A quick update here on the status of the 4 petitions challenging the FTC's amended Final Negative Option Rule. Is this scintillating development not your cup-o-tea? Then feel free to instead read about the Internet's bizarre and inexplainable obsession with AJ, Big Justice and The Rizzler. Warning: Reading about them may will result in the loss of brain cells.
According to a November 15, 2024 Consolidation Order issued by the Judicial Panel on Multidistrict Litigation (wow...does that sound geeky!), the 4 nearly-identical petitions filed in the 5th, 6th, 8th and 11th circuits have been consolidated to the 8th Circuit, a decision made, as noted in the Order, by "random" selection. Random? Is anything ever truly random? Conspiracy theorists: Get on it!
This decision might bode well for industry given the 8th circuit's right leaning make-up. The Circuit, which is based in St. Louis, MO and covers federal courts in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota, is considered, according to various sources, to be the most conservative circuit, with a higher percentage of Republican judges (91%) than any other circuit. It is composed of 12 judges (11 active and one senior), four of whom were appointed by the current president-elect during his prior tenure.
Depending on which judges are assigned to this case, given the incoming administration's disdain for view of federal agencies and their rules, there is a strong possibility the FTC's Final Rule will not receive a warm and fuzzy welcome in St. Louis.
In the meantime, we continue to advise companies to conduct a top to bottom review of their subscription enrollment and cancel flows (as well as record keeping practices) to ensure compliance with the Final Rule, especially with an eye toward the prohibition on material misrepresentations, which becomes effective January 15.
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