MLM Attorney Kevin Thompson: FTC’s Disclosure Guidelines for Online Marketing: How to get it right (Part 2)

This article was written by +Kevin Thompson in collaboration with our stellar summer associate, Jake Perry.


In the last article, FTC’s Disclosure Guidelines for Online Marketing: How to get it right (Part 1), we walked through the Federal Trade Commission’s recently published .com Disclosure Guidelines (fully included below). In this installment, we’re going to walk through five hypothetical examples of common marketing claims made in the MLM industry. The goal of this post is to provide you with practical, easy-to-understand tips on how to make proper claims.

The format is simple: I’m going to give you common fact patterns of how claims are made in the MLM industry. Then I’ll show you what most distributors would WANT to do as far as making disclosures. Then I’ll show what they SHOULD do, as per the .com Disclosure Guidelines. These guidelines apply whether the company is an MLM startup or a well-established company.

Ready? Go time!

Click here to read the full article!

MLM Legal Alert By The MLM Attorney: FTC’s Disclosure Guidelines for Online Marketing: How to get it right (Part 1)

Jake Perry is an associate of the MLM legal team over at Thompson & Burton. He is collaborating with MLM attorney Kevin Thompson, writing a series of articles on the FTC’s disclosure guidelines. For those who wish to review a disclosure page you can reviews ours here at MLM Help Desk.


The world we live in today is changing at a rapid pace. Technological developments have revolutionized the way we communicate and live. We can now complete our Christmas shopping lists from the comfort of our recliners. But while these technological advancements bring great convenience, they also create serious problems for marketers. Bottom line: technology is growing faster than the law can keep up. It was easy to regulate marketers back in 2000 when the original guidelines were written. Few people had the ability to publish…anything. But today, it’s a different ballgame. We all have the means of production in the palm of our hands with our mobile devices. With communication tools such as, Facebook, Twitter and WordPress, it’s been really difficult for network marketing companies to create clear policies for their salespeople. Luckily, the Federal Trade Commission clarified much of the confusion. The FTC has recently published Disclosure Guidelines (fully included below). Essentially, the guidelines provide a “how to” guide for giving adequate disclosures in online advertisements. This is a good thing. The FTC has recognized that this area of the law is fuzzy, blurry, and every other synonym for “unclear” you can find in Merriam-Webster.

These guidelines are extremely helpful and a step in the right direction for our industry. But….the document is over 50 pages long. This is why I have decided to boil them down in a way that makes sense for you all. The purpose of this series is to give you specific instructions on how to stay within the boundaries of these guidelines. While the guidelines never referenced any MLMs, I’ll be providing examples using fact patterns that are common to our industry.

Before we get into those fact patterns, it’s important to understand the basics of these guidelines. There are several key themes to keep in mind when providing “adequate disclosure.”

1) Required disclosures must be “clear and conspicuous.”
A clear and conspicuous disclosure is:
i. One that is within close proximity to the relevant claim in question.
ii. One that is not hidden in a bunch of senseless words.
iii. One that is prominent and easy to spot i.e. clearly visible.
iv. One that is in plain language that your target audience will understand.
v. One that is not accompanied by other distractions in the advertisement.

In other words, do not bury the disclosure in the fine print. It needs to be seen. Period. Keep in mind, the manner you communicate the relevant claim should also be the manner you communicate your disclosure. Therefore, a YouTube video should contain a disclaimer in both video and audio formats.

2) Do not partake in “unfair or deceptive acts or practices.”
While this should go without being said, it’s important to remember that “honesty” is always the best policy. Never try to hide the ball or position your product or service in a way that’s inconsistent with reality. Transparency with customers is actually good for business long term.
If the claim is untrue, there is no amount of disclosure or substantiation that can “sanitize” the statement. For example, an advertisement states that an individual lost 100 pounds taking a new weight loss supplement when in reality she only lost 75 pounds. In this scenario, no disclosure or amount of substantiation can qualify or limit the claim being made because the claim is blatantly false. Therefore, in this scenario, the claim itself must be modified, i.e. individual X lost 75 pounds using the dietary supplement.

3) Claims must have “substantiation,” regardless if they originate from the company or the field.
Substantiation refers to evidence that backs up your claim. The FTC states in the guidelines that before distributing an ad, advertisers must have “appropriate support for all express and implied objective claims that the ad conveys to reasonable consumers.” In other words, if a company or its sales people make aggressive marketing claims, those claims need to be backed up with reliable data. Research studies, expert opinions, and other types of data must be used to support any type of claim you make.

With MLM companies, distributors are also required to provide substantiation when promoting a product or service. As made clear in the Endorsements and Testimonials Guidelines published in 2011, the company can be held responsible for any false or misleading claims made by its distributors. Therefore, it’s vitally important to ensure the field is educated on ways to properly market the products and services. It’s crucial that the field understands when and how to provide substantiations and income disclosures. This is where compliance training becomes a key factor. If you care about the longevity of your business, you’ll make the investment to make sure your reps are adequately trained.

4) Would your disclosure give a “reasonable customer” notice of the information?
A reasonable customer is a hypothetical person who contains the necessary intelligence, judgment, attention, knowledge, and experience required to function in our society. For example, where a disclaimer is located at the bottom of a website in 30 lines of small text titled “LEGAL TERMS AND CONDITIONS,” a reasonable person would never expect to find a disclosure about the product they are buying buried there. A reasonable person would expect to find the disclosure somewhere within close proximity of the statement in question. When you’re creating promotional materials, use common sense when figuring out the location and form of your disclosures.

5) Research and follow-up on the effectiveness of your disclosure.
The FTC states that the ultimate test to determine the adequacy of a disclosure is whether the information intended to be disclosed is actually conveyed to consumers. While this is not a requirement made by the FTC in making an adequate disclosure, be forewarned that you will run the risk of having your disclosure declared inadequate. The FTC recommends conducting controlled side-by-side research experiments to determine where the average consumer does and does not look on a computer screen to test the effectiveness of your disclosures. The FTC also recommends assessing the effectiveness of a disclosure via hyperlink by monitoring the link’s click-through rate and make adjustments accordingly. If you know of an analytics geek that’s good with tech, it’s time to pay him or her. That data is going to be very important.

6) If you cannot follow the FTC guidelines in your advertisement, do not make the claim in question.
Where it is not possible to follow the FTC’s guidelines in giving adequate disclosure to customers, the claim in question should NOT be disseminated. This further reiterates point #1 and #4. A disclosure is not adequate simply because it is the best you can do under the circumstances. The disclaimer must actually convey the qualifying or limiting information to the ultimate consumer.

A perfect example of when it is not possible to ensure compliance with the FTC’s guidelines is when a distributor makes an income claim via Twitter. The character count allowed per “tweet” is simply not high enough to ensure that adequate disclosure is given to the consumer. As an example, a proper disclaimer could take up half of the tweet: “the average person can expect to earn between $300 and $500 per month.” While it’s true that a hyperlink may be included within a tweet, a reasonable consumer will not likely realize that “” leads to a disclosure of the statement made. Therefore, it is best to completely avoid making income claims on Twitter altogether.


Be careful. With companies that exercise tight control over their marketing efforts, complying with these standards will be easy. But for network marketing companies that rely on the creativity of a volunteer army, it’s going to be incredibly to walk this tight rope. Compliance training is going to be incredibly important to ensure sales leaders really understand how to do things right. Proper behavior in the field is not going to happen by sending out a single newsletter once a quarter or referencing the “C” word (compliance) at an annual convention. It’s going to take commitment. In Part 2 of this series, I’ll provide you with specific instruction on ways to do this right. I’ll be sure to use fact patterns that are common in the MLM industry.



Jake Perry is a Summer Associate at Thompson Burton PLLC.

Jake is a rising second-year law student at the University of Tennessee. After ranking at the top of his class during his first year of law school and after a rigorous interview process, Jake was asked to join Thompson Burton’s summer associate program. Jake will assist with document review, case analysis and research this summer. He is not licensed to practice law in any jurisdiction at this time.

Prior to joining Thompson Burton, Jake organized and managed a number of philanthropic events at Tennessee Technological University including a benefit that raised over $2,000 for the Prostate Cancer Foundation.

Jake is from McMinnville, TN. Jake enjoys spending time with his family in McMinnville and his girlfriend, Emily, who resides in Lebanon. His hobbies include jogging, golfing, and playing guitar.


  • University of Tennessee College of Law, Candidate for J.D., 2015
  • Tennessee Technological University, B.S. Political Science, magna cum laude, 2012



Zeek Rewards News: WARNING This Will Be Offensive, Founder Of ZTeamBiz aka Fun Club USA Spreading Bold Face Lies?

Truth & Justice

This morning I was sent a series of email threads purportedly from Robert Craddock, the founder of and Fun Club USA. What caused me concern was the fact the bold face lies were so easy to undercover and find the truth, that even a fifth grader could do it!

MLM Attorney Kevin Thompson
Now to the issue at hand. Below you will see a series of email threads that have taken place, where Robert Craddock the founder of Fun Club USA and purportedly makes slanderous, defamatory statements… well really if he truly wrote these statements, they are bold face lies about the MLM Attorney Kevin Thompson.

I will cover each real quick for those who don’t like to read.

1. He alludes to the fact Kevin Thompson holds a secret position in BidiFy as a distributor.Bold Face LIE! If Robert truly made the statement, then Robert provide the documented evidence that Kevin Thompson directly or indirectly holds a distributors position in BidiFy.

2. Kevin Thompson offered his a piece of the action to send former Zeek Rewards affiliates to his firm. – Bold Face LIE!

The true (you can read the full thread below.)

“I own and along with being a Zeek Affiliate with over 2,000 people in my downline I also provided customers to affiliates for their Zeekler Penny auction. I noticed you represent Bidify and wanted to know if there was an opportunity to speak with you reguarding simular services I provided for Zeek but was unable to ramp up fully due to the closing. I was working closely with Greg Caldwell, and others at Zeek.

Robert Craddock”

Follow-up email from Craddock

On Aug 20, 2012, at 7:03 PM, robert craddock wrote:

Kevin if I could direct a lot of Zeek people to signup with your firm what would be in it for me?


Response from Thompson:

“We’re not asking for people to signup with our firm. We’ve asked for people to sign-up for a mailing list. We’re providing the information for free, Robert. There’s nothing to share.

Thompson Burton PLLC
Redefining the Art of Law.

Kevin Thompson
Phone: (615) 412-9876

3. Kevin Thompson is not a licensed attorney in the state of Tennessee, Robert Craddock checked.Bold face LIE!

Here are the facts:

The Board of Professional Responsibility - Tennessee Supreme Court

Kevin Prescot Thompson - The MLM Attorney

Feel free to click on either image above and verify the information personally!!!

Now this raises a age old question… If someone will lie (and yes this is a purported lie, due to the fact I can’t provide the email headers from the original thread) about one issue, then what else will that person lie about.

Seth Godin is quoted as saying “All Marketers Are Liers”, and I have strongly disagreed with that statement. But, if it does hold a shred of truth for some folks in marketing, then God help us all!

Email thread as I received them this morning.

“From: Scott [] (Name and Email edited by Troy Dooly for privacy of the sender)
Sent: Wednesday, November 14, 2012 10:28 PM
To: ‘Robert Craddock’
Cc: (Email edited by Troy Dooly for privacy of the receiver)
Subject: Attorney Kevin Thompson called me

November 15, 2012

The following is a response to an email I received.

Scott the attorneys are not going to contact Kevin Thompson, Kevin is working for Bidify if you did not know this. Troy does and this is kind of funny that Troy is also behind this.

When we started and com Kevin contacted me and wanted to get access to the database, he offered to pay me for the data and place people below me in the program so I would benefit financially, I told him he was a scum ball, and question if he really was an attorney, and my opinion stills stands. All I can say that I contacted the Tennessee Bar association and they did not have a record of him. Feel free to do the same.

Kevin is trying to get your information and a conference call will allow him to capture your information to pitch you on a different penny auction

I’m here to tell you the experts in this type of law all agree that Zeek did not sell any investment or security, it was not a Ponzi. Yes Kenneth Bell is calling it and that is why we have a legal process to go through. Please understand that Troy and Kevin have an agenda and, their past action do not appear to be to the benefit of this group.


I wrote to Kevin Thompson asking for an official response to these allocations. I received the following information.

Craddock’s message is a complete lie. Read the thread below and call me ASAP. Craddock CONTACTED ME and I never, ever, ever offered to give him anything. I have never solicited ANYONE for Bidify. Ridiculous.

Thompson Burton PLLC
Redefining the Art of Law.

Kevin Thompson
Phone: (615) 412-9876

**Please refer to our email disclaimer page for important disclosures regarding this electronic communication.

Begin forwarded message:

———- Forwarded message ———-
From: LEADS – MLM Attorney
Date: Mon, Aug 20, 2012 at 7:38 AM
Subject: New submission from Contact Kevin Thompson

Robert Craddock

Do I have permission to email you occasional updates about the industry?

Description of what you need
I own and along with being a Zeek Affiliate with over 2,000 people in my downline I also provided customers to affiliates for their Zeekler Penny auction. I noticed you represent Bidify and wanted to know if there was an opportunity to speak with you reguarding simular services I provided for Zeek but was unable to ramp up fully due to the closing. I was working closely with Greg Caldwell, and others at Zeek.

Robert Craddock

Thomspon Response

From: Kevin Thompson
Subject: Fwd: Zeek Recovery Plan
Date: November 15, 2012 9:45:48 AM CST
To: Don Ryan


Thanks for sharing Craddock’s message. It’s a complete lie, start to finish. I never, not once, offered him ANYTHING. He called me asking for an introduction to Bidify. I declined, informed him that it was not my place. When he said he was an internet marketer, I told him he should help promote the Zeek Recovery site to get the word out there. He sent me the below email basically asking “what’s in it for me?” Read my response. I never offered him a single thing. He’s dangerous. As for my record with the Bar, find me here: Find me under BPR # 024755.

Thompson Burton PLLC
Redefining the Art of Law.

Kevin Thompson
Phone: (615) 412-9876

**Please refer to our email disclaimer page for important disclosures regarding this electronic communication.

Begin forwarded message:

From: Kevin Thompson []
Sent: Monday, August 20, 2012 2:19 PM
Subject: Zeek Recovery Plan

You are receiving this message because you opted in to receive blog updates via email on

Aug 19, 2012


It’s been a busy few days in the MLM industry, to say the least. We recently had one of the fastest growing companies in MLM history, Zeek Rewards, come crashing down after being shut down as a ponzi scheme by the SEC. On my site, I summarized the SEC’s action and wrote about the implications for the MLM industry in general. The article can be found here. After writing the article, I was literally flooded with hundreds of messages from people that were affected by this disaster. The stories were remarkable. People left their jobs, cashed in on their retirements and drained their savings in an effort to maximize their earnings with Zeek.

The funds in Zeek Rewards have been voluntarily placed with a court appointed receiver. Zeek is not contesting the allegations in the SEC’s complaint. The receiver is now obligated to take stock of the assets and distribute funds back to the investors. Given the volume of victims, it’s going to be a very long process, in our opinion. Due to the volume of investors in Zeek, which is projected to be close to one million, we’re not sure how the receiver is going to effectively communicate with the class of investors. In an article on, the author put it into perspective when he wrote:

“While investor losses pale in comparison to those experienced by Madoff or Stanford investors, the sheer number of Zeek investors is on a magnitude that has never been dealt with before in a receivership or bankruptcy context. To illustrate, assuming Zeek had one million investors, a simple 1-page summary for each investor summarizing contributions and withdrawals, stacked together, would be 101.3 meters high, or roughly 300 feet. The staggering number of victims suggests that investigation of the fraud and establishment of a distribution process will likely be a drawn-out process involving hundreds, if not thousands, of people.”
Given my expertise in dealing with MLM law, and my partner’s experience with receiverships, our firm is uniquely positioned to communicate with the receiver on behalf of Zeek victims. Instead of getting lost in the stack, we can build numbers and collectively get a seat at the table.

If you invested in the Zeek program, please fill out the form below. If the form is not showing up in your inbox, please click here. There are no obligations after filling out the form. We’ll be publishing an action plan on Friday.

Sent to — why did I get this?
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The Law Office of Kevin Thompson • 265 Stanley Park Lane • Franklin, Tennessee 37069

Cradock Response

On Aug 20, 2012, at 7:03 PM, robert craddockwrote:

Kevin if I could direct a lot of Zeek people to signup with your firm what would be in it for me?


Thompson Response

From: Kevin Thompson
Subject: Re: Zeek Recovery Plan
Date: August 25, 2012 8:56:07 PM CDT
To: robert craddock

We’re not asking for people to signup with our firm. We’ve asked for people to sign-up for a mailing list. We’re providing the information for free, Robert. There’s nothing to share.

Thompson Burton PLLC
Redefining the Art of Law.

Kevin Thompson
Phone: (615) 412-9876

**Please refer to our email disclaimer page for important disclosures regarding this electronic communication.


MLM Legal Alert: South Africa Traffic Exchange Company Just Been Paid Does Not Seem To Be Legal To Operate Anywhere In North America

Big Booster the parent company of Just Been Paid has not take the necessary steps to establish legal entities in Canada or the USA to transact business. This is a HUGE Red Flag, and could cause the top North American promoters of Just Been Paid legal and financial issues if regulators decide to investigate and classify the program as a financial pozi scheme.

Patrick Preddy one of the world’s leading ponzi scheme investigators has brought on some serious issues with Just Been Paid, and Frederick Mann the purported founder. Although Patrick and I do not always agree on some companies, I have found him to be a fair and balanced reporter.

** [UNCONFIRMED] ** ‘JustBeenPaid’ Experiencing DDoS Attack ** [UNCONFIRMED] **

What I found in the above article to be a real concern is the following information:

“In a March 15 conference call, Frederick Mann, JSS/JBP’s purported operator, told members from the United States and Canada that JSS/JBP is paying them with money sent in by “new members.” Using “new” money to pay “old” members is the central element of a Ponzi scheme — although Mann did not use the phrase.

The Italian securities regulator CONSOB announced a JSS/JBP-related probe on Jan. 23.”

Now add to the above, the fact that there does not seem to be any legal entity or agent or record to represent Just Been Paid or the parent company Big Booster in Canada or the USA, this leaves the promoters and affiliates in North America open for huge legal and financial issues.

Here are some additional articles Patrick Pretty has written on Just Been Paid and some of those promoting the scheme.

Day After SEC Announces Judgments Totaling $4.2 Million Against Serial HYIP Pitchman, Another Serial Pitchman — ‘Ken Russo’ — Makes ‘I Got Paid’ Post On TalkGold For JSS Tripler/JustBeenPaid; Separately, McAfee’s ‘Site Advisor’ Declares JBP Pages ‘Dangerous’

STATUS QUO CHANGE IN ‘PROGRAM’? Conference-Call Recordings Of ‘Carl Pearson’ Go Missing From JSS Tripler/JustBeenPaid Website; Development Explained Away As Response To Potential ‘Hackers’ — Although Frederick Mann Recordings Remain

[EYE-OPENING EXERCISE]: A Modest ‘HYIP’ — But One That Provides A Learning Experience Juxtaposed Against JSS Tripler/JustBeenPaid: Compare Pitches Of ‘Blue Hedge Investments’ And JSS/JBP

SPECIAL REPORT: Hollow Claim: Caller Brings Up AdSurfDaily Ponzi Prosecution In JSS Tripler/JustBeenPaid Conference Call; Frederick Mann Tells Affiliates Operating In United States That ‘We Don’t Have An Office In The U.S.’

Some of the other issues come from the companies own websites.

When you review the above image where Just Been Paid explains how their scheme works, you can see it is built upon 100% internal consumption. Now although the experts worldwide can’t figure out how much external sales is needed to make a company legal as a network marketing opportunity. What we do know based on the Burn Lounge case is 3% is too low! Which means Just Been Paid will not pass any legal definition as a network marketing opportunity in the USA.

Until the leadership of this company is willing to clean their act up and do whats right for their affiliates worldwide, I strongly warn North American citizens to NOT get involved.

Zeek Rewards And Their Affiliates Seem To Have Been Hit By International Cyber Crime Gangs & Bloggers With Possible Hidden Agendas

Over the last few weeks I have been researching some of the blog reports from around the country, and comments written by Zeek Reward affiliates. What I have been able to narrow down is what seems to be an attack from Cyber Crime Gangs operating out of at least six counties known as honey-pots for credit card fraud.

However, some bloggers seem to have decided to exploit the situation which could cause harm to Zeek affiliates. I wonder if some of these bloggers have a hidden agenda or may be working for a Zeek competitor. In any case, if this can happen to Zeek Rewards, and Zeekler, then it can happen to any reverse penny auction company in business today.

Oz, over at Behind MLM has been the hardest on Zeek Rewards over the last few months, putting up articles which at first glance would lead the readers to wonder if Zeek Rewards is the one perpetrating the fraud. This type of blogging in my opinion is for sensationalism only, and doesn’t provide solid facts or solutions to affiliates or potential affiliates looking into the Zeek Rewards business model.

I do want to be very clear, I think Oz is a fantastic blogger, who the majority of the time provides rock solid reviews and information. I personally review everything he writes even when it doesn’t have anything to do with the U.S.A., but the last few articles written on Zeek, in my opinion fall below the quality I have seen come from him.

In the latest article he titled it “Zeek Rewards banning members due to politics?” Now without a doubt he added the “?” at the end of the title, yet when reading his article it is clear he is leading his readers to assume Zeek Rewards banded certain countries because of politically differences. This is totally FALSE!

Although I have never met Paul Burke, I can say that in researching his past, he is a strong believer in the U.S. Constitution, giving people the freedom to voice their position to any political disciple. Even though he seems to be very patriotic, he is also seems to be a firm believer in the spread of capitalism worldwide.

I have met Dawn Wright-Olivares and Alex de Brantes personally. In interviewing them, and in researching their pasts one can come to the solid conclusion, they do not believe in censoring anyone’s Right to Expression, be it in politics, or anything else.

As I read Oz’s editorial, I was able to quickly realize what seems to be happening. (I have an extensive background in fighting cyber-crimes at all levels)

Understanding that the average person may not realize the magnitude of the rise of international organized crime organization and the countries they operate out of I figure now is as good as any to give some additional information. It doesn’t matter whether you are in Zeek Rewards, BidiFy, Co2 Rewards, DubLi Network or any other online international auction, mall or gaming site, you may be at risk as well as the company.

In the case of Zeek Rewards, they seem to be taking proactive measures to STOP the fraud and to protect both their reputation, and the financial security of their affiliates. We all know they have publicly made it clear, these cyber-crime credit card fraud rings, have hit them in the last few months, and each time, these cyber-terrorists attack, Zeek Rewards, tightens their security net.

I have already suggested to Zeek Rewards, that they partner with some of the following organizations to help bring these cyber-crime organizations to justice.

FBI Cyber-Crime Unit
U.S. Secret Service Electronic Crimes Task Force – The majority of the top ten most wanted are cyber-criminals.

I have no clue if Zeek Rewards will make it on their own as a viable business model. But I do know they deserve the same chance as any other business. I may not fully understand the business model, and even when I do, my professional opinion may still question its viability. But, I do believe the people who have become affiliates deserve to know the facts, not propaganda, so they can decide if the risk is worth the rewards.

I am going to provide some links, images and videos to show that the credit card fraud Zeek Rewards has experienced is not isolated to their business model. But, it is something that all Zeek Reward affiliates need to be aware of, and must help the company fight against. I’ve seen first hand the financial devastation people go through, when these international cyber gangs steal hundreds of thousands of dollars from unsuspecting people.

Now, some of you may want to use this article to show that Zeek has security issues. Well before you start counting all the raiding you can do of Zeek affiliates to your company, you may want to watch this video. Your company may be next!

Oz, in his editorial listed the following six countries as countries Zeek Reward’s has closed off from access to their system:


Each of the above countries link to information on the activity of cyber crime in their respective countries.

I have also heard that some affiliates are concern because they have not received their commission’s. If commissions have been held, I can state with confidence, it is because the company is weeding through some of the outside fraud that has occurred to determine how much is going back in chargebacks to the merchants. If I were an affiliate, I would rather wait on my net commissions, than to get a chargeback myself down the road.

Below I will show a couple of examples of how Organized cyber Crime Organizations work.

I will be going to Zeek Rewards later this month to talk with the founders and executives of the company. When I return, I will share what I learn.