Advertising, Marketing and Digital Media

Overview

"The firm has a strong team and many experienced lawyers who take pride in what they do. They are very responsive."

– Chambers USA 2022

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.
More »

Professionals

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

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

  • Selected as a 2020-2021 “Pacesetter” in Cybersecurity Services by ALM Intelligence Pacesetter Research
  • BTI Powerhouse for Cybersecurity Litigation (2022)
  • BTI Cybersecurity Powerhouse (2020)
  • BTI CyberSavvy Law Firm (2020)
  • Chambers Global
    • Privacy & Data Security: The Elite (USA) (2022)
    • Privacy & Data Security (USA) (2014 to 2021)
    • Privacy & Data Security: Healthcare Spotlight Table – Nationwide (2018 to 2022)
  • Chambers Fintech
    • Legal – USA (2018 to 2022)
  • Chambers USA
    • Advertising: NAD Proceedings – Nationwide (2022)
    • Advertising: Transactional & Regulatory – Nationwide (2018 to 2022)
    • Privacy & Data Security: The Elite – Nationwide (2021-2022)
    • Privacy & Data Security – Nationwide (2013 to 2020)
    • Privacy & Data Security: Healthcare Spotlight Table – Nationwide (2018 to 2022)
  • 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 2022)
    • Media, Technology and Telecoms: Cyber law (including data privacy and data protection) (2021-2022)
    • 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)
  • Selected for Vault’s Guide to Legal Practice Areas
    • Privacy and Data Security (2017 to 2021)

News

News

Press Releases

Publications

Alerts

Articles

Blog Posts

Key Contacts

Blog

In The Blogs

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AD-ttorneys Law Blog
The 13th Public Commission Meeting – an AI Study About Online Scams and, Yes, Another Policy Statement
By Daniel Kaufman, Amy Ralph Mudge
June 16, 2022
We spend many of our working hours – and far too many of our nonworking hours – talking about Federal Trade Commission (FTC or Commission) issues, and we can confidently state that no one has ever said to us, “I sure do wish the agency...
Read More ->
AD-ttorneys Law Blog
Pride Month and the Onslaught of Rainbow Corporate Logos
By Daniel Kaufman, Amy Ralph Mudge
June 3, 2022
Many of us have become accustomed to the fact that every June, with the calendar signaling LGBTQ+ pride month, we get the inevitable onslaught of corporate logos incorporating the colors of the rainbow flag. And at the end of June, the...
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AD-ttorneys Law Blog
If an Agency Calls Something Unfair, Does That Magically Make It Unlawful? A Recent Blog Post by the FTC's Chief Technology Officer
By Daniel Kaufman
May 31, 2022
Last week, the Federal Trade Commission’s (FTC) tech blog quietly published a post that could have broad implications – for privacy practitioners and beyond. In this post, the agency takes the novel position that if consumer data is...
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AD-ttorneys Law Blog
Testimonial Guides Update – The Things That Make Us Go Hmm
By Daniel Kaufman, Amy Ralph Mudge, Randal M. Shaheen
May 20, 2022
As we reported yesterday, the FTC has issued its proposal for an update to the Testimonial & Endorsement Guides. These are not THE LAW, because (1) guides are not law and (2) even if we treat them as such, this is a proposal. That said...
Read More ->
AD-ttorneys Law Blog
May 2022 Public Commission Meeting – Meet Commissioner Bedoya, Plus Blasts from the Past, Endorsements and an FTC Legend
By Daniel Kaufman, Amy Ralph Mudge
May 19, 2022
In February 2020, the Federal Trade Commission (FTC) announced that it was going to reexamine the Endorsements and Testimonial Guides (Guides) and sought comment on whether and how the Guides should be changed, including addressing issues...
Read More ->