Just in and we haven't had time to fully digest yet, but earlier today the 8th Circuit ruled in favor of Petitioners challenging the FTC's amended Negative Option Rule finding the Commission failed to follow procedural requirements under § 22 of the FTC Act. The final paragraph of the decision reads:
"While we certainly do not endorse the use of unfair and deceptive practices in negative option marketing, the procedural deficiencies of the Commission's rulemaking process are fatal here. The Rule does contain a severability provision which keeps the remaining provisions in effect if any provisions are stayed or determined to be invalid. 16 C.F.R. § 425.9. But vacatur of the entire Rule is appropriate in this case because of the prejudice suffered by Petitioners as a result of the Commission's procedural error. Given the breadth of the Rule's coverage, the party-specific vacatur requested by the Commission is not feasible. Accordingly, we grant the petitions for review and vacate the Rule."
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