As online gaming companies compete for business, they are offering customers increasingly large incentives to play on their websites, often in the form of deposit bonuses. These deposit bonuses allow players to play with the bonus money as if it’s cash and keep the winnings (although players cannot cash out the bonus itself). However, some players and regulators believe that some of these promotions are misleading, because they allegedly do not clearly and conspicuously disclose all of the material terms of the offer.
The UK’s Advertising Standards Authority (ASA) recently banned an advertisement by online gaming operator Betway which allegedly failed to disclose the material terms of the offer. Betway’s homepage prominently advertised a “£50 Free Bet*.” By clicking on the asterisk, users were taken to a tab listing the bonus terms, which stated that the operator would match new customers’ first deposit, from £10 to £50, with a bonus that must be used within a week from the initial deposit.
The ASA determined that the “£50 Free Bet” advertisement was misleading because it did not disclose the material terms and conditions of the offer in a clear and conspicuous manner. The ASA asserted that the “£50 Free Bet” advertisement would lead the average user to believe that they would receive a truly free bet—not that they had to first pay £50 before they could receive the “free” bet as a deposit bonus.
Gaming companies, like all advertisers, must be vigilant in ensuring that their advertisements fully disclose the terms of any offer up front. This includes information such as how much money the customer will receive (in this case, a matching deposit bonus up to £50), what the customer must do to earn the bonus (make a deposit), when the customer will receive the incentive (whether they receive it in a lump sum immediately upon deposit, or whether additional milestones in play or deposits must be reached), and how long they have to use the bonus funds. In the United States, the Federal Trade Commission and state Attorneys General may bring actions for alleged deceptive advertising offers, and in many states customers may bring suit for the purportedly misleading offers. In operators’ quest to compete for customers and make attractive offers, they should proceed with caution and err on the side of full disclosure in doing so.
A California court ruled earlier this month that Overstock must pay a roughly $6.8 million penalty to settle claims that the retailer “routinely and systematically” made false and misleading claims about the prices of its products on its website. If upheld, this ruling could have significant effects on how companies use price comparisons in advertisements in the future.
A group of California District Attorneys sued Overstock in 2010 for $15 million, alleging that Overstock was deceptive in the way it determined and displayed price comparisons on its website. Overstock used a comparative advertising method based on price, which is commonly referred to as “advertised references prices” or “ARPs” that showed the price of a certain product on Overstock compared to the price of the same product from a different retailer. The lawsuit alleged that the ARPs that Overstock used were false or misleading because Overstock employees chose the highest price that they could find as an ARP or constructed ARPs using arbitrary formulas. The lawsuit alleged that as a result of Overstock’s method of constructing its ARPs, its savings comparisons were inflated.
A California state judge’s tentative ruling earlier this month levied civil penalties against Overstock of just over $6.8 million. The court dismissed some of the claims in the lawsuit, but found that Overstock’s pricing comparison violated the state’s laws on unfair competition and false advertising.
The court also issued an injunction that prohibits Overstock from comparison price advertising unless it is done in conformity with a lengthy set of court mandated practices outlined in the opinion. Among those requirements, the court ordered that Overstock explain its pricing more clearly on its website, including a disclosure of how it computes the price comparisons. The ruling also prohibits Overstock from setting average retail prices based on anything other than the actual retail price offered in the marketplace.
Overstock has said that they plan to appeal the court’s ruling by arguing that the court’s decision is misreading California law and is holding the company to a higher standard than other e-commerce sites. If this ruling is upheld, this could have a significant ripple effect on retail advertising for both online and brick-and-mortar businesses. Almost every state has a law regarding deceptive pricing in advertisement, and the Federal Trade Commission also has jurisdiction to pursue claims against deceptive advertising in price comparisons. Companies need to be aware if they are using comparative price advertising that those advertisements, and the formulas for determining the prices on those advertisements, will be scrutinized by government agencies.
LegalZoom and Rocket Lawyer Case over Misleading Advertising Heads to Trial – When is “Free” Really “Free”?
Last week, a federal judge in California declined to grant a summary judgment motion to LegalZoom.com, Inc., in its lawsuit accusing rival Rocket Lawyer, Inc. over claims of trademark infringement, unfair competition, and false and misleading advertising that focus on the use of the word “free” in advertisements by Rocket Lawyer.
LegalZoom and Rocket Lawyer are the two biggest names in the online legal services industry. Both companies provide users online legal services, including incorporation documents, and documents establishing divorces, trusts, and wills, for a small fraction of the price that it would likely cost if a lawyer handled these matters. LegalZoom began offering products in 2001 and has used the model of charging for legal forms. Rocket Lawyer came along in 2008 and has made forms free and charged for legal and advisory services to help people complete the forms.
On Rocket Lawyer, users are able to sign up for a free seven day trial that allows them free access to all services on the site. If the subscription is not cancelled within the seven day window, then it is converted to a paid subscription. In the complaint, LegalZoom alleges that ads run by Rocket Lawyer used the term “free” which it said violated federal law because users still had to pay state filing fees to finalize their incorporations, divorces and other filings, or sign up for a subscription to access the service.
Not long after the complaint was filed in this case, Charley Moore, the Founder and Executive Chairman of Rocket Lawyer, authored an insightful blog about why Rocket Lawyer is fighting LegalZoom in the case. Moore emphasized that many small businesses and individuals cannot afford the cost of traditional legal services and “free access to the basic tools of the legal system can both shield us and provide greater chances for success in the modern economy.”
In its decision last week, the district court held that genuine issues of material facts remain and denied LegalZoom’s summary judgment motion. The court was unwilling at this point in the litigation to rule that the advertisements by Rocket Lawyer regarding its “free” services were false as a matter of law because “a jury could reasonably conclude that the advertisements, when considered in context, are not literally false within the meaning [of the statute].” The court also held that at this point LegalZoom failed to carry its burden of proving that Rocket Lawyer’s advertisements actually deceive consumers.
The denial of summary judgment means that the case will proceed towards trial. This lawsuit could have potential implications for other businesses that use the term “free” in their advertisements as well as offering consumers a negative option enrollment plan. We will continue to follow the case here.