Focusing his practice on all aspects of advertising and consumer protection law, Donnelly McDowell understands how to thread the needle between advancing his clients’ business and marketing objectives and addressing the concerns of regulators and plaintiffs’ attorneys who could impede their efforts.
In both his proactive compliance counseling and effective advocacy in contested matters, he minimizes risk, diffuses current and potential threats, and clears a path for his clients to pursue their goals.
Donnelly is particularly well-versed in several nuanced and specialized areas of consumer protection law, including consumer finance, food and drug law, and direct sales and network marketing compliance. He also has unique experience in many niche subject matters, including automatic renewal and negative option laws, consumer financial privacy, e-commerce transactions, rewards and loyalty programs, gift cards, and unclaimed property laws.
Donnelly’s clients span a range of industries, including retailers, restaurants, manufacturers and distributors of FDA-regulated products and other consumer goods, financial service providers, tech and fintech companies, and direct selling and affiliate marketing companies.
Clients appreciate the steady hand and thoughtful approach he brings to his counsel, providing them with options, direction, and creative solutions before and after issues or concerns arise.
Donnelly’s understanding of both substantive law and regulators’ approaches to investigating and pursuing alleged transgressions helps him successfully represent clients in contested matters, including regulatory inquiries and investigations by the FTC, the CFPB, and the FDA, as well as State AGs and district attorneys.
Donnelly also represents challengers and advertisers before the National Advertising Division (NAD) of the BBB National Programs and the National Advertising Review Board (NARB). His ability to frame and narrow the scope of investigations and define the issues in disputes has led to a long record of successful resolutions.
In his compliance counseling practice, Donnelly helps clients develop strategies to balance regulatory and litigation risk. For consumer-facing companies, he regularly advises clients on all aspects of the customer experience, from advertising to purchase to complaint handling. Working closely and collaboratively with in-house counsel, marketing teams, and other internal constituencies, Donnelly regularly conducts compliance audits to identify compliance gaps and solutions and assists his clients with due diligence assessments for potential acquisitions and investments. In addition, he spearheads policy initiatives, engaging with regulatory agencies in connection with rulemaking, guidance documents, and public meetings.
Representative Contested Matters
Represented a major direct seller in an 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 a settlement that permitted the company to continue to operate and the case was closed.
Represented and successfully negotiated a settlement for national retailer in an FTC investigation related to compliance with the Fair Credit Reporting Act (FCRA) and the FTC’s Red Flags Rule.
Represented and successfully negotiated a settlement for a home service provider in connection with attorney general investigation into electronic billing and contract formation practices.
Represented and successfully negotiated a settlement for a telecommunications provider in connection with attorney general investigation into billing practices.
Represented and successfully negotiated a settlement for a financial services company in connection with a CFPB investigation into compliance with the Dodd-Frank Act.
Successfully challenged price claims related to a national grocery store before the National Advertising Division (NAD).
Part of a team that successfully represented a cooperative association of 450 family-owned dairies, maker of the best selling brand of butter in the Western U.S., in a class action filed in the Los Angeles Superior Court, alleging that the labeling of certain of their dairy products were false and misleading in violation of the California Unfair Competition statutes, as well as the Consumer Legal Remedies Act. Judge dismissed the case with prejudice on federal preemption grounds.
Representative Regulatory Advice and Policy Work
Led a general compliance audit to assess financial services company’s marketing of third party add-on products in connection with mortgages and other financial products, including an analysis of billing disclosures and consumer financial privacy issues.
Led audits for multiple direct sellers and network marketers to assess compliance with FTC guidelines on earnings claims, product claims, and substantiating genuine retail demand.
Drafted comments and petitions on multiple FDA and FTC rulemakings and guidance documents, including proposed rule revisions to FDA regulations governing nutrition labeling.
Conducted multiple regulatory due diligences and drafted memoranda providing analysis and recommendations related to compliance with advertising and food and drug law issues.
Conducted a general compliance audit of a lead generator to assess client’s business practices, including related to telemarketing and the collection, use and sharing of consumer’s personal information.
Regularly provides day-to-day counseling on an array of general advertising and niche regulatory issues related to consumer financial protection, consumer financial privacy, gift cards, loyalty and rewards programs, and FDA-regulated products.
The Best Lawyers in America© “Ones to Watch” (Woodward/White, Inc.), Advertising Law, 2023.
Recommended in the U.S. Legal 500 for his work in the Marketing and Advertising Law – Transactional and Regulatory area, 2023
Recognized by Super Lawyers as a Washington D.C. “Rising Star,” 2018-2020.
American Bar Association, Section of Antitrust Law, Advertising Disputes and Litigation Committee, vice chair, 2016-2021.
American Bar Association, Section of Antitrust Law, Young Lawyer Representative Program, co-coordinator, 2014-2016.
Food & Drug Law Institute (FDLI), FDLI Enforcement, Litigation, and Compliance Conference Committee (2020-2021); Austern Writing Competition Committee, 2019-2020.