On January 7, the Federal Trade Commission (“FTC”) reached a proposed settlement with Tapjoy, a California-based company that operates an advertising platform within mobile gaming applications.  According to its complaint, the FTC alleges that Tapjoy deceived consumers by failing to provide in-game rewards it promised for completing actions associated with third-party advertisements.

Tapjoy’s platform offers virtual currency to consumers for completing various activities, which include purchasing in-game items, watching videos, and completing surveys.  Consumers can then spend the currency on in-app content from publishers.  Consumers frequently incur charges or divulge personal information, including contact information and sensitive health information, to the third-party advertisers through this system.

The FTC’s complaint alleges that Tapjoy deceived consumers about the rewards they could earn for completing the advertising offers.  The company received hundreds of thousands of complaints from consumers who said they never obtained their promised rewards despite having completed the required actions.  Tapjoy was allegedly aware as far back as July 2016 that “too many users [were] simply not getting rewarded.”  Moreover, many users allegedly discovered that the information they divulged was sold by Tapjoy’s advertisers to third-party marketers.  This deceptive conduct allegedly violates Section 5 of the FTC Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.”

The FTC further alleges that the company did not take adequate steps to address the problems or stop making deceptive claims.  Instead, Tapjoy adopted policies to actively discourage customer service inquiries, including prohibiting consumers from submitting a complaint within 24 hours of completing an offer.  Tapjoy also failed to respond to many customers who were able to submit a complaint.

The proposed consent order prohibits Tapjoy from misrepresenting the rewards it offers and requires the company clearly and conspicuously display the terms under which consumers can receive them.  Additionally, Tapjoy must specify to consumers that the third-party advertisers are the ones that determine if rewards should be issued.  And it must monitor its advertisers to ensure they actually deliver the promised rewards.

Tapjoy is also required to provide an easy-to-use method by which consumers can submit support requests and promptly investigate any complaints it receives.  If Tapjoy learns through an investigation that an advertiser has committed fraud or that there is a pattern of failures with the delivery of rewards, Tapjoy must cease doing business with that advertiser.

Finally, Tapjoy is subject to compliance and recordkeeping obligations for a period of 10 years.

The FTC voted 5-0 to issue the proposed administrative complaint and accept the consent agreement.  The agreement is subject to public comment for 30 days following publication in the Federal Register, after which the Commission will decide whether to make the proposed consent order final.

Commissioners Rohit Chopra and Rebecca Kelly Slaughter issued a joint statement discussing the current scrutiny of the mobile gaming industry and the potential downstream harms to consumers.  Notably, they emphasized the importance of holding “middlemen” like Tapjoy liable for practices that can harm consumers and developers.

More information on Tapjoy’s settlement with the FTC can be found here.

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Photo of Laura Kim Laura Kim

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her…

Laura Kim has a proven track record of successfully resolving clients’ most important consumer protection matters before the FTC, State AGs, and the NAD. She is well-known for her insider knowledge of the FTC as well as her practical approach to accomplishing her clients’ objectives.

As chair of Covington’s Advertising & Consumer Protection Investigations practice group, Laura represents corporate and individual clients in investigations before the FTC and State Attorneys General. She also provides pragmatic compliance advice on a wide range of consumer protection issues, including substantiating claims involving generative artificial intelligence, environmental benefits, and “Made in USA.” She counsels brands on emerging issues involving influencers, consumer reviews, AI-generated content, and subscription autorenewals. Laura regularly represents both challengers and advertisers before the NAD, achieving favorable outcomes in matters involving artificial intelligence, influencers, and claim substantiation.

During her twelve-year tenure at the FTC, Laura served as Assistant Director in two divisions of the Bureau of Consumer Protection, Attorney Advisor to Chairman William E. Kovacic, and Chief of Staff to Bureau Director Jessica Rich. She oversaw major rulemakings—including the Green Guides and the Telemarketing Sales Rule—and supervised dozens of investigations and enforcement actions. As Assistant Director in the Division of Enforcement, Laura also supervised compliance monitoring and enforcement proceedings for companies under federal court or Commission order.

Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager is a recognized leader in representing companies before federal and state regulators, and is renowned for advising on minor protection, AI, and state comprehensive privacy laws.

Lindsey chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their…

Lindsey Tonsager is a recognized leader in representing companies before federal and state regulators, and is renowned for advising on minor protection, AI, and state comprehensive privacy laws.

Lindsey chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and State Attorneys General on proposed changes to data protection laws, and regularly represents clients in responding to investigations and enforcement actions involving their privacy and information security practices.

Lindsey’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of artificial intelligence; data processing for robotics, autonomous vehicles, and other connected devices; biometrics; online advertising; the collection of personal information from children, teens, and students online; e-mail marketing; disclosures of video viewing information; and new technologies.

Lindsey also assesses privacy and data security risks in complex corporate transactions where personal data is a critical asset or data processing risks are otherwise material. In light of a dynamic regulatory environment where new state, federal, and international data protection laws are always on the horizon and enforcement priorities are shifting, she focuses on designing risk-based global privacy programs for clients that can keep pace with evolving legal requirements and efficiently leverage the clients’ existing privacy policies and practices. She conducts data protection assessments to benchmark against legal requirements and industry trends and proposes practical risk mitigation measures.

Photo of Andrew Longhi Andrew Longhi

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state…

Andrew Longhi advises national and multinational companies across industries on a wide range of regulatory, compliance, and enforcement matters involving data privacy, telecommunications, and emerging technologies.

Andrew’s practice focuses on advising clients on how to navigate the rapidly evolving legal landscape of state, federal, and international data protection laws. He proactively counsels clients on the substantive requirements introduced by new laws and shifting enforcement priorities. In particular, Andrew routinely supports clients in their efforts to launch new products and services that implicate the laws governing the use of data, connected devices, biometrics, and telephone and email marketing.

Andrew assesses privacy and cybersecurity risk as a part of diligence in complex corporate transactions where personal data is a key asset or data processing issues are otherwise material. He also provides guidance on generative AI issues, including privacy, Section 230, age-gating, product liability, and litigation risk, and has drafted standards and guidelines for large-language machine-learning models to follow. Andrew focuses on providing risk-based guidance that can keep pace with evolving legal frameworks.