Advertising, Marketing and Digital Media

Overview

"The infrastructure organizationally is stellar. The legal advice and intuitive nature of making each client feel as if your challenges are the only work being produced at that moment is monumental. Having a lawyer that is available 24/7 calms every worry."

– Chambers USA 2020

Engaging consumers in a world of digital disruption has never been more challenging. To be successful, forward-thinking advertisers and marketers must combine creativity, adaptive technologies and the ability to connect with customers at critical moments. Our nationally recognized Advertising, Marketing and Digital Media team understands these imperatives and has the experience and insight to help clients navigate their most complex issues.

Our advisory, transactional, regulatory defense and litigation capabilities make us a one-stop shop for the myriad issues that surround campaigns across all media and paths to purchase.

We collaborate with colleagues across our Digital Assets and Data Management Group who work with clients across a broad spectrum of industries, including consumer products and services, retail, advertising and digital media, as they capture and leverage data to influence consumer decision-making, increase ROI and convert leads to sales.

Significant costs can be triggered by the failure to properly identify risks. We understand the importance of making the strategic risk/reward decisions that allow our clients to create and capitalize on opportunities, hone a market advantage, and survive or launch a competitive attack.

Market leaders rely on us for assistance with:

  • Cannabidiol (CBD) marketing.
  • Claim substantiation.
  • Competitive challenges before self-regulatory bodies.
  • Consumer class actions, including advertising, labeling and Telephone Consumer Protection Act claims.
  • Digital and social media marketing.
  • Esports and fantasy games.
  • Federal Trade Commission (FTC), Food and Drug Administration (FDA) and state attorneys general investigations.
  • Guild and union issues.
  • Marketing and sales practices.
  • Marketing to children.
  • Mobile marketing and text messaging.
  • Native advertising.
  • Nutraceuticals and dietary supplements.
  • Privacy and data protection.
  • Rights of privacy and publicity.
  • Social influencer campaigns.
  • Sponsorships.
  • Sweepstakes, contests and promotions.
  • Telemarketing.

Select Experience

National Advertising Division (NAD) challenges, federal and state regulatory investigations, consumer class actions, and Lanham Act litigation

  • Represented a leading social network in a landmark case brought by the FTC involving the application of the FTC’s Testimonial and Endorsement Guides to social influencer networks.
  • Handled the first and several following cases brought by the FTC against companies engaged in negative option marketing under the Restore Online Shoppers’ Confidence Act, which applies to all online transactions involving any type of free trial, automatic renewal or continuity shipment program.

Compliance counseling

  • Represented a leading ad tech company in connection with the creation of industrywide digital ad measurement standards and associated open-source measurement technology for a coalition of interested parties under the umbrella of a leading ad industry trade organization.
  • Advised a leading video game publisher in connection with the establishment of an esports tournament and related community-sponsored tournaments.

Transactional

  • Negotiated and documented the multimillion-dollar spokesperson and commercial engagement of an A-list movie star (and obtained a first-of-its-kind Screen Actors Guild pension, health and welfare cap term extension equal to the period of the airing hiatus) for a major international bank and advised on various related activation campaigns.
  • Structured and negotiated spokesperson and commercial deals with major talent for a national fitness club, a mobile phone carrier and others.
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Professionals

Name Title Office Email
Partner Atlanta
Partner Dallas
Partner Los Angeles
Associate Washington, D.C.
Partner New York
Partner Denver
Partner Washington, D.C.
Partner New York
Partner Washington, D.C.
Associate Chicago
Partner Philadelphia
Partner Washington, D.C.
Partner Washington, D.C.
Partner New York
Partner San Francisco

Experience

National Advertising Division (NAD) challenges, federal and state regulatory investigations, consumer class actions, and Lanham Act litigation

  • Represented a leading social network in a landmark case brought by the FTC involving the application of the FTC’s Testimonial and Endorsement Guides to social influencer networks.
  • Handled the first and several following cases brought by the FTC against companies engaged in negative option marketing under the Restore Online Shoppers’ Confidence Act, which applies to all online transactions involving any type of free trial, automatic renewal or continuity shipment program.
  • Represented a major telecommunications company in connection with an investigation by numerous state attorneys general that established industrywide standards for the marketing of wireless services.
  • Represented leading publishers in an investigation by numerous state attorneys general challenging the companies’ practices of automatically renewing subscriptions.
  • Represented major entertainment companies in an industrywide class action challenging a text message sweepstakes as violative of federal and state lottery laws.
  • Successfully challenged advertising by several competitors on behalf of a leading wireless carrier at the NAD, requiring the competitors to discontinue their entire national advertising campaigns.
  • Represented a leading lawn and garden products company in connection with a challenge to competitive advertising before the NAD.
  • Represented a leading online tax preparation service in a Lanham Act suit brought by a competing brick-and-mortar company.
  • Managed a large-scale, multidisciplinary team in Lanham Act litigation against numerous competitors of a leading client in the prepaid calling card industry.

Compliance counseling

  • Represented a leading ad tech company in connection with the creation of industrywide digital ad measurement standards and associated open-source measurement technology for a coalition of interested parties under the umbrella of a leading ad industry trade organization.
  • Advised a leading video game publisher in connection with the establishment of an esports tournament and related community-sponsored tournaments.
  • Counseled mobile and online publishers as well as advertising networks and exchanges regarding U.S., Canadian, EU and other international privacy and data protection issues (in cooperation with local counsel), including consumer tracking and ad targeting.
  • Counseled dozens of online and mobile services regarding compliance with the Children’s Online Privacy Protection Act and children’s advertising rules.
  • Represented major brands in multiple sponsorships of national pop music tours (including, on some, branded entertainment cable TV and/or webcast specials) and related activation (e.g., Miley Cyrus, Jonas Brothers, One Direction).
  • For a promotion marketing agency and its client, advised on the structure of an augmented reality mobile phone promotion conducted with a hotel chain.
  • Advised pharmaceutical, medical device and cosmetic companies on advertising claims that required the assessment of clinical trials.
  • Counseled clients on FDA and U.S. Department of Agriculture approvals for products directly or indirectly added to food and feed.
  • Helping several large consumer products companies prepare to launch CBD oil products.
  • Advised a consumer magazine and digital publisher’s native advertising unit on the development of best practices to ensure compliance with the FTC’s native advertising guidelines.

Transactional

  • Negotiated and documented the multimillion-dollar spokesperson and commercial engagement of an A-list movie star (and obtained a first-of-its-kind Screen Actors Guild pension, health and welfare cap term extension equal to the period of the airing hiatus) for a major international bank and advised on various related activation campaigns.
  • Structured and negotiated spokesperson and commercial deals with major talent for a national fitness club, a mobile phone carrier and others.
  • Negotiated lead NASCAR sponsorships for major brands and advised on related activation.
  • Negotiated A- and B-level above- and below-the-line talent deals for TV and film productions, as well as financing and distribution arrangements for those productions.
  • Structured agreements for an international beverage company to create a GPS app that helps customers find vendors selling certain beverages.

Recognition

  • BTI Cybersecurity Powerhouse (2020)
  • BTI CyberSavvy Law Firm (2020)
  • Chambers Global
    • Privacy & Data Security (USA) (2014 to 2021)
    • Privacy & Data Security: Healthcare Spotlight Table – Nationwide (2018 to 2021)
  • Chambers Fintech
    • Legal – USA (2018 to 2020)
  • Chambers USA
    • Advertising: Transactional & Regulatory – Nationwide (2018 to 2020)
    • Privacy & Data Security – Nationwide (2013 to 2020)
    • Privacy & Data Security: Healthcare Spotlight Table – Nationwide (2018 to 2020)
  • Chambers USA Award: “Privacy & Data Security Team of the Year” finalist (2015, 2017)
  • The Legal 500 United States
    • Media, Technology and Telecoms: Advertising and Marketing: Transactional and Regulatory (2018 to 2020)
    • Media, Technology and Telecoms: Cyber Law (2016 to 2020)
    • Media, Technology and Telecoms: Data Privacy and Data Protection (2016 to 2020)
  • Law360: Privacy "Practice Group of the Year" (2013 to 2015, 2018)

News

News

Press Releases

Publications

Alerts

Articles

Blog Posts

Key Contacts

Blog

In The Blogs

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AD-ttorneys Law Blog
Much Ado About Penalties
By Daniel Kaufman
November 8, 2021
So we have been writing quite a lot about the recent deluge of FTC Notice of Penalty Offense letters. And as we have told you, at their core, the letters are a vehicle that would potentially allow the agency to seek significant civil...
Read More ->
AD-ttorneys Law Blog
Less to the FTC's Notice of Penalty Offenses Than Meets the Eye?
By Amy Ralph Mudge, Randal M. Shaheen
November 2, 2021
The FTC’s Notice of Penalty Offenses concerning endorsements and testimonials is barely a week old and it’s likely already had its intended effect. Hundreds, if not more, of consumer products companies are taking a second or third look at...
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AD-ttorneys Law Blog
The Latest FTC Policy Statement Sets Its Sights on Negative Option Marketing
By Linda A. Goldstein, Daniel Kaufman, Randal M. Shaheen
October 29, 2021
Policy statements are neither rules nor notices of penalty offenses, but when the FTC issues a policy statement discussing an area that has been the subject of a lot of enforcement activity, it warrants serious attention, particularly when...
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AD-ttorneys Law Blog
A Synopsis by Any Other Name Is Still an Important Thing To Consider
By Daniel Kaufman
October 26, 2021
Whether you are old-school and call them Synopses or you use the new, more in-your-face term Notices of Penalty Offenses, the fact is that this tool has dramatically and quickly increased in significance under Chair Lina Khan’s Federal...
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AD-ttorneys Law Blog
Allow Me To Introduce Myself
By Daniel Kaufman
October 25, 2021
I’m a longtime consumer protection practitioner but a new blogger in a new role. Now, I am well aware that there are many talented folks out there writing about these issues, but I will try my best to make these entries worthwhile, concise...
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