Advertising Counseling and Compliance
Advertising Counseling and Compliance
Our attorneys work exclusively in advertising, marketing, promotions and privacy law―all day, every day―providing our clients with across-the-board legal support for all of their advertising matters.

We’re highly respected and nationally ranked attorneys, with deep and ready knowledge of advertising law, courtroom-tested litigation skills, and a reputation for integrity and credibility earned through prior experience serving with, and working across the table from, the Federal Trade Commission (FTC) and other government agencies.

We help global brands and Fortune 500 companies that manufacture and sell products across a range of industries to navigate this dynamic and heavily regulated industry, ensuring that their marketing, advertising and promotions are both effective and compliant with federal and state laws and regulations, broadcast network and industry self-regulatory standards, and evolving best practices for traditional and new media marketing.

We review traditional and digital advertising and promotional materials for truth in advertising, claim substantiation, use of intellectual property, and compliance with consumer protection rules.  We work with companies to evaluate, substantiate, and, where necessary, modify their advertising claims, providing risk management guidance to minimize the potential for competitor, consumer or agency challenges, and achieve their competitive goals in the marketplace with legally compliant marketing campaigns of all types, across all platforms.  We counsel on regulatory and compliance issues involved with substantiating monadic and comparative claims, marketing to children, “green” marketing, “Made in USA” claims, product labeling, and other advertising, marketing and promotional practices.

The group has particular counseling and compliance capabilities in:

New Media Marketing

The convergence of new technologies and content provides clients with new media, messaging and social networking platforms, and greater opportunities to understand and engage with their target audiences―and with it the potential for greater legal and business risk.  We advise on multimedia marketing and advertising initiatives that require compliance with the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act and state anti-spam laws.  We counsel clients on effective strategies to navigate the evolving state and federal legal framework, self-regulatory guidelines and platform policies to take advantage of new media platforms, technologies and techniques to reach and expand their markets.  We work with clients on virtually every dimension of new media marketing―blogs, endorsements and viral marketing; sponsored and native advertising; social media advertising and consumer-generated content, contests and promotions; platform terms of service and use, and numerous other legal issues associated with developing media channels.

Advertising Transactions

As advertising campaigns grow more complex, they often require multiple parties to work toward a common goal.  Our team has extensive experience in helping clients to draft and negotiate the agreements that underlie these campaigns.  Whether you need an agreement with your advertising agency, a celebrity endorser, a sports team, an app developer, or any other entity that is helping you to promote your brand, our team has the experience to help.  Additionally, as advertising continues to embrace individual engagements and targeted online activations, our team seamlessly addresses the data-driven privacy and data security elements in these agreements.

Multi-Level and Direct Sales Marketing

We work with multi-level marketing and direct sales companies, helping them and their distributors achieve their business goals in compliance with applicable consumer protection laws.  In this area of increased regulatory scrutiny from the FTC and state attorneys general, we help clients to evaluate and implement meaningful compliance measures related to sales methods, compensation structures and claims practices.

Consumer Privacy and Data Collection

In today’s data-driven marketing world, our attorneys work at the intersection of privacy and advertising law, counseling clients on compliance with the overlapping state, federal and international laws, regulations and standards developed to address the privacy and data security concerns associated with the use of new technologies to market to and engage with consumers.  We advise on the collection, use and protection of consumer data; develop and review privacy policies and practices; perform comprehensive compliance reviews of marketing and consumer-contact policies and practices, ranging from telemarketing compliance assessments, to privacy and data security-by-design gap analyses; and we help clients to identify and address potential “red flags” to mitigate their exposure of becoming a future regulatory or litigation target.

New Media Marketing

  • Assisted various clients with contests involving consumer-generated content, including contests where consumers were invited to create commercials, develop software, and even design sneakers. We drafted rules for the promotions, helped protect our clients from problematic content, and secured rights to the winning submissions.

  • Assisted various clients in designing sweepstakes that allow consumers to enter by sending text messages via their mobile phones. We helped these clients structure the promotions in such a way as to avoid the lawsuits that have recently plagued other companies that have offered text-to-win sweepstakes.

  • Advised clients on the risks associated with allowing consumers to post content on the clients' sites and drafted terms of service designed to protect the clients from the potential liability associated with content posted by consumers.

  • Advised clients on the risks associated with employee blogs and helped clients develop internal policies addressing blogging by employees in order to minimize legal exposure to the company.

  • Counseled several clients, including a Fortune 500 athletic apparel company, a national wireless telecommunications carrier, and a children’s retailer on issues in product design and services that involve online/wireless gaming and social media components.

  • Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.

Advertising Transactions

  • Assisted a Fortune 100 retailer in drafting and negotiating a comprehensive media advertising agency of record agreement for one of the top media spenders in the United States.

  • Assisted a Fortune 100 automotive company in drafting and negotiating comprehensive global creative and media advertising agency of record agreements.

  • Assisted a leading travel company in drafting and negotiating creative and media advertising agency of record agreements covering the United States, Central and South America, and Southeast Asia.

  • Helped numerous companies in drafting and negotiating agreements for the development and licensing of advertising technology services, including content and software development, CRM platforms, data analytics, interest-based advertising, and multi-platform and device tracking.

  • Helped various companies in drafting and negotiating sponsorship agreements with sports teams, music venues, festivals, and other major events.

  • Drafted and negotiated talent agreements with actors, athletes, musicians, and other celebrities.

  • Assisted various companies in preparing influencer agreements for a variety of campaigns in social media.

  • Assisted numerous major retailers in negotiating agreements for the development of mobile applications.

  • Worked on agreements covering a broad range of promotions, including sweepstakes, contests, and other incentives.

Multi-level and direct sales marketing.

  • Represented major direct seller in investigation and negotiations with the FTC arising out of alleged unfair and deceptive acts concerning its multi-level marketing program and how it represented its business opportunity. Successfully negotiated settlement that permitted the company to continue to operate and the case was closed.

  • Conducted compliance audit of multi-level marketing company to evaluate consumer protection risks, including those related to product and income claims and disclosures, marketing plan incentives, and distributor oversight.

  • Regularly counsel direct sales companies with regard to multi-level marketing and consumer protection compliance.

  • Represent multi-level marketing companies in regulatory investigations and contested matters.

  • Represented multi-level marketer during FTC Part 2 investigation of its practices.  Investigation was successfully closed despite complaint recommendation by FTC staff.

 Consumer Privacy and Data Collection

  • Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.

  • Represented a diversified mass media company on children’s privacy issues and submitted comments on behalf of the client in response to the FTC’s proposed revisions to the Children’s Online Privacy Protection Rule.

  • Provided privacy policy training and counseling necessary for a multinational electronics corporation to facilitate the launch of a VoIP product.

  • Represent a group of prominent doctors who own and run a teleradiology business in a dispute with a major university, alleging invasion of privacy, interference with a contract and interference with prospective business advantage. Additional allegations include misappropriation of trade secrets and unfair competition in violation of § 17200.

  • Assisted a major retailer with a gap analysis for privacy compliance. This involved dividing the business units into discreet parts with similar privacy compliance issues. Our analysis then cataloged every applicable privacy law in the United States (federal and state) in the form of easy-to-follow questions for the business units to answer, which allowed the legal department to identify compliance gaps and most efficiently focus resources on those areas that needed it most.

  • Represented a financial institution in an investigation by the FTC concerning an information security breach the business incurred, and whether the company's business practices complied with Section 5 of the FTC Act, the Gramm-Leach-Bliley Act (GLBA), the GLBA Safeguards Rule and the GLBA Privacy Rule. The case resolved with a settlement that included relatively narrow injunctive relief (compared to other similar FTC settlements), and no monetary damages or penalties.

  • Counseled a Fortune 50 computer and technology company on global privacy and data security compliance, including assisting on compliance with the various U.S. state developments, enforcement trends and strategies for managing vendor relationships worldwide. Our work included drafting appropriate contractual language and developing and counseling on oversight and monitoring procedures for a company that maintains a very large and diverse set of vendors that raise varied data security compliance issues in the European Union and Asian countries in which they do business.

  • Worked with an international retailer to review and certify its data practices under the Safe Harbor program to permit it to lawfully transfer its European Union employee and customer data to the United States.

  • Assisted a major consumer electronics retailer in connection with implementing a behavioral advertising initiative.

  • Regularly advise a Fortune 1000 clothing retailer on privacy and data security matters, including working closely with the company in designing a tailored privacy and data security compliance program that meets federal and state regulatory requirements.

  • Provide comprehensive privacy and data security advice for a major online retailer. This includes advising on compliance with the Children's Online Privacy Protection Act, CAN-SPAM, and relevant FTC and state consumer protection, privacy, and data security laws.

  • Counseled a Fortune 500 clothing manufacturer on enterprise-wide data security compliance. This included strategies for data protection compliance, legal policies, managing vendor relationships, negotiating privacy and data security terms in vendor contracts and exercising privacy and due diligence in the company's acquisition of new businesses, data assets and service providers.

  • Counseled numerous clients - retailers, financial service entities, and telecommunications providers - on appropriate responses to a data breach event in accordance with legal obligations and business risks.

 
 

Overview

Our attorneys work exclusively in advertising, marketing, promotions and privacy law―all day, every day―providing our clients with across-the-board legal support for all of their advertising matters.

We’re highly respected and nationally ranked attorneys, with deep and ready knowledge of advertising law, courtroom-tested litigation skills, and a reputation for integrity and credibility earned through prior experience serving with, and working across the table from, the Federal Trade Commission (FTC) and other government agencies.

We help global brands and Fortune 500 companies that manufacture and sell products across a range of industries to navigate this dynamic and heavily regulated industry, ensuring that their marketing, advertising and promotions are both effective and compliant with federal and state laws and regulations, broadcast network and industry self-regulatory standards, and evolving best practices for traditional and new media marketing.

We review traditional and digital advertising and promotional materials for truth in advertising, claim substantiation, use of intellectual property, and compliance with consumer protection rules.  We work with companies to evaluate, substantiate, and, where necessary, modify their advertising claims, providing risk management guidance to minimize the potential for competitor, consumer or agency challenges, and achieve their competitive goals in the marketplace with legally compliant marketing campaigns of all types, across all platforms.  We counsel on regulatory and compliance issues involved with substantiating monadic and comparative claims, marketing to children, “green” marketing, “Made in USA” claims, product labeling, and other advertising, marketing and promotional practices.

The group has particular counseling and compliance capabilities in:

New Media Marketing

The convergence of new technologies and content provides clients with new media, messaging and social networking platforms, and greater opportunities to understand and engage with their target audiences―and with it the potential for greater legal and business risk.  We advise on multimedia marketing and advertising initiatives that require compliance with the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act and state anti-spam laws.  We counsel clients on effective strategies to navigate the evolving state and federal legal framework, self-regulatory guidelines and platform policies to take advantage of new media platforms, technologies and techniques to reach and expand their markets.  We work with clients on virtually every dimension of new media marketing―blogs, endorsements and viral marketing; sponsored and native advertising; social media advertising and consumer-generated content, contests and promotions; platform terms of service and use, and numerous other legal issues associated with developing media channels.

Advertising Transactions

As advertising campaigns grow more complex, they often require multiple parties to work toward a common goal.  Our team has extensive experience in helping clients to draft and negotiate the agreements that underlie these campaigns.  Whether you need an agreement with your advertising agency, a celebrity endorser, a sports team, an app developer, or any other entity that is helping you to promote your brand, our team has the experience to help.  Additionally, as advertising continues to embrace individual engagements and targeted online activations, our team seamlessly addresses the data-driven privacy and data security elements in these agreements.

Multi-Level and Direct Sales Marketing

We work with multi-level marketing and direct sales companies, helping them and their distributors achieve their business goals in compliance with applicable consumer protection laws.  In this area of increased regulatory scrutiny from the FTC and state attorneys general, we help clients to evaluate and implement meaningful compliance measures related to sales methods, compensation structures and claims practices.

Consumer Privacy and Data Collection

In today’s data-driven marketing world, our attorneys work at the intersection of privacy and advertising law, counseling clients on compliance with the overlapping state, federal and international laws, regulations and standards developed to address the privacy and data security concerns associated with the use of new technologies to market to and engage with consumers.  We advise on the collection, use and protection of consumer data; develop and review privacy policies and practices; perform comprehensive compliance reviews of marketing and consumer-contact policies and practices, ranging from telemarketing compliance assessments, to privacy and data security-by-design gap analyses; and we help clients to identify and address potential “red flags” to mitigate their exposure of becoming a future regulatory or litigation target.

Experience

New Media Marketing

  • Assisted various clients with contests involving consumer-generated content, including contests where consumers were invited to create commercials, develop software, and even design sneakers. We drafted rules for the promotions, helped protect our clients from problematic content, and secured rights to the winning submissions.

  • Assisted various clients in designing sweepstakes that allow consumers to enter by sending text messages via their mobile phones. We helped these clients structure the promotions in such a way as to avoid the lawsuits that have recently plagued other companies that have offered text-to-win sweepstakes.

  • Advised clients on the risks associated with allowing consumers to post content on the clients' sites and drafted terms of service designed to protect the clients from the potential liability associated with content posted by consumers.

  • Advised clients on the risks associated with employee blogs and helped clients develop internal policies addressing blogging by employees in order to minimize legal exposure to the company.

  • Counseled several clients, including a Fortune 500 athletic apparel company, a national wireless telecommunications carrier, and a children’s retailer on issues in product design and services that involve online/wireless gaming and social media components.

  • Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.

Advertising Transactions

  • Assisted a Fortune 100 retailer in drafting and negotiating a comprehensive media advertising agency of record agreement for one of the top media spenders in the United States.

  • Assisted a Fortune 100 automotive company in drafting and negotiating comprehensive global creative and media advertising agency of record agreements.

  • Assisted a leading travel company in drafting and negotiating creative and media advertising agency of record agreements covering the United States, Central and South America, and Southeast Asia.

  • Helped numerous companies in drafting and negotiating agreements for the development and licensing of advertising technology services, including content and software development, CRM platforms, data analytics, interest-based advertising, and multi-platform and device tracking.

  • Helped various companies in drafting and negotiating sponsorship agreements with sports teams, music venues, festivals, and other major events.

  • Drafted and negotiated talent agreements with actors, athletes, musicians, and other celebrities.

  • Assisted various companies in preparing influencer agreements for a variety of campaigns in social media.

  • Assisted numerous major retailers in negotiating agreements for the development of mobile applications.

  • Worked on agreements covering a broad range of promotions, including sweepstakes, contests, and other incentives.

Multi-level and direct sales marketing.

  • Represented major direct seller in investigation and negotiations with the FTC arising out of alleged unfair and deceptive acts concerning its multi-level marketing program and how it represented its business opportunity. Successfully negotiated settlement that permitted the company to continue to operate and the case was closed.

  • Conducted compliance audit of multi-level marketing company to evaluate consumer protection risks, including those related to product and income claims and disclosures, marketing plan incentives, and distributor oversight.

  • Regularly counsel direct sales companies with regard to multi-level marketing and consumer protection compliance.

  • Represent multi-level marketing companies in regulatory investigations and contested matters.

  • Represented multi-level marketer during FTC Part 2 investigation of its practices.  Investigation was successfully closed despite complaint recommendation by FTC staff.

 Consumer Privacy and Data Collection

  • Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.

  • Represented a diversified mass media company on children’s privacy issues and submitted comments on behalf of the client in response to the FTC’s proposed revisions to the Children’s Online Privacy Protection Rule.

  • Provided privacy policy training and counseling necessary for a multinational electronics corporation to facilitate the launch of a VoIP product.

  • Represent a group of prominent doctors who own and run a teleradiology business in a dispute with a major university, alleging invasion of privacy, interference with a contract and interference with prospective business advantage. Additional allegations include misappropriation of trade secrets and unfair competition in violation of § 17200.

  • Assisted a major retailer with a gap analysis for privacy compliance. This involved dividing the business units into discreet parts with similar privacy compliance issues. Our analysis then cataloged every applicable privacy law in the United States (federal and state) in the form of easy-to-follow questions for the business units to answer, which allowed the legal department to identify compliance gaps and most efficiently focus resources on those areas that needed it most.

  • Represented a financial institution in an investigation by the FTC concerning an information security breach the business incurred, and whether the company's business practices complied with Section 5 of the FTC Act, the Gramm-Leach-Bliley Act (GLBA), the GLBA Safeguards Rule and the GLBA Privacy Rule. The case resolved with a settlement that included relatively narrow injunctive relief (compared to other similar FTC settlements), and no monetary damages or penalties.

  • Counseled a Fortune 50 computer and technology company on global privacy and data security compliance, including assisting on compliance with the various U.S. state developments, enforcement trends and strategies for managing vendor relationships worldwide. Our work included drafting appropriate contractual language and developing and counseling on oversight and monitoring procedures for a company that maintains a very large and diverse set of vendors that raise varied data security compliance issues in the European Union and Asian countries in which they do business.

  • Worked with an international retailer to review and certify its data practices under the Safe Harbor program to permit it to lawfully transfer its European Union employee and customer data to the United States.

  • Assisted a major consumer electronics retailer in connection with implementing a behavioral advertising initiative.

  • Regularly advise a Fortune 1000 clothing retailer on privacy and data security matters, including working closely with the company in designing a tailored privacy and data security compliance program that meets federal and state regulatory requirements.

  • Provide comprehensive privacy and data security advice for a major online retailer. This includes advising on compliance with the Children's Online Privacy Protection Act, CAN-SPAM, and relevant FTC and state consumer protection, privacy, and data security laws.

  • Counseled a Fortune 500 clothing manufacturer on enterprise-wide data security compliance. This included strategies for data protection compliance, legal policies, managing vendor relationships, negotiating privacy and data security terms in vendor contracts and exercising privacy and due diligence in the company's acquisition of new businesses, data assets and service providers.

  • Counseled numerous clients - retailers, financial service entities, and telecommunications providers - on appropriate responses to a data breach event in accordance with legal obligations and business risks.

Partner
Email (202) 342-8633(202) 342-8633
Christie Grymes Thompson chairs the firm’s Advertising and Marketing and Consumer Product Safety practice groups.  Named the 2016 Washington, D.C. advertising “Lawyer of the Year&...
Partner
Email (310) 712-6125(310) 712-6125
Lee Brenner serves as chair of the firm’s nationwide Media and Entertainment practice group.  Lee is dedicated to getting the result his clients want, and focuses on creativity when it ...
Partner
Email (212) 808-7528(212) 808-7528
August Horvath is a false-advertising and antitrust lawyer.  Clients most appreciate August’s levelheadedness, even under the most contentious of situations.  He is consistently va...
Partner
Email (202) 342-8603(202) 342-8603
Alysa Hutnik delivers comprehensive expertise in all areas of privacy, data security and advertising law.  Her experience ranges from counseling to defending clients in FTC and state attorney...
Partner
Email (212) 808-5145(212) 808-5145
Jeff Jacobson defends consumer, privacy and securities class actions, and represents media, technology and other companies in general commercial litigation. With nearly two decades in private prac...
Partner
Email (202) 342-8811(202) 342-8811
Bill MacLeod chairs the firm’s Antitrust and Competition practice group.  Also the Chair of the Antitrust Section of the American Bar Association, Bill is a former bureau director at th...
Partner
Email (202) 342-8576(202) 342-8576
Gonzalo Mon’s practice is focused on marketing and advertising law.  He advises a wide range of companies in all aspects of promoting their brands, and works closely with them to find p...
Partner
Email (202) 342-8582(202) 342-8582
Sarah Roller, J.D., R.D., M.P.H., is a partner in the firm’s Washington, D.C. office and chair of the Food and Drug Law practice.  She focuses her practice on the representation of U.S....
Partner
Email (202) 342-8821(202) 342-8821
Lew Rose serves as managing partner of Kelley Drye, and is a member of the firm’s Executive Committee. Lew also served as managing partner of the Washington, D.C. office and past chair ...
Partner
Email (202) 342-8588(202) 342-8588
Dana Rosenfeld chairs the firm’s Privacy and Information Security practice.  A former assistant director of the Federal Trade Commission (FTC) Bureau of Consumer Protection and attorney...
Partner
Email (202) 342-8423(202) 342-8423
A member of the firm’s Executive Committee, John Villafranco provides litigation and counseling services, with a focus on advertising law matters and consumer protection. John is highly resp...
Partner
Email (202) 342-8805(202) 342-8805
Kristi Wolff’s practice focuses on food, drugs, dietary supplements, medical devices, personal care and consumer health products, as well as wearable technology and health privacy issues.&nb...
Of Counsel
Email (202) 342-8646 (202) 342-8646
Jodie Bernstein is of counsel in the firm’s Washington, D.C. office. She is widely respected among consumer groups, industry organizations and the private bar as one the country’s leadi...
Special Counsel
Email (202) 342-8537(202) 342-8537
Katie Bond provides regulatory counseling and litigation support in matters involving a variety of consumer products, including dietary supplements, foods, OTC drug products, cosmetics and sports e...
Special Counsel
Email (202) 719-6022(202) 719-6022
Jennifer Fried is special counsel in the firm’s Washington, D.C. office. Her practice focuses on advertising and consumer protection law. Jennifer, formerly the Assistant Director of the Nat...
Special Counsel
Email (202) 342-8429(202) 342-8429
Chris Loeffler has a transactional and regulatory practice focused on advertising, privacy, data security, licensing, sponsorships, e-commerce and other consumer protection issues.  He helps c...
Senior Associate
Email (202) 342-8466(202) 342-8466
Spencer Elg is an attorney in the firm’s Washington, D.C., office. A former litigation attorney for the Federal Trade Commission, Mr. Elg focuses his practice on helping clients navigate con...
Senior Associate
Email (202) 342-8461(202) 342-8461
Elisa Nemiroff is a senior associate in the firm's Washington, D.C. office. Her practice focuses on counseling clients regarding all elements of advertising and promoting their brands, product...
Senior Associate
Email (202) 342-8455(202) 342-8455
Katie Rogers is a senior associate in the firm’s Washington, DC office. Katie focuses her practice on general advertising and consumer protection matters, with an emphasis on food marke...
Senior Associate
Email (202) 342-8592(202) 342-8592
Sherrie Schiavetti is a Certified Information Privacy Professional for the United States (CIPP/US) by the International Association of Privacy Professionals (IAPP).  Her practice includes liti...
Senior Associate
Email (310) 712-6467 (310) 712-6467
Crystal Skelton is an associate in the firm’s Los Angeles office. Her practice includes representing a wide array of clients – from tech startups to established companies – in pr...
Associate
Email (202) 342-8534(202) 342-8534
Ilunga Kalala is an associate in the firm’s Washington, D.C. office. His practice focuses on advertising and marketing, privacy and information security, and other consumer protection law ma...
Associate
Email (202) 342-8645(202) 342-8645
Donnelly McDowell is an associate in the firm’s Washington, D.C. office. Donnelly’s practice focuses on advertising and marketing, food and drug law, consumer financial protection matt...
Associate
Email (202) 342-8557(202) 342-8557
Katie Townley is an associate in the firm’s Washington, D.C. office. Her practice focuses on advertising and marketing, privacy and information security, product safety, and other consumer p...