69850 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Notices 

your comment. Your comment— 

including your name and your state— 

will be placed on the public record of 

this proceeding, including, to the extent 

practicable, on the public Commission 

Web site, at http://www.ftc.gov/os/

publiccomments.shtm. As a matter of 

discretion, the Commission tries to 

remove individuals’ home contact 

information from comments before 

placing them on the Commission Web 

site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, such as anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

identification number or foreign country 

equivalent, passport number, financial 

account number, or credit or debit card 

number. You are also solely responsible 

for making sure that your comment does 

not include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, do not include 

any ‘‘[t]rade secret or any commercial or 

financial information which is . . . 

privileged or confidential,’’ as discussed 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you are required to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

4.9(c). Your comment will be kept 

confidential only if the FTC General 

Counsel grants your request in 

accordance with the law and the public 

interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comment online, or to send it to the 

Commission by courier or overnight 

service. To make sure that the 

Commission considers your online 

comment, you must file it at https://

ftcpublic.commentworks.com/ftc/

rvaluerulepra2, by following the 

instructions on the web-based form. If 

this Notice appears at http://

www.regulations.gov, you also may file 

a comment through that Web site. 

If you file your comment on paper, 

write ‘‘R-value Rule: FTC File No. 

R811001’’ on your comment and on the 

envelope, and mail or deliver it to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW., Suite 

CC–5610 (Annex J), Washington, DC 

20580, or deliver your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Constitution Center, 400 7th Street SW., 

5th Floor, Suite 5610 (Annex J), 

Washington, DC 20024. If possible, 

submit your paper comment to the 

Commission by courier or overnight 

service. 

The FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before December 24, 2014. You can find 

more information, including routine 

uses permitted by the Privacy Act, in 

the Commission’s privacy policy, at 

http://www.ftc.gov/ftc/privacy.shtm. 

Comments on the information 

collection requirements subject to 

review under the PRA should also be 

submitted to OMB. If sent by U.S. mail, 

address comments to: Office of 

Information and Regulatory Affairs, 

Office of Management and Budget, 

Attention: Desk Officer for the Federal 

Trade Commission, New Executive 

Office Building, Docket Library, Room 

10102, 725 17th Street NW., 

Washington, DC 20503. Comments sent 

to OMB by U.S. postal mail, however, 

are subject to delays due to heightened 

security precautions. Thus, comments 

instead should be sent by facsimile to 

(202) 395–5167. 

David C. Shonka, 

Principal Deputy General Counsel. 

[FR Doc. 2014–27721 Filed 11–21–14; 8:45 am] 

BILLING CODE 6750–01–P 

FEDERAL TRADE COMMISSION 

[File No. 132 3219] 

True Ultimate Standards Everywhere, 

Inc., Doing Business as TRUSTe, Inc.; 

Analysis To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed Consent Agreement. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices. The attached 

Analysis to Aid Public Comment 

describes both the allegations in the 

draft complaint and the terms of the 

consent order—embodied in the consent 

agreement—that would settle these 

allegations. 

DATES: Comments must be received on 

or before December 17, 2014. 

ADDRESSES: Interested parties may file a 

comment at https://

ftcpublic.commentworks.com/ftc/

trusteconsent online or on paper, by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Write ‘‘True Ultimate Standards 

Everywhere, Inc., Doing Business As 

TRUSTe, Inc.—Consent Agreement; File 

No. 132 32193’’ on your comment and 

file your comment online at https://

ftcpublic.commentworks.com/ftc/

trusteconsent by following the 

instructions on the Web-based form. If 

you prefer to file your comment on 

paper, write ‘‘True Ultimate Standards 

Everywhere, Inc., Doing Business As 

TRUSTe, Inc.—Consent Agreement; File 

No. 132 32193’’ on your comment and 

on the envelope, and mail your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW., Suite CC–5610 (Annex D), 

Washington, DC 20580, or deliver your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, Constitution Center, 400 7th 

Street SW., 5th Floor, Suite 5610 

(Annex D), Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

Jamie Hine (202–326–2188), Bureau of 

Consumer Protection, 600 Pennsylvania 

Avenue NW., Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to Section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement, and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained from the FTC 

Home Page (for November 17, 2014), on 

the World Wide Web, at http://

www.ftc.gov/os/actions.shtm. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before December 17, 2014. Write ‘‘True 

Ultimate Standards Everywhere, Inc., 

Doing Business As TRUSTe, Inc.— 

Consent Agreement; File No. 132 

32193’’ on your comment. Your 

comment—including your name and 

your state—will be placed on the public 

record of this proceeding, including, to 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Notices 69851 

1 In particular, the written request for confidential 

treatment that accompanies the comment must 

include the factual and legal basis for the request, 

and must identify the specific portions of the 

comment to be withheld from the public record. See 

FTC Rule 4.9(c), 16 CFR 4.9(c). 

the extent practicable, on the public 

Commission Web site, at http://

www.ftc.gov/os/publiccomments.shtm. 

As a matter of discretion, the 

Commission tries to remove individuals’ 

home contact information from 

comments before placing them on the 

Commission Web site. 

Because your comment will be made 

public, you are solely responsible for 

making sure that your comment does 

not include any sensitive personal 

information, like anyone’s Social 

Security number, date of birth, driver’s 

license number or other state 

identification number or foreign country 

equivalent, passport number, financial 

account number, or credit or debit card 

number. You are also solely responsible 

for making sure that your comment does 

not include any sensitive health 

information, like medical records or 

other individually identifiable health 

information. In addition, do not include 

any ‘‘[t]rade secret or any commercial or 

financial information which . . . is 

privileged or confidential,’’ as discussed 

in Section 6(f) of the FTC Act, 15 U.S.C. 

46(f), and FTC Rule 4.10(a)(2), 16 CFR 

4.10(a)(2). In particular, do not include 

competitively sensitive information 

such as costs, sales statistics, 

inventories, formulas, patterns, devices, 

manufacturing processes, or customer 

names. 

If you want the Commission to give 

your comment confidential treatment, 

you must file it in paper form, with a 

request for confidential treatment, and 

you have to follow the procedure 

explained in FTC Rule 4.9(c), 16 CFR 

4.9(c).1 Your comment will be kept 

confidential only if the FTC General 

Counsel, in his or her sole discretion, 

grants your request in accordance with 

the law and the public interest. 

Postal mail addressed to the 

Commission is subject to delay due to 

heightened security screening. As a 

result, we encourage you to submit your 

comments online. To make sure that the 

Commission considers your online 

comment, you must file it at https://

ftcpublic.commentworks.com/ftc/

trusteconsent by following the 

instructions on the Web-based form. If 

this Notice appears at http://

www.regulations.gov/#!home, you also 

may file a comment through that Web 

site. 

If you file your comment on paper, 

write ‘‘True Ultimate Standards 

Everywhere, Inc., Doing Business As 

TRUSTe, Inc.—Consent Agreement; File 

No. 132 32193’’ on your comment and 

on the envelope, and mail your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, 600 Pennsylvania Avenue 

NW., Suite CC–5610 (Annex D), 

Washington, DC 20580, or deliver your 

comment to the following address: 

Federal Trade Commission, Office of the 

Secretary, Constitution Center, 400 7th 

Street SW., 5th Floor, Suite 5610 

(Annex D), Washington, DC 20024. If 

possible, submit your paper comment to 

the Commission by courier or overnight 

service. 

Visit the Commission Web site at 

http://www.ftc.gov to read this Notice 

and the news release describing it. The 

FTC Act and other laws that the 

Commission administers permit the 

collection of public comments to 

consider and use in this proceeding as 

appropriate. The Commission will 

consider all timely and responsive 

public comments that it receives on or 

before December 17, 2014. You can find 

more information, including routine 

uses permitted by the Privacy Act, in 

the Commission’s privacy policy, at 

http://www.ftc.gov/ftc/privacy.htm. 

Analysis of Proposed Consent Order To 

Aid Public Comment 

The Federal Trade Commission has 

accepted, subject to final approval, an 

agreement containing an order from 

True Ultimate Standards Everywhere, 

Inc. (‘‘TRUSTe’’). 

The proposed consent order has been 

placed on the public record for thirty 

(30) days for receipt of comments by 

interested persons. Comments received 

during this period will become part of 

the public record. After thirty (30) days, 

the Commission again will review the 

agreement and the comments received 

and will decide whether it should 

withdraw from the agreement or make 

final the agreement’s proposed order. 

This matter involves respondent’s 

marketing and distribution of a variety 

of online privacy seals (‘‘seals’’) for 

companies to display on their Web sites. 

The FTC complaint alleges that 

respondent violated Section 5(a) of the 

FTC Act by falsely representing to 

consumers the frequency with which it 

reviews and verifies the practices of 

companies displaying its Web site and 

mobile seals. Specifically, the complaint 

alleges that from June 1997 until 

January 2013, respondent failed to 

conduct annual recertifications for 

almost 1,000 companies holding 

respondent’s TRUSTed Web sites, 

COPPA/Children’s Privacy, EU Safe 

Harbor, TRUSTed Cloud, TRUSTed 

Apps, TRUSTed Data, and TRUSTed 

Smart Grid seals. In addition, the 

complaint alleges that respondent 

provided to its sealholders the means 

and instrumentalities to misrepresent 

that respondent is a non-profit 

corporation. The FTC complaint 

describes, with specificity, that 

following respondent’s transition to a 

for-profit corporation in July 2008, 

respondent recertified numerous clients 

whose privacy policies continued to 

describe TRUSTe as a non-profit entity. 

The proposed consent order contains 

provisions designed to prevent 

respondent from engaging in similar 

acts and practices in the future. Part I of 

the proposed order prohibits respondent 

from misrepresenting (1) the steps 

respondent takes to evaluate, certify, 

review, or recertify a company’s privacy 

practices; (2) the frequency with which 

respondent evaluates, certifies, reviews, 

or recertifies a company’s privacy 

practices; (3) the corporate status of 

respondent and its independence; and 

(4) the extent to which any person or 

entity is a member of, adheres to, 

complies with, is certified by, is 

endorsed by, or otherwise participates 

in any privacy program sponsored by 

respondent. Part II of the proposed order 

prohibits respondent from providing to 

any person or entity the means and 

instrumentalities (including any 

required or model language for use in 

any privacy policy or statement) to 

misrepresent any of the same items in 

Part I of the proposed order. 

Parts III and IV of the proposed order 

contain additional reporting 

requirements with respect to 

respondent’s COPPA/Children’s Privacy 

seal. First, the proposed order expands 

respondent’s COPPA recordkeeping and 

reporting requirements to ten years. 

Second, the proposed order requires 

respondent to report (1) the number of 

new seals it awards; (2) how it assesses 

the fitness of members; and (3) any 

additional steps it takes to monitor 

compliance with the safe harbor 

requirements. Third, the proposed order 

expands respondent’s COPPA 

requirement to retain consumer 

complaints and descriptions of 

disciplinary actions to include 

consumer complaints related to 

respondent and its safe harbor program 

participants as well as all documents 

related to disciplinary actions taken by 

respondent. Fourth, the proposed order 

imposes additional COPPA 

recordkeeping requirements, such as a 

requirement that respondent retain 

detailed explanations of assessments of 

new and existing applicants in any 

COPPA safe harbor program. 


asabaliauskas on DSK5VPTVN1PROD with NOTICES
69852 Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Notices 

1TRUSTe’s APEC Privacy certification program 

was not the subject of the allegations in the 

complaint. TRUSTe became an ‘‘Accountability 

Agent’’ for the APEC Cross-Border Privacy Rules 

System in June 2013, and issued its first 

certification under that program in August 2013. 

2 In the Matter of Shell Oil Co., 128 F.T.C. 749 

(1999); FTC v. Magui Publishers, Inc., No. 89– 

3818RSWL(GX), 1991 WL 90895 (C.D. Cal. Mar. 28, 

1991), aff’d 9 F.3d 1551 (9th Cir. 1993). 

3Commissioner Ohlhausen suggests that the 

allegations underlying Count II would be more 

appropriately viewed through the lens of secondary 

‘‘aiding and abetting’’ liability. Regardless of 

whether one could construct alternative theories of 

liability, our concern is with TRUSTe’s own 

actions. As discussed above, the deception here was 

the result of TRUSTe’s own actions. 

1 In the Matter of True Ultimate Standards 

Everywhere, Inc., FTC File No. 1323219, Statement 

of Chairwoman Edith Ramirez, Commissioner Julie 

Part V of the proposed order requires 

respondent to pay $200,000 to the 

United States Treasury as disgorgement. 

The purpose of this analysis is to 

facilitate public comment on the 

proposed order. It is not intended to 

constitute an official interpretation of 

the proposed complaint order or to 

modify in any way the proposed order’s 

terms. 

By direction of the Commission, 

Commissioner Ohlhausen voting ‘‘yes,’’ 

consistent with the views expressed in 

her partial dissent. 

Donald S. Clark, 

Secretary. 

Statement of Chairwoman Edith 

Ramirez, Commissioner Julie Brill, and 

Commissioner Terrell McSweeny 

We write to express our strong 

support for the complaint and consent 

order in this case. 

The Commission unanimously 

supports Count I of the complaint in 

this matter, which is of paramount 

importance, in light of TRUSTe’s unique 

role in increasing consumer trust in the 

global marketplace and ensuring the 

effectiveness of relevant self-regulatory 

frameworks. TRUSTe operates privacyrelated self-regulatory and oversight 

programs for businesses and offers 

certified privacy seals for program 

participants, including (1) COPPA/

Children’s Privacy, which certifies 

compliance with the Children’s Online 

Privacy Protection Act and 

implementing regulations; (2) EU Safe 

Harbor, which certifies compliance with 

the U.S.-EU Safe Harbor Framework; (3) 

TRUSTed Apps, which certifies the 

privacy practices of mobile applications; 

and (4) APEC Privacy, which certifies 

compliance with the Asia-Pacific 

Economic Cooperation Cross-Border 

Privacy Rules System.1

In Count I, the Commission alleges 

that TRUSTe promised consumers it 

would annually recertify its selfregulatory program participants for 

compliance with TRUSTe’s privacy 

program requirements, but that, in many 

instances, it failed to do so. Annual 

recertification is a cornerstone of the 

service TRUSTe provides. It helps 

ensure that companies (1) continue to 

follow TRUSTe’s program requirements, 

(2) do not make material changes to 

their practices or policies without 

appropriate consent, and (3) 

periodically consider the impact of 

technology and marketplace 

developments in their privacy practices. 

TRUSTe did not fulfill its obligations; 

today’s order helps to ensure that 

TRUSTe will do so in the future. 

Consumers who see the TRUSTe seal on 

a Web site or mobile app should be 

confident that a trusted third party has 

kept its promise to review and vouch for 

the privacy practices of that Web site or 

mobile app. 

We also believe that Count II 

represents an appropriate use of ‘‘means 

and instrumentalities’’ liability. At the 

time TRUSTe provided model language 

for its clients’ privacy policies stating 

that TRUSTe was a nonprofit entity, 

there is no question that the statement 

was true. However, after TRUSTe 

informed clients of its for-profit status 

in 2008, many clients neglected to 

update their policies and continued to 

represent that TRUSTe was a nonprofit 

entity. These ongoing representations by 

TRUSTe’s clients clearly became 

deceptive once TRUSTe converted to a 

for-profit entity. Yet for five years, 

TRUSTe continued to recertify some 

companies that included this deceptive 

statement, that TRUSTe itself had 

disseminated, in their privacy policies. 

TRUSTe was well-positioned to rectify 

the misrepresentation about its own 

corporate status—it could have elected 

simply not to recertify the companies in 

question until the misrepresentation 

was cured. It failed to take this 

straightforward step and instead 

continued to bless the language at issue 

by giving the companies its seal of 

approval. 

In Shell Oil Company and FTC v. 

Magui Publishers, Inc., which 

Commissioner Ohlhausen cites in her 

statement, the Commission concluded 

that by providing customers with 

deceptive statements, the respondent 

furnished the means and 

instrumentalities for its clients to engage 

in deceptive acts or practices.2 In this 

case, although TRUSTe disclosed to 

clients its change in status, it continued 

to recertify privacy policies using 

language TRUSTe had itself supplied 

about its corporate status that was no 

longer true. TRUSTe’s recertification of 

these inaccurate privacy policies is the 

conduct we take aim at—it provided a 

stamp of approval of a false 

representation which TRUSTe’s clients 

then passed along to consumers via 

their Web sites. As such, TRUSTe 

provided its clients with the means and 

instrumentalities to deceive others. The 

application of means and 

instrumentalities liability in this case is 

consistent with the principle underlying 

Shell and Magui Publishers, namely, 

that one who places the means of 

deception in the hands of another is also 

liable for the deception under Section 

5.3 The inclusion of this count is 

particularly appropriate here, given 

TRUSTe’s unique position in the 

privacy self-regulatory ecosystem. 

Companies that purport to hold their 

clients accountable to protect consumer 

privacy should themselves be held to an 

equally high standard. 

Partial Dissent of Commissioner 

Maureen K. Ohlhausen 

I support Count I of the complaint in 

this matter because of TRUSTe’s unique 

position of consumer trust as a third 

party certifier. However, I do not 

support the use of ‘‘means and 

instrumentalities’’ liability in Count II of 

the complaint and dissent as to that 

Count. 

TRUSTe was initially organized in 

1997 as a non-profit. Before July 2008, 

TRUSTe required every certified client 

Web site to include in its privacy policy 

a description of TRUSTe stating in part, 

‘‘TRUSTe is [a] non-profit 

organization.’’ On July 3, 2008, TRUSTe 

changed its corporate form from nonprofit to for-profit. The company 

announced the change to its clients and 

requested that all clients update the 

relevant privacy policy language on 

their Web sites. Some clients did not 

update their Web sites. When TRUSTe 

recertified such Web sites, TRUSTe 

would typically request, but not require, 

that the client update their privacy 

policy to reflect the change to for-profit 

status. 

Count II of our complaint alleges that 

by recertifying Web sites containing 

privacy policies that inaccurately 

describe TRUSTe as a non-profit, 

TRUSTe provided the means and 

instrumentalities to its clients to 

misrepresent that TRUSTe was a nonprofit corporation. The majority’s 

statement argues that TRUSTe, by 

‘‘recertify[ing] a statement that was 

untrue,’’ provided to its clients the 

means and instrumentalities to deceive 

consumers.1


asabaliauskas on DSK5VPTVN1PROD with NOTICES
Federal Register / Vol. 79, No. 226 / Monday, November 24, 2014 / Notices 69853 

Brill, and Commissioner Terrell McSweeny, at 2 

(Nov. 17, 2014). 2 In the Matter of Shell Oil Co., 128 F.T.C. 749 

(1999). 3 Id. at *10 (Public Statement of Chairman 

Pitofsky, Commissioner Anthony and 

Commissioner Thompson) (emphasis added). 

Similarly, Commissioner Orson Swindle’s dissent 

stated that under FTC precedent, ‘‘means and 

instrumentalities is a form of primary liability in 

which the respondent was using another party as 

the conduit for disseminating the respondent’s 

misrepresentations to consumers.’’ Id. at *14–15 

(Dissenting Statement of Commissioner Orson 

Swindle) (emphasis added). Swindle’s dissent 

likewise emphasized that a defendant ‘‘may not be 

held primarily liable unless it has actually made a 

misrepresentation.’’ Id. (quoting In re JWP Inc. 

Securities Lit., 928 F. Supp. 1239, 1256 (S.D.N.Y. 

1996)). See also FTC v. Magui Publishers, Inc., Civ. 

No. 89–3818RSWL(GX), 1991 WL 90895, at *14, 

(C.D. Cal. 1991), aff’d, 9 F.3d 1551 (9th Cir. 1993) 

(‘‘One who places in the hands of another a means 

or instrumentality to be used by another to deceive 

the public in violation of the FTC Act is directly 

liable for violating the Act.’’). 

4 Magui Publishers, Inc., 1991 WL 90895, at *17. 

5 ‘‘[A] respondent who has provided assistance to 

another party that has made misrepresentations is 

at most secondarily liable—in particular, for aiding 

and abetting another’s misrepresentations.’’ Shell 

Oil Co., 128 F.T.C. 749, *15 (1999) (Swindle 

Dissent) (citing Wright v. Ernst & Young LLP, 152 

F.3d 169, 175 (2d Cir. 1998), cert. denied, 119 S.Ct. 

870 (1999); Shapiro v. Cantor, 123 F.3d 717, 720 (2d 

Cir. 1997); Anixter v. Home-Stake Production Co., 

77 F.3d 1215, 1225 (10th Cir. 1996) (‘‘the critical 

element separating primary from aiding and 

abetting violations is the existence of a 

representation, made by the defendant.’’)). 

6 Magui Publishers, Inc., 1991 WL 90895, at *15. 

7 Id. at *14. 

8Cent. Bank, N.A. v. First Interstate Bank, N.A., 

511 U.S. 164 (1994). 

9Shell Oil Co., 128 F.T.C. 749, *19 (Swindle 

Dissent). 

I disagree with this use of means and 

instrumentalities. To be liable of 

deception under means and 

instrumentalities requires that the party 

itself must make a misrepresentation, as 

the Commission detailed in Shell Oil 

Company.2 According to the majority in 

that case, ‘‘[T]he means and 

instrumentalities doctrine is intended to 

apply in cases . . . where the originator 

of the unlawful material is not in 

privity with consumers’’ and ‘‘it is well 

settled law that the originator is liable 

if it passes on a false or misleading 

representation with knowledge or 

reason to expect that consumers may 

possibly be deceived as a result.’’ 3 For 

example, in FTC v. Magui Publishers, 

Inc., the court found the defendant 

directly liable for providing the means 

and instrumentalities to violate Section 

5 when it sold Salvador Dali prints with 

forged signatures to retail customers, 

who then sold the prints to consumers.4

Unlike Shell and Magui Publishers, 

the statement that TRUSTe provided to 

its clients was indisputably truthful at 

the time. During the period in which 

TRUSTe required client privacy policies 

to state that TRUSTe was a non-profit, 

TRUSTe was, in fact, a non-profit. Once 

TRUSTe changed to for-profit status, it 

no longer required clients to state its 

non-profit status and actively 

encouraged clients to correct their 

privacy policies. TRUSTe did not pass 

to clients any false or misleading 

representations regarding its for-profit 

status. Nor was TRUSTe’s recertification 

of Web sites a misrepresentation of 

TRUSTe’s non-profit status to its clients; 

during recertification TRUSTe again 

clearly communicated its for-profit 

status to clients by requesting that its 

clients update their privacy policies. 

Because TRUSTe accurately represented 

its non-profit status to its clients, 

TRUSTe cannot be primarily liable for 

deceiving consumers under a means and 

instrumentalities theory. 

TRUSTe’s alleged recertifications of 

untrue statements are more properly 

analyzed as secondary liability for 

aiding and abetting.5 In Magui 

Publishers the court found that the 

defendant forgers were not only directly 

liable for their own misstatements, but 

also secondarily liable for the retailers’ 

fraudulent misrepresentations to 

consumers because defendants 

‘‘supplied their deceptive art work, 

certificates and promotional materials to 

their retail customers with full 

knowledge these customers would use 

the materials to deceive consumers.’’ 6

The court explained that aiding and 

abetting has three components: ‘‘(1) The 

existence of an independent primary 

wrong; (2) actual knowledge by the 

alleged aider and abettor of the wrong 

and of his or her role in furthering it; 

and (3) substantial assistance in the 

commission of the wrong.’’ 7

It is not clear that TRUSTe’s clients 

committed an independent primary 

wrong. However, TRUSTe certainly had 

knowledge of the misstatements in the 

privacy policies and of TRUSTe’s role in 

facilitating those misstatements. And, 

arguably, its certifications may have 

provided substantial assistance in 

deceiving consumers. Regardless, 

because TRUSTe never misrepresented 

its corporate status, TRUSTe’s actions 

regarding its corporate status at most 

comprise aiding and abetting its clients’ 

actions. 

Perhaps all this seems like legal 

hairsplitting, but it is not. Under the 

Supreme Court’s decision in Central 

Bank of Denver v. First Interstate Bank 

of Denver,8 the FTC ‘‘may well be 

precluded from bringing Section 5 cases 

under an aiding and abetting theory.’’ 9

By prosecuting activities more properly 

analyzed as aiding and abetting under 

the guise of means and instrumentalities 

liability, I am concerned that we are 

stepping beyond the limits the Supreme 

Court has established. I therefore dissent 

from Count II. 

[FR Doc. 2014–27733 Filed 11–21–14; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Disease Control and 

Prevention 

[Docket No. CDC–2014–0015] 

Request for Comment on Draft 

Vaccines Adverse Event Reporting 

System (VAERS) 2.0 Form 

AGENCY: Centers for Disease Control and 

Prevention (CDC), Department of Health 

and Human Services (HHS). 

ACTION: Notice of request for public 

comment. 

SUMMARY: The Centers for Disease 

Control and Prevention (CDC), located 

within the Department of Health and 

Human Services (HHS), is publishing 

this notice requesting public comment 

on the proposed VAERS 2.0 form, which 

is intended to replace the current 

VAERS–1 form (https://vaers.hhs.gov/

resources/vaers_form.pdf). CDC and the 

U.S. Food and Drug Administration 

(FDA) co-administer the Vaccines 

Adverse Event Reporting System 

(VAERS), a post-licensure (i.e., after 

vaccines have been licensed by the FDA 

and are being used in the community) 

reporting system that accepts submitted 

reports of adverse events that occur after 

vaccination from healthcare providers, 

manufacturers, and the public. 

Healthcare providers and vaccine 

manufacturers are required to submit 

VAERS reports. The National Childhood 

Vaccine Injury Act of 1986, section 2125 

of the Public Health Service Act (42 

U.S.C. 300aa–25) authorized VAERS. 

The current VAERS form has been used 

since 1990. 

DATES: Written comments must be 

received on or before January 23, 2015. 

ADDRESSES: You may submit comments, 

identified by docket number CDC– 

2014–0015 by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: You may also submit written 

comments to the following address: 

Centers for Disease Control and 

Prevention, (CDC), National Center for 

Emerging and Zoonotic Infectious 

Diseases, Division of Healthcare Quality 

Promotion, Immunization Safety Office, 

Attn: VAERS 2.0 form Docket No. CDC– 


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