On July 8, a panel for the U.S. Court of Appeals for the Eighth Circuit issued a significant decision in the case of Custom Communications, Inc. v. Federal Trade Commission (FTC). The panel vacated the FTC’s amended Negative Option Rule aka the “click-to cancel” rule, citing procedural deficiencies in the rulemaking process. Specifically, the panel found that the FTC failed to conduct a required preliminary regulatory analysis, which deprived stakeholders of the opportunity to comment on alternatives and engage with the FTC’s cost-benefit analysis.
