HHS website usability guidelines used by FTC to allege misleading marketing practices

Direct TV FTC Law suit

FTC wants DirecTV pay $3.95B fine for deceptive ad suit

Trial began on last week for a deceptive advertising suit against DirecTV in which the FTC’s opening statements asked the Court to award $3.95 in damages to consumers.  FTC attorney Jacob A. Snow alleged that 33 million consumers were deceived by the company from 2007-2015.  During that time period, DirecTV ran a promotion advertising a twelve month fixed price plan when committing to a two year contract.  The FTC took issue with terms in the contract including a $480 early cancellation fee, rate increase details, and free three-month trials of premium channels.  In this case the FTC has continued its practice of using unqualified “experts” to allege deceptive practices without any data that would actually be relevant.

 

U.S. Health & Human Services Department’s (HHS) usability guidelines

Theo Mandel, a website design consultant with a doctorate degree in cognitive and qualitative psychology, took the stand Wednesday over DirecTV’s objection.  Mandel testified that after reviewing the company’s live site, screen captures of old versions of the site and other court documents, he found that DirecTV’s website fell short of the U.S. Health & Human Services’ usability guidelines.  .

Mandel testified that after his review he found that between 2008 and 2016 DirecTV had consistently “violated” HHS usability guidelines, including: information overload, small font size, and hard-to-read colors.  Based on what he claimed to be sound qualitative psychology, Mandel claimed that:

A company that would want to present information that users would want to find and read would not design the website as [DirecTV] did …

 Defending against misleading website allegations

In response to this so called “expert opinion”, DirecTV’s legal head Jeff Tillotson showed that the website made the price increases and other relevant info quite clear and that the terms come up multiple times throughout the ordering process.  Mandel’s testimony was undermined by his own admissions during cross-examination that:

  1. Mandel’s website and CV had no mention of the relevant areas of expertise that Mandel claimed to have.
  2. Noncompliance with an HHS guidelines alone does not mean that a website is misleading.
  3. Noncompliance with an HHS guideline cannot form the sole basis for a deceptive ad suit.
  4. Mandel’s opinions had no basis in actual facts or data from actual users, but was based only on his “expertise”.

U.S. District Judge Haywood S. Gilliam Jr. overruled DirecTV’s objection that Mandel was expressing opinions and not expert testimony.  The Court noted that the company’s attorneys had not filed a Daubert motion to exclude Mandel.  That motion could have argued to disqualify Mandel for a lack of expertise or use of questionable methods to obtain information.

If you need expert legal assistance with an FTC issue, contact Christensen & Jensen to do everything possible to reduce the FTC’s impact on your business.

Source: AT&T’s (T) DirecTV Receives $3.95B Fine for Deceptive Ad Suit

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