Category Archives: Marketing and Advertising Law

FTC Cryptocurrency: Marketing Rules Apply

FTC cryptocurrency lawyerThe FTC is going after four people for allegedly promoting “deceptive money-making schemes involving cryptocurrencies.” According to commissioners, the accused promised dramatic gains and delivered squat.

FTC Cryptocurrency: Token Investment Ponzi Scheme?

The FTC accused three defendants of creating a crypto pyramid scheme that promised “big rewards for a small payment of bitcoin or Litecoin.” Specifically, the business’ marketing materials tempted potential investors to turn $100 into $80,000 a month. To join, participants had to make a payment to extant investors. As such, the scheme’s success relied on a constant stream of new investor recruits.

According to the FTC, the scheme leaped out of Ponzi’s playbook, in large part because “the majority of participants would fail to recoup their initial investments.”

When asked about the Crypto Ponzi case, the acting director of the FTC’s Bureau of Consumer Protection Tom Pahl explained :

“This case shows that scammers always find new ways to market old schemes, which is why the FTC will remain vigilant regardless of the platform – or currency used. The schemes the defendants promoted were designed to enrich those at the top at the expense of everyone else.”

FTC Cryptocurrency: Promotional Language Matters

In these recent FTC cryptocurrency actions, commissioners also objected to promotional assertions about doubling your money in 50 days. Remember: Don’t publish guarantees that your business can’t fulfill — it’s against FTC regulations (link). When it comes to marketing materials, faking it till you make it is not OK. All advertising claims must be factually supported with evidence.

While these cases wend their way through the courts, the FTC froze the defendants’ assets and issued temporary restraining orders.

Connect With An FTC Cryptocurrency Lawyer

The cryptocurrency and blockchain markets are relatively young, mostly unregulated, and growing like a Chia Pet on steroids.  If you’re a startup or investor in the space, it’s wise to consult with a cryptocurrency attorney before making moves or launching a project. Though specific industry regulations are currently in limbo, some standing financial, promotional, and business regulations absolutely do apply.

We have been consulting — and investing — in the virtual currency space since the early days of Bitcoin. Moreover, as both attorneys and CPAs, our firm has a unique, holistic, and more nuanced understanding of the crypto ecosystem.

Give us a ring. Let’s talk about what our experienced cryptocurrency legal team can do for you.

G Fuel Lawsuit: Popular Esports Energy Drink At Center Of Controversy

G Fuel LawsuitThe Environmental Research Center (ERC) smacked Gamma Enterprises LLC (“Gamma”), the “Gatorade of Esports” and makers of G Fuel, with a lawsuit over elevated lead levels and non-compliance with California’s health reporting requirements. Will the G Fuel lawsuit affect athlete sponsorships?

G Fuel: An Esports Energy Drink

Gamma Labs makes G Fuel, an energy drink “marketed as a secret sauce to enhance focus and endurance for virtual battles.” To use an analogy: G Fuel is to esports as Gatorade is to football.

Proposition  65: Heath Reporting Requirements

An excerpt from a Californian government page:

In 1986, California voters approved an initiative to address their growing concerns about exposure to toxic chemicals. That initiative became the Safe Drinking Water and Toxic Enforcement Act of 1986, better known by its original name of Proposition 65. Proposition 65 requires the State to publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. This list, which must be updated at least once a year, has grown to include approximately 800 chemicals since it was first published in 1987.

G Fuel Lawsuit: Too Much Lead?

According to authorities, G Fuel drinks contained excessive amounts of lead. Plus, the product label didn’t include proper ingredient warnings.

When it comes to marketing food stuffs, brands must follow regulations outlined by both the FTC and FDA. The financial penalties could be huge, weighing in at $2,500 a day, per violation. Since the allegations date back to 2014, authorities could force Gamma to hand over a whole lot of ducats.

Energy Drink Legal Compliance: A Brief History

This is not G Fuel’s first media hiccup. Back in 2016, a young boy was hospitalized after knocking back too much of the caffeinated beverage on his bus ride home from elementary school.

It’s only fair to note that G Fuel isn’t the only energy drink to face ingredient-related lawsuits. 5-Hour Energy and Monster Energy have both found themselves in the legal ring over marketing issues. In 2016, Morgan & Morgan sued Monster Energy five times over health deterioration allegations. However, all the cases were eventually dismissed. In 2017, the FTC dinged 5-Hour Energy for $4.3 million over deceptive advertising practices.

Will the G Fuel Lawsuit Affect Sponsorship Deals?

Will esports athletes sponsored by Gamma feel any ramifications because of this lawsuit? Most likely, no. In fact, to combat the negative press, Gamma may even amp up their advertising efforts. However, if authorities come out on top in this legal battle, Gamma may have to fork over a hefty fine, which could have a negative budget impact.

Esports and Marketing Lawyers

Gordon Law Group works with esports athletes and vendors on everything from contract negotiations to sponsorship agreements to product and marketing compliance. Let’s talk. Get in touch today to begin the conversation.

FTC Charges Online Marketers and Merchant Account Entities

negative option marketingThe FTC fired warning shots that could affect affiliate marketers, publishers, and merchant account signers. The FTC filed suit against RevGuard, LLC and 60 other defendants. What’s the charge? Negative option marketing (FTC Act, 15 U.S.C. § 45(a), and ROSCA, 15 U.S.C. § 1843).

Negative Option Marketing At Center of RevGuard FTC Lawsuit

The lawsuit asserts that RevGuard, et al. deceptively billed people who bought a tooth-whitening product.[1] A negative option plan generally refers to transactions in which a seller interprets the customer’s failure to take an affirmative action — typically cancelling an offer — as consent to be charged for goods or services on a recurring basis.

In the FTC v. RevGuard case, the FTC alleges that the defendants’ checkout pages were structured so that once a customer made a purchase, they were instantly redirected to another page that displayed a large yellow “complete checkout” button. The commission further alleges that when customers clicked to “complete checkout” they were enrolled in a second negative option plan for additional products. According to the FTC, the offending checkout page looked like an order confirmation.

Who Does This Decision Affect?

Though the FTC commonly cracks down on negative option schemes, this case has significant implications for merchant transaction companies. Specifically, the FTC’s co-defendants list included: (1) service providers that perform the fraud’s “back office” functions; (2) intermediate holding companies that obscure financial transactions; and (3) merchant entities that obtain merchant accounts, web domains, and credit-card settlement bank accounts.[2] In essence, this case raises concerns for entities that did nothing more than open merchant accounts.

Furthermore, and far more troubling, is that the asset freeze applied to the aforementioned three groups of co-defendants, not just the affiliate marketers who actually profited from the scheme.[3] In particular, the Ex Parte Temporary Restraining Order issued by the Court declared that the asset freeze applied to “. . . [d]efendants and their officers, agents, employees, and attorneys, and all other persons in active concert or participation with any of them, who receive actual notice of this Order, whether acting directly or indirectly . . . .”[4]

This case should serve as a lesson for entities involved in similar arrangements. While the FTC v. RevGuard, LLC case is just getting started (it has not even been posted to the FTC website as of the date of this post), it promises to shake up the industry and force affiliate marketers to get creative with structuring future payment processing arrangements.


[1] FTC v. RevGuard, LLC et. al. Complaint at 21.

[2] FTC v. RevGuard, LLC et al. Emergency Motion for a Temporary Restraining Order at 12.

[3] FTC v. RevGuard, LLC et al. Ex Parte Temporary Restraining Order Granting Asset Freeze, Appointment of a Temporary Receiver, and other Equitable Relied, and Order to Show Cause Why a Preliminary Injunction Should Not Issue § 5.

[4] Id. at § V(A).

FTC Compliance: Internet Advertising Campaign Regulations

FTC defense lawyer for Internet advertising campaignA well-executed Internet advertising campaign can make a business, but it must comply with Federal Trade Commission marketing and advertising regulations.

When the FTC catches companies shirking promotional rules, it can dole out devastating fines. Want to keep the agency off your back? Hire an FTC attorney for a marketing compliance review.

Rules For Internet Advertising Campaigns

The Federal Trade Commission, which derives its power from the Federal Trade Commission Act, promulgates and enforces Internet advertising regulations. Primarily, the commission bars businesses from using deceptive and misleading advertising strategies.

Situations vary and the devil is typically in the details, but the top three Internet advertising campaign don’ts are as follows.

  1. Don’t make false claims.
  2. Paid promoters, influencers, and affiliate marketers who promote brands in exchange for money or products must conspicuously disclose this material relationship. If they don’t, the brand can be held responsible.
  3. Don’t make scientific claims without substantive proof to back them up.

Factual Omissions Can Qualify As “False Claims”

Failing to provide pertinent information in a marketing campaign also falls under “noncompliance.”  If companies fail to disclose information that could impact consumers’ product understanding, the FTC can hold them liable for deceptive advertising.

Potential Enforcement Actions

The FTC uses a number of enforcement actions depending on the severity of the matter. It may issue cease-and-desist orders, fencing-in provisions, corrective advertising orders, or numerous other informational remedies, including bans and fines.

Connect With An Internet Marketing Attorney

Is the FTC investigating your marketing campaign? Want to avoid future run-ins with the agency? Either way, we can help. Get in touch today to begin the conversation. The consultation is on us.

FTC Acknowledges Crusade Against Health-Related Deceptive Advertising

Health-Related Deceptive AdvertisingThe FTC initiated a “dietary sweep” to combat health-related deceptive advertising in the weight loss, hair growth, opiate addiction relief, and cognitive supplement industries.

The FTC Made A Chart of 14 Health-Related Deceptive Claims

As part of its crusade, the Commission released a chart detailing fourteen health-related deceptive advertising lawsuits. Featured products included the Green Coffee Bean, W8-B-Gone, CITRI-SLIM 4, Elimidrol, and Procera AVH. And although the initiative targeted a variety of goods— ranging from hair growth gels to memory enhancement pills — the primary focus seems to be dietary weight-loss supplements.

FTC Warning Letter: Don’t Use Health-Related Deceptive Claims

Just yesterday, the FTC sent out a warning letter to twenty companies in the weight-loss supplement space. It emphasized the importance of using realistic product descriptions and citing scientific studies used in efficacy claims. Specifically, such studies must be randomized, double-blind, placebo-controlled, and conducted by qualified researchers. (See, e.g., FTC v. Nat’l Urological Group, Inc., 645 F. Supp. 2d 1167, 1190, 1202 (N.D. Ga. 2008), aff’d, 356 Fed. Appx. 358 (11th Cir. 2009); FTC v. SlimAmerica, Inc., 77 F. Supp. 2d 1263, 1274 (S.D. Fla. 1999); Schering Corp., 118 F.T.C. 1030, 1080, 1115-16 (1991).) The letter further cautioned that testimonials are insufficient evidence to support weight-loss claims and instructs marketers on how to properly implement non-deceptive reviews.

National Prevention Council & FTC Partnership

The FTC’s heightened interest in health-related products may stem from the Commission’s partnership with the National Prevention Council. A federal task force, the NPC provides coordination and leadership regarding prevention, wellness, and health promotion practices.

Affiliate Marketers: Invest In A Marketing and Advertising Audit

This latest FTC health marketing crackdown should serve as a wake up call to affiliate marketers. If you’ve received one of the above-mentioned warning letters or are worried that your marketing compliance measures may be out-of-date, now is the time to invest in a marketing and advertising legal audit.

Contact A Marketing and Advertising Lawyer

Gordon Law Group prides itself on staying current with the evolving regulatory landscape of online and affiliate marketing law. We’ll keep you one step ahead of enforcement measures.

FTC To Marketers: Disclose Material Relationships

FTC review disclosures rulesReview disclosures are important, and the FTC is cracking down on influencers and promoters who don’t use them.

FTC Sued Company Over Lack Of Review Disclosures

On September 2, 2015, the FTC filed a complaint against California-based online advertiser Machinima, Inc. (“Machinima”). The commission alleged that Machinima engaged in deceptive advertising by paying “influencers” to post YouTube videos endorsing Microsoft’s Xbox One system and launch titles (Forza 5, Dead Rising 3, and Ryse: Son of Rome). The complaint also charged Machinima with overstepping its agreement with Microsoft, which described Machinima’s duties as leveraging “influencers” that could be “incentivize[d] . . . to create content” on YouTube. FTC v. Machinima, Inc., Complaint at 2.

The bulk of Machinima’s trouble arose from language in its YouTube promoter contracts. Specifically, a provision claimed ownership to all video intellectual property. It also required promoters “to keep confidential at all times in perpetuity all matters relating to” the agreement with Machinima. Id. at 3.

Furthermore, the FTC objected to Machinima’s insistence that video promoters follor talking points that explicitly encouraged positive feedback about Microsoft products. Id. at 2.

Interestingly, Microsoft didn’t catch much flak over the incident. The FTC quickly closed investigations into it and Starcom (another Machinima payor). Though both companies failed to ensure proper disclosure procedures, commissioners concluded that the incident occurred in spite of, and not in the absence of, policies designed to prevent such lapses. Moreover, when they learned Machinima was paying influencers without disclosing, they quickly took action to remedy the situation.

What Affiliate Marketers Can Learn from the Settlement Terms

Machinima’s settlement terms included three directives from which affiliate marketers can learn.

Taken together, these mandates would pose a heavy administrative burden on brands and affiliate networks. But they can be avoided by working with an online marketing and advertising lawyer.

Connect With An Advertising and Marketing Attorney

First, our marketing and advertising legal team will examine your business. Once we’ve gathered all the facts, we’ll craft contracts and compensation processes that jive with current promotional standards.

FTC v. POM Wonderful: Lessons for Affiliate Marketers

FTC defense lawyer: POM Wonderful casePOM Wonderful, LLC, et. al. v. Federal Trade Commission (“The POM Case”) is a seminal affiliate marketing lawsuit that:

  1. Provides helpful insight into the legalities related to scientific marketing claims.
  2. Establishes precedence that strengthens the defensive position of affiliate marketers facing private consumer class action litigation under the Illinois Consumer Fraud and Deceptive Business Practices Act (“CFA”).
  3. Provides a legal marketing framework for affiliate marketers. Although The POM Case involves health and dietary advertising concerns, the legal analysis also applies to affiliate marketers in other industries, since it focuses on general marketing legalities  (e.g. efficacy claims, establishment claims, etc.).

#1: Case Summary – POM Wonderful, LLC, et. al. v. Federal Trade Commission

FTC Accuses POM of Making False Statements

The POM Case began in 2010 when the FTC filed an administrative complaint alleging that POM Wonderful, LLC (“POM”) and related executives had made false, misleading, and unsubstantiated representation in violation of the FTC Act.

In May 2012, a judge found that nineteen of POM’s promotional materials violated substantiation rules by improperly implying that products treated, prevented, or reduced the risk of heart disease, prostate cancer, and erectile dysfunction.

The Court held that POM parties were liable under the FTC Act and ordered the company to cease and desist from making further claims about the health benefits of any food, drug, or dietary supplement — unless the claims were non-misleading and supported by competent and reliable scientific evidence.

Ruling Set New Bar For “Disease” Marketing Claims

In Part I of the Final Order, the Commission imposed heightened requirements for claims about the treatment or prevention of “any disease” (including, but not limited to, heart disease, prostate cancer, and erectile dysfunction). The order mandated that such disease-related claims, like the broader category of health claims covered by Part III, must be “non-misleading” and supported by “competent and reliable scientific evidence.”

However, controversy arose over how the Commission defined “competent and reliable scientific evidence.”

“Competent and reliable scientific evidence” was narrowly defined in Part I to consist of “at least two randomized controlled human clinical trials (“RCT”s)” that “yield statistically significant results” and are “double-blinded” whenever feasible. Alas, Part III’s baseline requirement for all health claims didn’t require RCT substantiation, whereas the specific requirement in Part I for disease-related claims not only contemplated RCT substantiation but called for —  as a categorical matter — two RCT’s.

As for the petitioners’ efficacy claims and non-specific establishment claims, the Commission found that “experts in the relevant fields” would require one or more “properly randomized and controlled human clinical trials” —“RCTs” — to “establish a causal relationship between a food and the treatment, prevention, or reduction of risk.” Without at least one such RCT, the Commission concluded, POM’s efficacy and non-specific establishment claims were inadequately substantiated.

Appeals Court Looks At POM FTC Marketing Case

On review, the U.S. District Court of Appeals for the District of Columbia Circuit almost entirely affirmed the lower court’s ruling against POM, as well as the injunction against further advertisements. However, the Order stated that it was unreasonable to require two double-blind, randomized, placebo-controlled RCT’s for the company to continue advertising “unqualified” health benefits of its products, and ultimately lowered the bar to one RCT. The Court held that the Commission fail[ed] adequately to justify a categorized floor of two RCTs for any and all disease claims.” The Court elaborated on its rationale, explaining:

“Requiring additional RCT’s without adequate justification exacts considerable costs, and not just in terms of the nutritional resources often necessary to design and conduct a properly randomized and controlled human clinical trial. If there is a categorical bar against claims about the disease-related benefits of a food product or dietary supplement in the absence of two RCTs, consumers may be denied useful, truthful information about products with a demonstrated capability to treat or prevent serious disease. That would subvert rather than promote the objectives of the commercial speech doctrine.” See Edenfield v. Fane, 507 U.S. 761,766 (1993).

The Appeals Court did rule, however, that the two trial requirement was not unreasonable.

#2: First Take-Away for Affiliate Marketers: Know When to Include Citations for Your Advertisements and Cite Properly

First and foremost, brands should appreciate the importance of content monitoring. Because according to the law, brands are responsible for all advertising done on their behalf. So, if an affiliate flouts FTC rules, the brand could be held 100% responsible.

Secondly, it’s imperative to understand that the courts often to defer to the FTC because the Commission “is often in a better position than are courts to determine when a practice is ‘deceptive’ within the meaning of the [FTC] Act,” and that “admonition is especially true with respect to allegedly deceptive advertising since the finding of a violation in the field rests so heavily on inference and pragmatic judgement.” (FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965)).

As such, minimizing liability for deceptive advertising claims makes financial and legal sense. Enhancing the depth and regularity of advertisement screenings (and that of  affiliates) increases the odds of catching problems before the FTC does.

This particular case illustrates the importance of backing up promotional claims with evidence. While it might seem like common sense, affiliate marketers should always mention limitations in cited research and conspicuously note any irregularities or conflicting studies. For example, despite POM’s knowledge of arterial thickness studies, which largely invalidated the findings of a POM study, a doctor associated with POM distributed a statement in 2006 claiming that “POM Wonderful Pomegranate Juice [had] been proven to promote cardiovascular health.”

So be proactive, verify your citations, and stay current with industry research. Also, cite any invalidated studies that might expose you to liability for deceptive advertising practices.

A: Relevant Affiliate Marketing Law

The FTC distinguishes between “efficacy claims” and “establishment claims.” (See Thompson Med. Co. v. FTC, 791 F.2d 189, 194 (D.C. Cir. 1986)). An efficacy claim suggests that a product successfully performs the advertised function or yields the advertised benefit, but fails to suggest any scientific proof of the product’s effectiveness. (See id.; Removatron Int’l Corp. v. FTC, 741 F.2d 1146, 1150 (9th Cir. 1984)).

If an ad conveys an efficacy claim, the advertiser must possess a “reasonable basis” for the claim. (See In Re Pfizer Inc., 81 F.T.C. 23, 62 (1972)). The question of whether “a claim of establishment is in fact made is a question of fact the evaluation [sic] of which is within the FTC’s peculiar expertise.” (Thompson Med. Co. v. F.T.C., 791 F.2d 189, 194 (D.C. Cir. 1986); see also Removatron Int’l Corp. v. F.T.C., 884 F.2d 1489, 1496 (1st Cir. 1989)).

#1: Efficacy Claims

The FTC examines whether an efficacy claim was made under the so-called “Pfizer factors,” including “the type of product,” “the type of claim,” and “the amount of substantiation experts in the field would consider reasonable.” (Daniel Chapter One, No. 9329, 2009 WL 5160000, at *25 (U.S. Fed. Trade Comm’n Dec. 24, 2009) (citing Pfizer, 81 F.T.C. at 64), aff’d, App’x 505 (D.C. Cir. 2010); see also Thompson Med. Co.m 104 F.T.C. at 821.)

#2: Establishment Claims

For establishment claims, the Commission generally does not apply the Pfizer factors.( See Removatron Int’l Corp., 111 F.T.C. 206,297 (1988), aff’d, 884 F.2d 1489 (1st Cir. 1989).) Rather, the amount of substantiation needed for an establishment claim depends on whether it is “specific” or “non-specific.” (See Thompson Med. Co., 791 F.2d at 194. ) Therefore, the Commission “determines what evidence would in fact [sic] establish such a claim in the relevant scientific community” and “then compares the advertisers’ substantiation evidence to that required by the scientific community.” (Removatron, 884 F.2d at 1498.)

Even if the Commission concludes that an advertiser conveyed efficacy or establishment claims but determines them to be false, misleading, or unsubstantiated, it can issue a finding of liability only “if the omitted information would be a material factor in the consumer’s decision to purchase the product.” (Am. Home Prods. Corp., 98 F.T.C. 136, 368 (1981), enforced as modified, 695 F.2d 681 (3d Cir. 1982); see also Colgate-Palmolive, 380 U.S. at 386-88.)

#3: Second Take-Away for Affiliate Marketers: Defending Against Private Consumer Class Actions Alleging Violations of the CFA

In addition to providing guidance on how affiliate marketers can enhance advertising disclosures, The POM Case also gives affiliate marketers’ more defensive options in the face of state-tried, private, deceptive marketing class actions  that rely on statutes like the CFA, 815 ILCS 505/2. Furthermore, the decision illustrates:

CFA Basics: Illinois State Advertising Law

Before exploring how the decision bolsters the potential defenses of affiliate marketers facing consumer class action litigation, it is necessary to wrap our heads around some CFA basics.

For starters, private plaintiffs cannot enforce the FTC Act. And, unlike the FTC, courts cannot state a cause of action based on an affiliate marketer’s alleged failure to substantiate their advertising claims. (Holloway v. Bristol-Myers Corp., 485 F.2d 986,997 (D.C. Cir. 1973); Fraker v. Bayer Corp., No.CVF08-1564 AWI GSA, 2009 WL 5865687, at *7 (E.D.  Cal. Oct. 6, 2009). ) Section 2 of the CFA provides that “deceptive acts or practices or the concealment, suppression, or omission of any material fact, with intent [sic] that others rely upon the concealment, suppression, or omission of such material face in the conduct of any trade or commerce are hereby declared unlawful.”

To prove a private cause of action under section 10a(a) of the Act, a plaintiff must establish:

(Avery v. State Farm Mut. Auto Ins. Co., 216 III. 2d 100, 179-80 (2005))

False Advertising Defendants May Have A New Defense Tool

CFA plaintiffs often allege that affiliate marketers’ establishment claims are rendered false and misleading by the lack of RCT’s — essentially the gold standard of scientific substantiation. Moreover, many plaintiffs make the argument that if advertising claims can’t be substantiated under the FTC’s standards, the company needs to prove that its product has the benefits advertised. The POM Case might be helpful in providing affiliate marketers a stronger position to refute such contentions, in light of the Court’s recognition that the “baseline requirement for all health claims does not require RCT substantiation.”  While the Court did not specify the type of substantiation required, it’s clear that something less than two RCT’s could suffice in supporting such claims.

Having at least one RCT can be powerful evidence in a consumer class action that a particular claim is not misleading. In fact, Illinois Courts have held that “[t]aken together, the cases stand for the proposition that the [Illinois] CFA will not impose higher disclosure requirements on parties that are sufficient to satisfy federal regulations.” (Bober v. GlaxoWellcome PLC, 246 F.3d 934, 941 (7th Cir. 2001). )The D.C. Circuit’s conclusion that a second RCT has little marginal benefit should also provide some cover to companies lacking the resources to conduct and include multiple RCTs to support an advertising campaign. However, just as the lack of two RCTs is not itself a fatal blow, companies should not view the inclusion of one supportive RCT as providing immunity from consumer class action liability.

“Preliminary Study” or “Initial Study” Loophole?

Calling a study “preliminary” or “initial” is no longer sufficient. Instead, a “substantive disclaimer” may be requested, such as a statement that “evidence in support of this claim is inconclusive.” By adequately describing the deficiencies of the product, companies can avoid shelling out for expensive clinical trials to substantiate advertising claims.


Contact A Marketing and Advertising Lawyer Today

If you are an affiliate marketer, and you would like to speak to a marketing and advertising attorney, get in touch today!


Case Source

POM Wonderful, LLC v. F.T.C., No. 13-1060, 2015 WL 394093, at *12 (D.C. Cir. Jan. 20, 2015); See FTC Act 5(a)(1), 12(a); 15 U.S.C. 45(a)(1); 15 U.S.C. 52(a)