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We provide counseling and litigation services to direct marketing companies, telemarketing firms, Internet companies, and other advertising and media companies in all aspects of their business, including:
- Federal Trade Commission litigation
- Regulatory investigations by the FTC, state attorneys general, and other agencies
- Advertising, telemarketing, and infomercial compliance and clearance
- Trademark registration and compliance
- Sweepstakes, contests and promotions
- Internet commerce
- CAN-SPAM compliance
- Negotiating and drafting commercial agreements with vendors, suppliers, customers, and celebrity endorsers
- Rights of privacy and publicity
- Commercial litigation for direct marketing companies
FEDERAL TRADE COMMISSION LITIGATION
We aggressively defend advertisers and marketers against regulatory enforcement actions brought by the Federal Trade Commission, state attorneys general and other regulatory agencies against deceptive and misleading advertising claims in federal and state court.
Working closely with former longtime FTC counsel, we have an intimate understanding of the issues, and use our ability as seasoned commercial litigators to ensure that our clients receive the best possible defense in these high stakes actions, where the government often seeks preliminary relief in the form of a temporary restraining order, preliminary injunction, and asset freeze, and final relief in the form of a permanent injunction and consumer redress, which may ultimately subject a company to liability for its total gross sales to consumers less refunds. Under these dire circumstances, we have the proven ability to obtain favorable settlements on behalf of our clients, and successfully defend them.
Our experience includes:
- Defending one of the largest Internet merchants on the Web against a FTC action for allegedly fraudulent billing practices. When the representation began, the FTC already had obtained a Temporary Restraining Order seizing the assets of both the Company and its principals. Successfully obtained a court order allowing the owners to regain control of their business and assets; and within months, secured a highly favorable settlement that affirmed the clients’ innocence and avoided any redress or other payment.
- Defending a major telemarketing firm in a FTC action for allegedly deceptive marketing and advertising practices in violation of the Federal Trade Commission Act. When the representation began, the FTC already had obtained a Temporary Restraining Order seizing the assets of the Company and its owners. Negotiated a favorable settlement enabling the owners to regain control of their business and assets and resume operations.
- Representing direct response marketers in commercial disputes with manufacturers, suppliers, distributors, wholesalers, and fulfillment houses involving a variety of issues including breach of contract and trademark infringement.
- Counseling numerous Internet merchants and telemarketers with respect to regulatory compliance issues involving FTC and state marketing regulations.
REGULATORY INVESTIGATIONS BY THE FTC, STATE ATTORNEYS GENERAL AND OTHER AGENCIES
We assist advertisers and marketers in responding to regulatory investigations by the Federal Trade Commission, state attorneys general and other agencies. Regardless of the problem, we work closely with our clients to promptly identify and evaluate the critical issues related to the government’s investigation and develop an appropriate plan of action, whether the government has informally requested information, subpoenaed records, or sought an immediate access order.
COUNSELING DIRECT MARKETERS, TELEMARKETERS AND ELECTRONIC RETAILERS
We counsel companies engaged in direct marketing, telemarketing, infomercials and electronic retailing in all facets of their business, including advertising and infomercial clearance, trademark registration and compliance, sweepstakes and contests, online retailing and Internet commerce, CAN-SPAM compliance, negotiation and drafting of commercial agreements with vendors, suppliers, customers and celebrity endorsers, and rights of privacy and publicity.
ADVERTISING AND INFOMERCIAL CLEARANCE
We work closely with our clients from the concept stage through release to ensure that their advertising materials and promotions comply with federal, state and local laws, and other applicable standards. In addition to reviewing scripts, storyboards and copy, we also counsel our clients on the level of substantiation required for express and implied products and services claims, and help them conform their advertising to the relevant media guidelines, policies and standards.
TRADEMARK REGISTRATION AND COMPLIANCE
We assist our clients to develop and protect their valuable trademarks and copyrights. From the initial registration phase, we counsel our clients on how to avoid potential infringement of existing trademarks and copyrights and, where necessary, vigorously prosecute their infringement claims against manufacturers, suppliers, distributors, advertisers, marketers and merchants.
SWEEPSTAKES AND CONTESTS
We counsel our clients in connection with their promotion of sweepstakes and other contests offered through the Internet and all other forms of media. We also negotiate and draft the necessary agreements related to the promotion, from sponsorship, agency and tie-in agreements to liability, eligibility and publicity releases.
ONLINE RETAILING AND INTERNET COMMERCE
We have extensive experience counseling online merchants, electronic payment processors, and other Internet service providers on a wide range of issues, including liability issues associated with Website content, using and protecting trademarks and copyrights online, securing and protecting Internet domain names, online sweepstakes, contests and promotions, and CAN-SPAM compliance. We also negotiate and draft key commercial agreements for our clients, including Website hosting and development agreements, Internet service agreements, sponsorship agreements, advertising sales agreements and software agreements, among others.
CAN-SPAM COMPLIANCE
We assist our clients to ensure that they comply with CAN-SPAM and have defended against both federal and state claims.
NEGOTIATION AND DRAFTING OF COMMERCIAL AGREEMENTS
We assist our clients to secure their objectives, protect their interests, and limit their risks to the fullest extent possible by negotiating and drafting their key commercial agreements with vendors, suppliers, customers, and celebrity endorsers. Our experience allows us to identify and address lurking ambiguities and contingencies unforeseen by the parties, which frequently eliminates commercial disputes that might otherwise have arisen down the line.
RIGHTS OF PRIVACY AND PUBLICITY
We assist our clients in negotiating and drafting their promotion agreements with celebrity endorsers. We also counsel our clients on the use of celebrity images and likenesses in their advertising and marketing campaigns to ensure they comply with the applicable statutes and case law concerning rights of privacy and publicity.
COMMERCIAL LITIGATION FOR DIRECT MARKETERS
We prosecute and defend commercial disputes for direct marketers in state and federal court, as well as in domestic and international arbitrations. Some of the many matters we regularly handle include trademark and copyright disputes, rights of personality disputes, breach of contract disputes, and deceptive and misleading advertising claims.
Relataed articles:
 Firms Serving Online Merchants Must Protect Themselves Legally, by Theodore F. Monroe, Bradley O. Cebeci, and Jonathan Dekel, in The Los Angeles Daily Journal (May 12, 2006).
The Chilling Effect of FTC Enforcement on Advertisers’ First Amendment Right, by William I. Rothbard, Theodore F. Monroe, and Bradley O. Cebeci.
Legal Review: Is It What You Say or Who You Are? (co-authored with William I. Rothbard), in Response (October 1, 2005).
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