Does a customer’s click on a button count as express informed consent?

Only if the customer was explicitly told that the click is the act of assent. In the Amazon Prime matter, a court applying contract-formation cases stated that a click can be construed as an unambiguous manifestation of assent only if the user is explicitly advised that clicking will constitute assent to the terms and conditions of an agreement. On that reasoning, the court concluded that a reasonable consumer may not have known that clicking the orange Prime button meant consenting to an auto-renewing subscription.

Can a seller rely on a customer’s acceptance of its general terms of use?

Not when the acceptance is of a general or broad terms of use or similar document that contains descriptions of agreement along with other, unrelated information. The Voyager Digital order’s definition says that this kind of acceptance does not constitute express informed consent.

How close does the disclosure have to be to the consent step?

Close enough that the consumer receives it before the act of assent and near it. The Voyager Digital order defines express informed consent as an affirmative act communicating unambiguous assent made after receiving and in close proximity to a Clear and Conspicuous disclosure of all information material to the provision of consent. The FTC’s complaint against the Willms defendants shows the other side of the rule: it alleged that they placed the non-refundable fee disclosure in various places on ordering pages but never in close proximity to the box where consumers entered their credit or debit card information. That is an allegation, not a finding.

Can the box that enrolls a customer in a trial be pre-checked?

Not under the CFPB’s consent order against TransUnion, which required a check box on the final order page that consumers must affirmatively check to select the Negative Option feature, and which stated that the box cannot be pre-checked.

Can one checkbox or click cover several fees at once?

Not under the FleetCor injunction, which, as the FTC’s appellate brief describes it, says FleetCor may not obtain assent to more than one charge through a single expression of assent. The FTC’s brief defends that provision as reasonably related to FleetCor’s practice of hiding fees in dense, inscrutable “terms and conditions” documents.

Does the standard protect only buyers?

No. The standard has also been written into orders that protect people who work through a platform. Handy Technologies stipulated to an order barring it from imposing any fines, fees, or other charges upon, or taking any monies from, any Pro without having previously obtained the Pro’s express, informed consent to each fine, fee, or other charge. The Amazon Flex Decision and Order is similar: it bars the respondents from changing the extent to which they use a Driver’s tips toward their contribution to the Driver’s earnings without first obtaining express informed consent from the Driver.

Does the requirement apply to sales made by phone as well as online?

It reaches both, under different rules. For telemarketing, the Telemarketing Sales Rule says that in any telemarketing transaction the seller or telemarketer must obtain the express informed consent of the customer or donor to be charged and to be charged using the identified account. For goods or services sold on the Internet through a negative option feature, ROSCA requires the seller to obtain express informed consent before charging a financial account.

How long must a telemarketer keep proof of consent?

Five years under the current text of the Telemarketing Sales Rule, which requires a seller or telemarketer to keep the listed records, including records of express informed consent, for 5 years from the date the record is produced unless specified otherwise. An earlier version of the rule set the retention period at 24 months.

BillingLegal test

Express informed consent

Berkeley Robinson, Managing Attorney at Robinson Law Firm PLLC

Author

Berkeley Robinson, Esq.

Managing Attorney, Robinson Law Firm PLLC

Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.

Definition

“Express informed consent” is used in more than one setting, and its meaning depends on the context. In consumer protection, it means an affirmative act communicating unambiguous assent made after receiving and in close proximity to a Clear and Conspicuous disclosure of all information material to the provision of consent Source: FTC v. Voyager Digital, LLC, et al., Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief. Under the Voyager Digital order, assent obtained through any practice or user interface that has the effect of subverting or impairing consumer autonomy, decision-making, or choice, including using text that is not easily legible or disclosing material terms behind a hyperlink, dropdown icon, tooltip, or other similar interface, is not express informed consent. Source: FTC v. Voyager Digital, LLC, et al., Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief

Key legal rules

Express informed consent is a condition a seller must meet before charging. The main rules below each tie a charge to a prior, affirmative, informed act:

Under the Restore Online Shoppers’ Confidence Act, a seller charging for goods or services sold on the Internet through a negative option feature must obtain the consumer’s express informed consent before charging the consumer’s credit card, debit card, bank account, or other financial account. Source: 15 U.S.C. § 8403
For a post-transaction third party seller, express informed consent for the charge is received by, among other things, requiring the consumer to perform an additional affirmative action, such as clicking on a confirmation button or checking a box that indicates the consumer's consent to be charged the amount disclosed. Source: 15 U.S.C. § 8402
In any telemarketing transaction, the seller or telemarketer must obtain the express informed consent of the customer or donor to be charged for the goods or services or charitable contribution and to be charged using the identified account. Source: 16 C.F.R. § 310.4(b)(1)(ii) (as reproduced in the order)
In a telemarketing transaction involving preacquired account information and a free-to-pay conversion feature, the seller or telemarketer must, at a minimum, obtain the last four digits of the account number to be charged, obtain the customer's express agreement to be charged using that account number, and make and maintain an audio recording of the entire telemarketing transaction. Source: 16 C.F.R. § 310.4(a)(7)(i)
In a telemarketing transaction involving preacquired account information that does not involve a free-to-pay conversion feature, the seller or telemarketer must, at a minimum, identify the account to be charged with sufficient specificity for the customer or donor to understand what account will be charged. Source: Stipulated Order for Permanent Injunction and Monetary Judgment Against Cabb Group, LLC; Christina Peterson; and Robert J. Peterson II, Attachment A (reproducing 16 C.F.R. § 310.4(a)(7))
Under the Triangle Media order, for written offers, including over the Internet or other web-based applications or services, the defendants must obtain consent through a check box, signature, or other substantially similar method, which the consumer must affirmatively select or sign to accept the Negative Option Feature, and no other portion of the offer. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019)
The same Triangle Media order requires the defendants to disclose Clearly and Conspicuously, and immediately adjacent to the check box, signature, or substantially similar method of affirmative consent, only the specified information, with no additional information. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019)
For oral offers under the Triangle Media order, the defendants must obtain affirmative unambiguous express oral confirmation that the consumer consents to being charged (including by providing at least the last four digits of the account number), understands that the transaction includes a Negative Option Feature, and understands the specific affirmative steps needed to prevent or stop further charges. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019)
Under the Epic Games order, express informed consent may not be obtained through a user interface that has the effect of subverting or impairing user autonomy, decision-making, or choice. Source: In re Epic Games, Inc., Decision and Order
A seller or telemarketer must keep, for 5 years from the date the record is produced unless specified otherwise, all verifiable authorizations or records of express informed consent or express agreement required under the Telemarketing Sales Rule, and a complete record of consent includes a copy of the request for consent in the same manner and format in which it was presented to the person providing consent. Source: 16 C.F.R. § 310.5(a)
Under the CFPB’s personal financial data rights rule, a third party seeking to become an authorized third party must, among other things, obtain the consumer’s express informed consent to access covered data on behalf of the consumer by obtaining an authorization disclosure that is signed by the consumer electronically or in writing. Source: 12 C.F.R. § 1033.401
Under the same CFPB rule, the authorization disclosure must be clear, conspicuous, and segregated from other material. Source: 12 C.F.R. § 1033.411(a)
Under the CFPB rule's third party obligations, the third party will provide the consumer with a method to revoke its authorization to access the consumer's covered data that is as easy to access and operate as the initial authorization. Source: 12 C.F.R. § 1033.421(b)(3), (h)(1)
To collect covered data beyond the one-year maximum period under the CFPB rule, the third party will obtain a new authorization from the consumer no later than the anniversary of the most recent authorization. Source: 12 C.F.R. § 1033.421(b)(3), (h)(1)
Under the CFPB rule, records that evidence compliance with the authorization requirements must be retained for a reasonable period of time, not less than three years after the third party obtains the consumer's most recent authorization. Source: 12 C.F.R. § 1033.441(b)

For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.

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Why these rules exist

Commissioners Ramirez and Brill wrote in the Apple matter that consumers cannot avoid or protect themselves from a practice of which they are not made aware, and that a company cannot impose on consumers the responsibility for ferreting out material aspects of payment systems. Source: In re Apple Inc., FTC File No. 1123018, Statement of Chairwoman Edith Ramirez and Commissioner Julie BrillCommissioner Ohlhausen, writing separately in the same matter, put the principle as an obligation: any commercial entity, before billing customers, has an obligation to notify such customers of what they may be charged for and when. Source: In re Apple Inc., No. 122-3108, Statement of Commissioner Maureen K. Ohlhausen (Jan. 15, 2014)The consent requirement answers that problem by tying the charge to an affirmative act the consumer performs after, and next to, the disclosure, so a charge cannot rest on a term the consumer never saw.

Congress recorded, in the findings behind the Restore Online Shoppers’ Confidence Act, that free-to-pay conversion and negative option sales took advantage of consumers’ expectations that they would have an opportunity to accept or reject the membership club offer at the end of the trial period. Source: 15 U.S.C. § 8401A negative option feature is a provision under which the customer's silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer, which is why the consent requirement demands an affirmative, informed act in its place. Source: 16 C.F.R. § 310.2(q)

Enforcement examples

FTC v. Tatto, Inc. (text-message subscriptions billed to mobile phone bills)

Complaint for Permanent Injunction and Other Equitable Relief (dated December 5, 2013)

The FTC’s complaint alleged that the defendants billed consumers for text message-based subscription services even though the consumers did not authorize any purchase of the services. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief ¶ 19 Each subscription, according to the complaint, typically cost $9.99 per month and renewed automatically every month. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief ¶¶ 23, 25, 26 The charges, it added, often appeared on the phone bill in an abbreviated and confusing form. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief ¶¶ 23, 25, 26 The complaint described the standard industry practice as requiring the consumer to take two steps to confirm a purchase, known as “double opt-in” verification, and alleged that the defendants charged consumers without any such process, or any other, in which a consumer provides express informed consent. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief ¶ 21

Outcome. Count II of the complaint pleaded the conduct as an unfair billing practice, alleging that the defendants caused consumers’ mobile phone accounts to be billed without having previously obtained the consumers’ express informed consent. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief, Count II That count is an allegation in the complaint, not a finding. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief, Count II The complaint is dated December 5, 2013. Source: FTC v. Tatto, Inc., et al., Complaint for Permanent Injunction and Other Equitable Relief (dated Dec. 5, 2013)

In re Apple Inc. (in-app purchases by children)

Apple Inc., Analysis of Proposed Consent Order To Aid Public Comment

The Commission issued a complaint and proposed consent order alleging that Apple Inc. unfairly failed to obtain informed consent for charges incurred by children in connection with their use of mobile apps on Apple devices. Source: In re Apple Inc., FTC File No. 1123018, Statement of Chairwoman Edith Ramirez and Commissioner Julie Brill (Jan. 15, 2014) The Commissioners’ statement explaining the action is dated January 15, 2014. Source: In re Apple Inc., FTC File No. 1123018, Statement of Chairwoman Edith Ramirez and Commissioner Julie Brill (Jan. 15, 2014) The Commission’s analysis explained that in many instances Apple had not informed account holders that password entry would approve a charge or start a fifteen-minute window during which children using the app could incur charges without further action by the account holder. Source: Apple Inc., Analysis of Proposed Consent Order To Aid Public Comment

Outcome. The proposed consent order would require Apple to obtain express, informed consent to in-app charges before billing for them, and to allow consumers to revoke consent to prospective in-app charges at any time. Source: Apple Inc., Analysis of Proposed Consent Order To Aid Public Comment It would also require Apple to refund no less than $32.5 million for those in-app charges in the year following entry of the order. Source: Apple Inc., Analysis of Proposed Consent Order To Aid Public Comment

FTC v. Triangle Media Corporation (online trial offers for skincare products, electronic cigarettes, and dietary supplements)

Triangle Media Corporation: [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment as to Defendants Triangle Media Corporation, Jasper Rain Marketing LLC, and Brian Phillips

The FTC’s complaint alleged that the defendants offered trials of these products for just the cost of shipping and handling, typically $4.95 or less, but instead charged consumers who accepted the trial offers as much as $98.71 for a single shipment and enrolled them in a continuity program costing the same amount monthly. Source: FTC v. Triangle Media Corporation, Complaint for Permanent Injunction and Other Equitable Relief The complaint further alleged that the defendants either hid the terms of the offer in barely discernable print far below the graphics where consumers entered payment information or buried them in a separate Terms & Conditions hyperlink. Source: FTC v. Triangle Media Corporation, Complaint for Permanent Injunction and Other Equitable Relief

Outcome. The modified stipulated order was signed on May 29, 2019. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019) It permanently restrained the stipulating defendants from using billing information to obtain payment from a consumer unless they first obtained the consumer’s express informed consent. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019) The order also entered a judgment of $48,110,267.14 against the stipulating defendants as equitable monetary relief. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019) They were ordered to pay $399,795.00 to the Commission. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019) Upon that payment, the remainder of the judgment was suspended. Source: FTC v. Triangle Media Corporation, [Modified] Stipulated Order for Permanent Injunction and Monetary Judgment (entered May 29, 2019)

In re Epic Games, Inc. (Fortnite in-game purchases)

Epic Games: Complaint and Decision and Order

The Commission’s complaint, issued on March 13, 2023, alleged that Epic, which let consumers download Fortnite for free but charged for in-game items, had in many cases used design tricks known as “dark patterns” to charge consumers for those items without first obtaining their express informed consent. Source: In re Epic Games, Inc., Complaint The complaint further alleged that for more than a year after Epic began offering in-app purchases, kids could acquire V-Bucks simply by pressing buttons with no parental or card holder action or consent. Source: In re Epic Games, Inc., Complaint It also alleged that on mobile devices a player who tapped the “PURCHASE” button next to the “PREVIEW STYLES” button had the cost of the item deducted immediately from the player’s V-Bucks balance. Source: In re Epic Games, Inc., Complaint

Outcome. The Decision and Order defined express informed consent as an affirmative act, made after the consumer was presented with options to provide or withhold consent, that communicated informed authorization of a Charge and was made prior to and proximate to the application activity and to a clear and conspicuous disclosure of all material information related to the billing. Source: In re Epic Games, Inc., Decision and Order In the Commission’s analysis of the proposed consent order, Part I prohibited billing consumers for charges without procuring their express, informed consent, and Part III required Epic to pay $245,000,000 in monetary relief. Source: In re Epic Games, Inc., File No. 192 3203, Analysis of Proposed Consent Order to Aid Public Comment

FTC v. Amazon.com, Inc. (Amazon Prime free-trial enrollment)

Order Denying Defendants’ Motions to Dismiss

On one Prime enrollment page the court examined, the orange button said “Get FREE Two-Day Delivery” and, under it in a gray box, the page said “Enjoy Prime FREE for 30 days.” Source: FTC v. Amazon.com, Inc., Order Denying Defendants’ Motions to Dismiss (May 28, 2024) From that page, the court reasoned, a reasonable consumer may not know that by clicking the orange button they were consenting to sign up for an auto-renewing Prime subscription. Source: FTC v. Amazon.com, Inc., Order Denying Defendants’ Motions to Dismiss (May 28, 2024)

Outcome. Viewing the amended complaint in the light most favorable to the FTC, the court could not grant the motions to dismiss on either the clear and conspicuous disclosure issue or the express informed consent issue. Source: FTC v. Amazon.com, Inc., Order Denying Defendants’ Motions to Dismiss (May 28, 2024) The court denied the motions to dismiss. Source: FTC v. Amazon.com, Inc., Order Denying Defendants’ Motions to Dismiss (May 28, 2024)

FTC v. Commerce Planet, Inc. (free online auction starter kit)

Complaint for Permanent Injunction and Other Equitable Relief

The FTC’s complaint alleged that Commerce Planet marketed and sold through the internet a free “Online Auction Starter Kit.” Source: FTC v. Commerce Planet, Inc., Complaint for Permanent Injunction and Other Equitable Relief Under the “Ship my Kit!” button, the page said that by submitting the form the consumer was accepting and agreeing to the Privacy Policy and Terms of Membership of the site. Source: FTC v. Commerce Planet, Inc., Complaint for Permanent Injunction and Other Equitable Relief Consumers, the complaint said, were not required to click on the Terms of Membership link to continue, nor to indicate that they had read the terms. Source: FTC v. Commerce Planet, Inc., Complaint for Permanent Injunction and Other Equitable Relief

Outcome. The complaint alleged, as an unfair practice, that Commerce Planet assessed monthly charges against consumers’ credit cards without obtaining the express, informed consent of the consumers. Source: FTC v. Commerce Planet, Inc., Complaint for Permanent Injunction and Other Equitable Relief

FTC v. Credit Bureau Center, LLC (free credit report with credit monitoring trial)

Memorandum Opinion and Order

As the FTC’s Seventh Circuit brief describes the scheme, the defendants ran fake apartment rental ads on Craigslist to lure consumers to sign up for an allegedly free credit report, and without telling consumers they enrolled them in an ongoing credit monitoring service that charged $30 every month. Source: Brief of the Federal Trade Commission, FTC v. Credit Bureau Center, LLC, No. 21-2945 (7th Cir.) The district court described the negative option feature this way: consumers who requested their free credit report had seven days to opt out of the credit monitoring program before they were enrolled. Source: FTC v. Credit Bureau Center, LLC, Memorandum Opinion and Order It concluded that summary judgment was warranted because the website was virtually devoid of any mention of the service aside from the statement that the customer was to be billed for it. Source: FTC v. Credit Bureau Center, LLC, Memorandum Opinion and Order

Outcome. The court held that the FTC was entitled to summary judgment on its ROSCA claim. Source: FTC v. Credit Bureau Center, LLC, Memorandum Opinion and Order As the FTC’s brief describes the appeal, the Seventh Circuit affirmed the grant of summary judgment and the injunction but vacated the monetary remedy, which had rested on Section 13(b) of the FTC Act. Source: Brief of the Federal Trade Commission, FTC v. Credit Bureau Center, LLC, No. 21-2945 (7th Cir.) The brief reports that in doing so the appeals court held that ROSCA requires disclosure of “all material terms” of a transaction before the consumer pays, and that the defendants “did not tell consumers that they were enrolling in a credit-monitoring service.” Source: Brief of the Federal Trade Commission, FTC v. Credit Bureau Center, LLC, No. 21-2945 (7th Cir.) The district court then entered a new judgment awarding the same consumer redress, this time under ROSCA and Section 19. Source: Brief of the Federal Trade Commission, FTC v. Credit Bureau Center, LLC, No. 21-2945 (7th Cir.) The final order entered a judgment of $5,260,671.36 against the defendants, jointly and severally, as equitable monetary relief. Source: FTC v. Credit Bureau Center, LLC, Final Judgment and Order for Permanent Injunction and Other Equitable Relief

FTC v. FleetCor (fuel card fees)

FTC Brief (Jan. 29, 2024)

The FTC’s brief describes FleetCor as having charged several fees that were not adequately disclosed and to which customers did not consent, including three transaction fees and four add-on program fees, with customers automatically enrolled in the add-on programs and charged unless a customer caught on and affirmatively opted out. Source: FTC Brief (FTC v. FleetCor Technologies, Inc.) Using FleetCor’s transaction data, the FTC calculated that customers were charged some $320 million in unauthorized fees between 2014 and 2019. Source: FTC Brief (FTC v. FleetCor Technologies, Inc.)

Outcome. The injunction in that case barred FleetCor from billing customers for any charge without express informed consent, defined by an affirmative act of unambiguous assent after clear and conspicuous disclosure of the product, service, or fee, the specific amount, whether the charge recurs, and the circumstances in which it will be incurred. Source: FTC Brief (FleetCor) (Jan. 29, 2024), Argument III: The Injunction’s Express Informed Consent Provisions The injunction also provided that material terms may not be disclosed behind a hyperlink or tooltip. Source: FTC Brief (FleetCor) (Jan. 29, 2024), Argument III: The Injunction’s Express Informed Consent Provisions

FTC v. Universal City Nissan, Inc. (dealership add-on products)

FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants

The FTC’s complaint charged that the defendants participated in deceptive, unfair, and unlawful acts or practices in the advertising, sales, leasing, and financing of new and used motor vehicles. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants

Outcome. The stipulated order barred the settling defendants from charging a consumer for any add-on product or service without having obtained the consumer’s express informed consent to the charge. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants Consent under that order meant an affirmative act communicating acceptance of the charges in response to the dealer’s request that the consumer indicate assent, and as part of that request the dealer had to clearly and conspicuously disclose, orally and in writing, specified information. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants The required disclosures included the monthly payment amount in financing or the monthly lease payment with and without the product or service. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants They also included whether the product or service is optional. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants The order entered judgment of $3,625,000 against the settling defendants, jointly and severally, as equitable monetary relief. Source: FTC v. Universal City Nissan, Inc., No. 2:16-cv-07329-CAS (AJWx), Stipulated Order for Permanent Injunction and Monetary Judgment as to Settling Defendants

FTC v. Hopper (USA) Inc. (travel booking app add-on fees)

Complaint for Permanent Injunction, Monetary Judgment, and Other Relief

The complaint alleged that a consumer booking a flight in the Hopper app who swiped to book without scrolling down would unknowingly be charged more than the displayed total, because the consumer would also be charged two hidden, preselected fees. Source: FTC v. Hopper (USA) Inc., Complaint for Permanent Injunction, Monetary Judgment, and Other Relief Only a consumer who scrolled down further would see that the consumer was also agreeing to pay $3.00 for an “optional” tip preselected by Hopper, and only one who scrolled further still would see a preselected $25.00 charge for VIP Support. Source: FTC v. Hopper (USA) Inc., Complaint for Permanent Injunction, Monetary Judgment, and Other Relief The complaint also alleged that Hopper’s own 2018 testing showed that 75% of consumers paid a hidden, preselected Tip fee, while only 15% would affirmatively choose to pay a disclosed and unselected one. Source: FTC v. Hopper (USA) Inc., Complaint for Permanent Injunction, Monetary Judgment, and Other Relief

Outcome. Count I of the complaint alleged that the defendants charged consumers hidden, preselected fees, Tip fees and VIP Support fees, without obtaining the consumers’ express informed consent. Source: FTC v. Hopper (USA) Inc., Complaint for Permanent Injunction, Monetary Judgment, and Other Relief, Count I The complaint pled that conduct as an unfair practice in violation of Section 5 of the FTC Act. Source: FTC v. Hopper (USA) Inc., Complaint for Permanent Injunction, Monetary Judgment, and Other Relief, Count I

Exposure

A violation of the Restore Online Shoppers’ Confidence Act is treated as a violation of a rule under section 18 of the Federal Trade Commission Act regarding unfair or deceptive acts or practices. Source: 15 U.S.C. §§ 8404, 8405 Anyone who violates the statute is therefore subject to the penalties, and entitled to the privileges and immunities, provided in the FTC Act. Source: 15 U.S.C. §§ 8404, 8405 A State attorney general may also bring an action in federal district court to obtain appropriate injunctive relief. Source: 15 U.S.C. §§ 8404, 8405

Civil penalties turn on knowledge. In its complaint against Cerebral, the United States alleged that a court can impose a civil penalty of not more than $51,744 for each violation of ROSCA where the defendant acted with actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that the act is unfair or deceptive and prohibited by the rule. Source: United States v. Cerebral, First Amended Complaint for Permanent Injunction, Monetary Relief, Civil Penalties, and Other Relief Knowledge is easier to show than a defendant might hope: the court in the Amazon Prime case added that, even if a defendant claims it lacked actual knowledge of the law, the FTC can seek civil penalties by alleging constructive knowledge, meaning that a reasonable person under the circumstances would have known of the existence of the provision. Source: FTC v. Amazon.com, Inc., Order Denying Defendants’ Motions to Dismiss (May 28, 2024)

Money judgments in consent cases can be large. In the Credit Bureau Center case, the court ordered equitable relief in the amount of consumer losses. Source: FTC v. Credit Bureau Center, LLC, Memorandum Opinion and Order In the FTC’s Seventh Circuit brief in that matter, the Commission argued that remedies under Section 19(b) are not limited to unjust gains but can restore the victim to the status quo, in other words, full refunds. Source: Brief of the Federal Trade Commission, FTC v. Credit Bureau Center, LLC, No. 21-2945 (7th Cir.), Argument Another stipulated order requires the defendants, in obtaining express informed consent for any good or service with a Negative Option Feature, to follow specified steps. Source: FTC v. Vonage Holdings Corp., FTC Matter No. 2023165, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief That order entered judgment of $100 million against the defendants, jointly and severally, as monetary relief. Source: FTC v. Vonage Holdings Corp., FTC Matter No. 2023165, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief A further stipulated order contains its own “Obtaining express informed consent” provision and entered judgment of $60 million against the defendant as monetary relief. Source: FTC v. Maplebear Inc. d/b/a Instacart, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Jan. 13, 2026) That order states that it will remain in effect for 10 years after its entry. Source: FTC v. Maplebear Inc. d/b/a Instacart, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (Jan. 13, 2026)

Violating an existing order compounds the exposure. In a January 2014 contempt order, a court found that defendants had violated a permanent injunction by, among other things, failing to get consumers’ express, informed consent before debiting them. Source: Order for Contempt (FTC; Bryon W. Wolf, Roy A. Eliasson, and Membership Services, LLC) (Jan. 13, 2014) The court imposed a sanction in the form of a money judgment in the amount of the net revenues of $14,750,000. Source: Order for Contempt (FTC; Bryon W. Wolf, Roy A. Eliasson, and Membership Services, LLC) (Jan. 13, 2014) In the CFPB’s 2023 Enova order, the Bureau found that Enova had violated a 2019 order and the Consumer Financial Protection Act, including by debiting or attempting to debit consumers’ accounts without their authorization, and the order required redress to all consumers whose accounts Enova debited without their express informed consent and a $15 million civil money penalty. Source: CFPB, Enova International, Inc. (enforcement action summary)

FAQs

1.Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief.. FTC v. Voyager Digital, LLC, et al., Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other ReliefSee also Stipulated Order for Permanent Injunction and Monetary Judgment. FTC v. Prog Leasing, LLC, Stipulated Order for Permanent Injunction and Monetary JudgmentSee also 201506_cfpb-cfpb-v-verizon-stipulated-final-judgment-and-order. CFPB v. Verizon, Stipulated Final Judgment and Order
2.Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief.. FTC v. Voyager Digital, LLC, et al., Entered Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief
3.15 U.S.C. § 8403. 15 U.S.C. § 8403