What everyone misunderstands about the FTC endorsement guides

If you're on Twitter, or run a blog, or do any self-promotion whatsoever, you may have become aware of the FTC Endorsement Guides. If not, you should.

There are people out there suggesting that you should end every blog post, every email, every everything by disclosing whether you have received anything free or below cost that you've mentioned in your post. That's certainly one way to be safe. Far be it from a lawyer to recommend against over-disclosing. But I think there's some confusion around what exactly is and isn't required, and I think there's a lot of overkill going on.

The actual text of the relevant section of the Guides (255.5) says:

When agents are better than lawyers, and vice versa

Agents and lawyers both negotiate contracts. They both seem to fill very similar roles. And they both want your money.

So how are you supposed to know whether you need one, the other, or both?

Oversimplifying the role of each of an agent and a lawyer:

If I were Harlequin, part 2: two more potential defenses they could use

In the last post, I gave two arguments that I could see Harlequin bringing up in the e-books litigation: at the relevant time these didn't seem like unreasonable rates, and that inter-company deals are standard to the entertainment industry.

But these aren't the only defenses I could see Harlequin bringing up... I promised four, I've delivered two, so here's the others.

Quick thoughts on the Apple-Publishers public comments and proposed settlement

I've been following this case with some interest, in part because the US filed its case the morning that I was scheduled to teach the Book Publishing Law class in my Entertainment Law course - it was one of those days that you take the slides you've prepared and throw them aside for the last 15 minutes of class - and in part because I was an antitrust litigator in a previous life. But also because, if you're interested in books and publishing or really any part of the entertainment industry, this litigation is huge.

Right before filing, the DOJ made it clear that it had reached a settlement agreement with 3 defendants: Hachette, HarperCollins, and Simon & Schuster. But they filed the lawsuit against them anyway. You might wonder why they would do this: it's to make sure the settlement agreement has the power of a court judgment. This way if the publishers break the settlement the DOJ doesn't have to sue them: they already have a judgment, so they can just go to the judge and get contempt of court proceedings. Much quicker and much cheaper.

Under US law, where the government wants to settle antitrust class actions it needs to solicit comments from the public to make sure that it has considered the public interest before acting. Today it publicized all of the 868 comments it received and response to them.

I've read the response (link below) and skimmed a selection of the comments. Here's my (admittedly not very orderly) thoughts.

If I were Harlequin... potential defenses to the e-books class action

I've spent a couple of posts talking about the reasons why I think Harlequin has a tough burden in the e-books lawsuit. But they're not going to concede defeat. As the last posts I'll do on this for a while I'll give four arguments I could envisage being in their defense.

Note: I'm not saying I agree with these. I'm just saying they are defenses that a company in Harlequin's situation could raise and that would pass the "fall down laughing" test: would you fall down laughing in court if you heard them.

To break this up a bit I'll give two today and two tomorrow.

Why Superman might be a hero in the Harlequin e-books litigation

Superman is faster than a speeding bullet, more powerful than a locomotive, and able to leap tall buildings in a single bound. And for authors in the Harlequin e-books class action, he may also be their biggest hero.

On July 19, three authors filed a request for a class action lawsuit against Harlequin for its e-book publishing deals. For those of you keeping score at home: based on the Complaint, here's how the contracts look to work. (Note: I'm paraphrasing and omitting some not-so-relevant details to keep the flow going.)

Contract between Author and Harlequin Switzerland (HQS):