Disclaimers out of the way ... Birch Group and American Bullion are at it again with yet another lawsuit aimed at suing Regal Assets out of business. You know what they say, "if you can't beat 'em, sue 'em out of existence." And that seems to be what Birch and American are trying to do to Regal.
Birch Gold Group v. Regal Assets Et Al
American Bullion v. Regal Assets Et Al
The lastest lawsuits however are important because they go to the very core of affiliate marketing: your ability to promote only the company you're an affiliate for. If you read the complaint that Birch and American are making against Regal ... they are making multiple assertions that affiliate marketing itself often constitutes unfair and fraudulent business practice. Birch and American are both asking for "disgorgement of profits" from the affiliates themselves. (basically asking the court to order affiliates to pay to Birch all past profits earned from promoting Regal)
My lawyer knows of several companies that are watching the lawsuit closely. If Birch and American win it is expected that there will be many more of these suits and it will dramatically alter the landscape for affiliate marketers.
My lawyer recommended the following to me (again, consult with your own lawyers for your specific situation):
1) Contact Regal and ask if you can donate to their legal defense. I know Regal has buckets of money; but Birch and American are trying to sue them out of business. We affiliate marketers can't allow that to happen or it will be done again to other affiliate program owners. If we can show that we will not allow companies to sue affiliate owners out of business, simply because they use affiliates to help sell their products we can stop this nonsense. I have contacted Regal about a legal defense fund and will post an update in this thread.
2) On your websites DO NOT say anything negative about any competing company unless it is very well referenced. It might be better still to just not say anything negative about anyone at all.
3) YOU MUST disclose that you are an affiliate of any company you are promoting. This is actually an FTC rule anyway. This disclosure can NOT be buried inside a TOS page or a disclaimer page. It should be a fairly prominent disclosure. One of Birch's arguments is that many people believed the affiliate sites to be "objective" and made purchasing decisions not knowing they were actually at a site with a financial incentive in the outcome.
Like I said, #3 above is an actual FTC rule anyway so you need to do that one no matter how the lawsuit itself comes out.
If you disclose that you're an affiliate, then not talking about another company won't be a problem. If you're going to say anything negative about another company (again, probably better not to) then it should be exceedingly well backed up with proof that can't be refuted.
One more time, I am not an affiliate of Regal. But I do think any of us that can afford it really need to contribute to Regal's defense as it has wide ranging implications for most if not every single member of the forum.