firm successfully negotiated favorable settlement terms of nominal monetary value without protracted litigation, a finding of liability or any admission of culpability, premised upon the truthfulness of defendants’ financial information.
- Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations about certification programs, as well as the failure to clearly and conspicuously disclose material connections within purported independent websites. The firm successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of respondents’ financial information. The firm also successfully negotiated the exclusion of additional specific instances of alleged unlawful advertising conduct.
- Represented affiliate marketers in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining false and misleading representations in conjunction with an alleged Internet business coaching scheme that purported resulted in more than $125M in consumer harm. The firm assisted the individual client regarding invocation of the 5th Amendment privilege and successfully negotiated favorable settlement terms of nominal monetary value without any finding of liability, premised upon the truthfulness of the individual client’s financial information.
- Represented affiliate marketers in conjunction with investigations by the Florida Attorney General into the promotion of weight loss and automobile insurance products/services. The firm successfully negotiated extremely favorable settlements where respondents paid only a nominal proportion of the damages alleged by the FL OAG. Both matters were resolved promptly and quietly, without any resulting litigation or admission of culpability.
- Represented a pay-per-call network in conjunction with a subpoena issued by the Illinois Attorney General. Specifically, the investigation focused upon potential violations of the Illinois Consumer Fraud and Deceptive Business Practices Act by various third-party publishers pertaining to the advertising, soliciting and generation of leads. The firm successfully secured the prompt closure of the investigation.
- Represented online marketers in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act, in connection with the marketing and sale of academic degree and certification programs. In doing so, the FTC alleged that defendants misled consumers about their association with recognized high school equivalency programs through the use of deceptive metatags and website names designed to look like legitimate online high schools. The firm successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendants paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of their financial information.
- Represented a corporate officer defendant in a Federal Trade Commission lawsuit prosecuting what the FTC described as deceptive acts or practices in violation of Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, in connection with the marketing and sale of personal care product trial offers. The firm successfully petitioned the court to modify a broad-sweeping asset freeze and allow distributions for personal living expenses and to fully-satisfy outstanding obligations. The firm also successfully negotiated extremely favorable settlement terms without protracted litigation or a finding of liability. Defendant paid only a small proportion of the damages alleged by the FTC, premised upon the truthfulness of financial disclosures.
- Represented a digital marketing network in conjunction with a Civil Investigative Demand issued by the Federal Trade Commission examining deceptive acts or practices in connection with the creation, sale, and dissemination of online dating advertisements in violation of the FTC Act, 15 U.S.C. § 45. The firm dramatically narrowed the scope of the investigation which was promptly closed with no monetary remedy or enforcement.
- Represented a telemarketer in a Utah Division of Consumer Protection investigation regarding alleged violations of the Utah Consumer Sales Practices Act and the Telephone Fraud Prevention Act. The Utah DCP was focused upon whether consumers were contacted to make telephone solicitations while the telemarketers were not registered as a telephone soliciting business, whether the telemarketers informed consumers of the right to cancel and whether the telemarketers failed to furnish services after receipt of payment. The matter was resolved amicably and the investigation promptly closed after payment of an extremely nominal sum by respondent.
- Represented an email marketing company in an investigation by the New York Attorney General relating to alleged violations of the CAN-SPAM Act. The New York OAG was focused upon the company’s email marketing practices, related compliance considerations and third-party lead generation relationships.
- Represented an individual in conjunction with a subpoena issued by the Federal Trade Commission pertaining to a pending lawsuit alleging deceptive chain referral schemes involving cryptocurrencies. The FTC sought verbal testimony and documentation from the client. The firm successfully defended the subpoena without the client having to provide either. The matter was closed with no further inquiry or action.
- Represented an affiliate marketing network in conjunction with a subpoena issued by the United States Attorney’s Office regarding fraudulent “tech support” advertising campaigns. Specifically, the investigation focused upon alleged misrepresentations of affiliation with Microsoft, spoofed caller IDs, and the detection of viruses or other malware. The matter was concluded successfully with no further inquiry or action.
Represented merchant in conjunction with a subpoena issued by the Wyoming Attorney General examining misrepresenting the standard, grade, style, model, use, availability, value, price and discount of its merchandise; misrepresenting its approval, affiliation or sponsorship; and advertising under the guise of obtaining sales personnel when in fact the purpose of the advertisement is to sell merchandise to sales personnel applicants. The firm successfully negotiated extremely favorable settlement terms whereby respondent paid only a fraction of the statutory damages alleged and sought by the WY OAG. The firm also successfully negotiated terms that successfully minimized any negative publicity. The matter was resolved promptly and quietly, without any resulting litigation or admission of culpability.
Successfully defended full-service pharmacy located in New York City against highly-publicized consumer, New York State Office of the Attorney General and NYC Department of Consumer Affairs (n/k/a NYC Department of Consumer and Worker Protection) charges alleging the advertising or offering for sale certain necessary consumer protection goods during the outbreak of the novel coronavirus (COVID-19) at unconscionably excessive prices. The New York AG alleged violation of section 396-r of the New York General Business Law and the Rules of the City of New York (6 RCNY §5-38). The NYC DCA alleged violation of 6 RCNY §§ 5-38 and 5-42, also mandating compliance with NYC Administrative Code § 20-700, et seq. proscribing unfair, deceptive or unconscionable trade practices. The firm successfully resolved the NY OAG matter with no monetary settlement while avoiding the initiation of enforcement proceedings. The firm also successfully resolved the NYC DCA investigation by negotiating extremely favorable settlement terms where respondent paid only a small fraction of the damages alleged by the DCA. All matters were resolved quietly and amicably without any resulting litigation, finding of liability or any admission of culpability.