Areas Of Expertise
Clients rely on M&R’s experience and sophistication to keep up with the constantly evolving advertising and digital media industry.
We counsel industry clients in virtually every aspect of their operations, such as drafting and negotiating agreements between advertisers, agencies, and search and analytics companies; safeguarding our clients’ intellectual property rights; advocating before regulatory boards; and protecting our clients’ interests through civil litigation. M&R offers an interdisciplinary Advertising & Digital Media Industry Group with a large West Coast and East Coast presence, uniquely positioning us to service national clients that operate in diverse market sectors. We provide in-depth legal services to traditional advertising, creative, and media buying agencies; advertisers; media outlets; ad-tech companies; Internet publishers and other content providers.
We represent clients throughout the digital ecosystem, constantly staying abreast of changing trends and developments. We are nimble and forward thinking, and our practice continually expands with each new technological innovation.
We are particularly adept in advising and counseling companies on emerging technologies relative to advertising and marketing, helping them avoid the financial and regulatory risks and pitfalls so prevalent in the industry. Our Advertising & Digital Media Group, comprised of attorneys from our Intellectual Property, Corporate, Commercial Litigation, Regulatory and Employment Practices, advises on a myriad of issues facing the industry such as clearances, financing, mergers and acquisitions, prosecuting and defending infringement and trade secret claims, employment matters and risk management. Additionally, we focus on data privacy, assisting clients with the legal and regulatory framework attendant to privacy laws. These include drafting privacy policies that contemplate new technology, cross-device tracking and internal best practices associated with consumer data.
Areas Of Expertise
- Advertising Substantiation/False Advertising Claims
We counsel clients with respect to advertising substantiation claims, to ensure our clients are in full compliance with the Federal Trade Commission’s (FTC’s) regulatory standards. We know the ins and outs of consumer protection laws, as well as FTC policies, and routinely defend false advertising claims. For example, we successfully represented a direct marketing agency in a matter involving FTC and NAD allegations of false and unsubstantiated claims in the dietary supplement field in which our client was ultimately exonerated.
- Agency Liability
Our attorneys regularly advise and represent media vendors and advertising agencies regarding collection, risk management, sequential liability, and related issues for the industry, as well as joint and several liability. For example, we successfully defended a worldwide media buying agency in a precedent-setting matter relating to the liability of media buying agencies to media outlets, in support of the American Association of Advertising Agencies’ position on “sequential liability.”
- Branded Entertainment
With the proliferation of digital platforms, advertisers and media agencies routinely produce branded content for television, the Internet and various other multimedia outlets. Our attorneys are at the forefront of this technology—working with our intellectual property attorneys, we counsel on branding strategies and guidelines to promote our clients' businesses and protect and defend their brands.
- Contests, Sweepstakes and Promotions
M&R represents many leading advertising, promotion and digital agencies in all aspects of contests, sweepstakes and promotions, working on over 100 unique promotions each year. We develop the structure for each promotion, draft rules and ensure compliance with the complex regulations governing such activities. In addition, we counsel clients regarding state laws that often require contests and sweepstakes to be registered and bonded, and facilitate the registration and bonding as needed. We have counseled a promotions company on the legal framework of international sweepstakes, including an online component and potentially “inherently dangerous activity.”
- Direct Response Marketing
We routinely advise clients on direct response marketing, including infomercials, telemarketing and email marketing. A pioneer in this regard, we negotiated all aspects of an agreement on behalf of a direct response marketing agency in one of the longest running and highest grossing long-form infomercials, which included negotiating with the talent, marketer and media outlets.
Risks associated with e-commerce are varied and potentially very costly. We counsel clients regularly on the information, technology and business risks, from content issues to security concerns, supply chain challenges to legal exposure. We have, for example, represented a leading online marketer to ensure that proper disclosures were provided and billing consent was obtained. Moreover, we regularly draft and review all manner of web-based disclaimers and disclosures.
- Endorsements & Testimonials
The Food and Drug Administration (FDA) and Federal Trade Commission (FTC) issue strict guidelines governing the use of endorsements and testimonials in advertising. While having a celebrity or perceived specialist tout a product or service can be persuasive, absent requisite disclosures, they can also lead to costly litigation. We regularly counsel clients regarding proper disclosures and disclaimers surrounding endorsements and testimonials, as we did for a well-known multi-channel network that entered into agreements with a number of endorsers. We also represented a direct response marketing agency in its placement of a spokesperson in a highly rated long-form infomercial in the fitness industry, including negotiating profit participation, benefits and complex remuneration arrangements.
- Industry Agreements
From agency and media service agreements to joint venture collaboration agreements, we create and negotiate cutting edge industry agreements that meet our clients’ business objectives. In fact, we have drafted comprehensive media service agreements for clients, incorporating industry policy as determined by such associations as the American Association of Advertising Agencies (4As) and the Interactive Advertising Bureau (IAB), that have subsequently been used industrywide. Further, we negotiated sponsorship agreements for national advertisers in airports, theme parks and event venues. In addition, we represented an internationally-recognized entertainment and branding company in numerous large-scale sponsorship deals for the New York Marathon and high profile entertainment projects.
- Intellectual Property Protection & Litigation
We counsel on the validity and infringement of patents, trademarks and copyrights. Our attorneys are adept at prosecuting patents and trademarks before the U.S. Patent and Trademark Office, and are skilled in the cost-effective management of large and small domestic and international intellectual property asset portfolios. We also counsel clients regarding the protection of trade secrets and confidential information. Rapidly evolving technology has given rise to a myriad of internet, software, and technology-related trademark and copyright infringement claims. We have successfully litigated numerous trademark and copyright infringement disputes, as well as unfair competition, misappropriation of trade secrets, and false/misleading advertising claims in courts throughout the country. Moreover, we successfully prosecuted a case alleging the misappropriation of computer trade secrets that resulted in a multi-million dollar jury verdict that remains one of the largest in U. S. history.
- Mobile Marketing
We provide counsel on how best to optimize mobile marketing programs while complying with various state and federal regulations surrounding this popular advertising tool. Mobile video, apps, IOE, location-based marketing and other emerging platforms offer increased opportunities for advertisers to track consumers and target their messaging. They also present numerous and evolving legal hurdles to clear. We are deeply involved in these issues and counsel clients frequently on the opportunities as well as the obstacles. We advise clients concerning intellectual property and media issues surrounding initial viewer “opt-in requirements” relating to audience participation through Short Message Service (SMS) and other mobile marketing techniques. We also advise clients and industry professionals on privacy, security and other risks associated with cross-device tracking.
- Native Advertising
Some studies project that native advertising will account for over five billion dollars in spending by 2017. This fast growing form of digital advertising permeates all media. By definition, it is designed to assimilate into the context in which it is placed, so as to blend seamlessly with the user experience. This very premise makes native advertising susceptible to claims of being misleading, deceptive, a false endorsement, or infringing rights of publicity. M&R is on top of these issues, as well as product placement and integration in general, and regularly defends clients against these claims.
- Out-of-Home Advertising
M&R spearheaded the business and legal aspects of the first large supergraphics that wrapped entire sides of buildings, including those on the Sunset Strip in Los Angeles and in Manhattan. This included resolving issues with many constituent groups around the country and quelling political and public outcry. Since then, we have remained at the forefront of legal issues surrounding OOH advertising and play an active role in developing policy for the Digital Place-based Advertising Association (DPAA).
- Privacy Law
Rules governing how consumer data is collected and used may vary by state, and between federal and state laws. Many of the self-regulating guidelines, enforced by the Federal Trade Commission (FTC) and Federal Communications Commission (FCC), represent increased regulation of the interstate and cross-border flow of data. Our attorneys, including Certified Information Privacy Professionals (CIPP/US), advise on privacy protection, data reliability, data security, data retention and other emerging legal issues that arise in this constantly evolving arena, particularly as they pertain to the collection and use of consumer information for marketing purposes. For example, we advised a marketer regarding HIPAA and “opt-in” requirements relating to an online store and associated marketing campaign. We regularly draft and review online privacy policies, advise marketers regarding the risks associated with sharing data with third parties, and counsel clients about the acceptable uses of data generated or acquired from various platforms, products, services and sources. In addition, the head of M&R’s Advertising & Digital Media Group, Ron Camhi, serves as Co-Chair of the Privacy Committee of the Digital Place-based Advertising Association (DPAA).
- Programmatic Marketing
Programmatic media buying, in real time through automated ad exchanges, promises more sophisticated targeting and efficiencies. However, questions of fraud, lack of transparency and privacy infringement have also been raised in the process. M&R understands the technology and the legal challenges it presents, and has counselled programmatic marketers who connect buyers and sellers and digital media, as well as agencies, advertisers and others active or interested in programmatic buying.
- Social Media Marketing
With an in-depth understanding of popular social media channels and the evolving regulations governing their use, our attorneys offer cutting edge advice to help clients attract new business through social media campaigns and ensure compliance with complex regulatory and self-regulatory requirements. We have represented numerous companies in structuring multi-platform social media campaigns to promote their products, including drafting social media policies and advising on regulatory compliance.
- Telephone Consumer Protection Act (TCPA)
Enacted in 1991 to prevent unsolicited “robocalling,” texting and faxing by telemarketers, the TCPA has been broadly interpreted by the Federal Communications Commission (FCC) and at the heart of countless lawsuits filed across the country against a variety of companies, from social networking companies and online service providers to pharmacies, school boards, entertainment companies, retailers and others. M&R frequently counsels advertisers on ways to obtain consent and thereby satisfy TCPA’s requirement. We have successfully represented a telemarketing service provider accused of making millions of deceptive calls to consumers. In addition, we successfully defended two federal class actions involving TCPA claims, have handled pre-litigation claim resolutions, and routinely advise clients on TCPA rights and obligations, compliance and best practices.
- Video Game & Interactive Entertainment
We assist Internet-based businesses, startups, global software developers, new media companies and investors with financing, mergers and acquisitions, and branding and rebranding campaigns, in addition to software development, distribution, and marketing and licensing agreements. We also provide sophisticated corporate and transactional counseling to digital film studios, social gaming companies, mobile marketing companies, online securities firms and e-commerce companies, among many others. We work with leading video game and interactive entertainment publishers, developers and technology providers by drafting, structuring and negotiating vendor agreements, nondisclosure agreements, employment agreements and other business contracts, including portions unique to the needs of the gaming and software industries. We also have extensive experience representing these companies in litigation when disputes arise.
Advertising Substantiation: Successfully represented direct marketing agency relating to claims of false and unsubstantiated health claims in the dietary supplement market including settlement claims brought by the FTC and NAD. Resolution involved exoneration of client from claims brought by the FTC.
Agency Liability: Successfully defended a worldwide media buying agency in a precedent-setting matter relating to the liability of media buying agencies to media outlets, including litigating agency principals and the American Association of Advertising Agencies’ position on “sequential liability”. We have successfully advanced these legal theories in bankruptcy courts and other venues across the country.
Digital Media: Counseled well known multi-channel network relative to its agreements with endorsers and the implication of the endorsement guidelines promulgated by the FTC.
Direct Response Marketing: Negotiated all aspects on behalf of direct response marketing agency in one of the longest running and highest grossing long-form (“infomercial”) agreements, including negotiating with talent, marketer, and media outlets.
Financing, Production and Distribution Agreements: Represented film producers and production companies in securing rights to film projects and necessary financing, production and distribution agreements.
Games, Contests & Sweepstakes: Counseled promotions company on the legal framework of international sweepstakes, including online component and potentially “inherently dangerous activity.”
Illegal Lottery: Negotiated, defended and resolved claim by state attorney general relating to claim based on “illegal lottery” and lack of “second chance drawing” issues.
License Agreements: Devised the structure and created license agreements between building owners, media companies and advertisers for country’s most famous building wraps and super graphics throughout the country.
Licensing and Business Contracts: Negotiated licensing and business contracts for a popular graphic novel artist whose work appeared streaming online and in groundbreaking new 3-D technology.
Media Service Agreements: Drafted comprehensive media service agreements incorporating industry policy as determined by such associations as the American Association of Advertising Agencies (AAAA) and the Interactive Advertising Bureau (IAB), that are frequently used as templates in the industry.
Mobile Marketing: Advised on intellectual property and media issues surrounded initial viewer “opt-in requirements” relating to audience participation through SMS and other mobile marketing techniques.
Mobile Phone Music and Video Sponsorship: Represented globally-recognized music photographer and Production Company in mobile phone music and video sponsorship integration concept.
Outdoor Advertising: Spearheaded the business and legal aspects of the first large super graphics that wrapped entire sides of buildings, including those on the Sunset Strip in Los Angeles and in Manhattan. This included resolving issues with many constituent groups around the country and quelling political and public outcry. Today, these super graphics play a major role in advertising.
Privacy: Advised marketer to the health care industry HIPAA and “opt-in” requirements relating to online store and associated marketing campaign.
Product Placement and Integration: Drafted successful product integration agreement with Detroit automaker, mobile phone company, and multi-channel network for branded content-related programs to be run through the MCN.
Sponsorship Agreements: Negotiated sponsorship agreements for national advertisers in airports, theme parks and event venues. Represented internationally-recognized entertainment and branding company in numerous large-scale sponsorship deals for the New York Marathon and high profile entertainment projects.
Substantiation Claims: Successfully represented direct marketing agency relating to false and unsubstantiated health claims in the dietary supplement market, including settling claims brought by the FTC and NAD, with the resolution including the total exoneration of client.
Traditional Media: Represented direct response marketing agency in placement of spokesperson in highly rated long form infomercial in the fitness industry including negotiating profit participation, benefits and complex remuneration arrangements.
- March 24, 2020
- ‘Everyone is hitting the pause button’: With sports on hold, advertisers grapple with whether coronavirus is a force majeure eventMarch 23, 2020
- November 6, 2019
- July 9, 2018
- May 30, 2018
- April 16, 2018
- November 9, 2017
- September 14, 2017
- August 7, 2017
- April 21, 2017
- March 31, 2017
- March 23, 2017
- March 15, 2017
- November 4, 2016
- August 19, 2016
- May 13, 2016
- May 6, 2016
- FTC Sends 'Strong Message' Over Native Ads, Paid Promotions on Social Media with Lord & Taylor settlementApril 18, 2016
- January 25, 2016
- June 1, 2015
- Internet Retailer, April 24, 2018
- DRMA Voice, November 8, 2016
- Target Marketing, November 3, 2016
- DRMA, August 9, 2016
- Law360, May 13, 2016
- A “Reason to Believe” the FTC Is Quite Unhappy December 3, 2018
- Pfizer Settles With New York Attorney General Over "Pay No More Than" Claims November 27, 2018
- A Formula for Trouble: New York AG Settles With Abbott Labs Over Misleading Surveys November 19, 2018
- The GDPR Comes to the Golden State July 2, 2018
- Social Media Influencers Who Pay . . . No Way March 27, 2018
- Costco Takes Its Coffee with Cream and a Civil Penalty March 26, 2018
- The Key to Native Advertisement in Three Words: Disclose, Disclose, Disclose February 20, 2018
- Advertising Agencies Beware: Your Clients Aren’t The Only Ones On The Hook For FTC Violations February 14, 2018
- The Ultimate Trade-Off Now Being Offered by Verizon September 18, 2017
- Direct Response Marketers Beware April 11, 2017
- DPAAOnline, June 15, 2020
- IAB Ad LabNew York City, New York, March 14, 2019
- Advertising WeekNew York, NY, October 2, 2018
- Digital Signage Expo 2018Las Vegas, NV, March 28, 2018
- NY NOWNew York, NY, February 5, 2018
- 2017 ANA/BAA Marketing Law ConferenceChicago, IL, November 14, 2017
- Startup Weekend Ventura County: Healthcare & AgricultureCamarillo, California, April 21, 2017
- ANA/BAA Marketing Law ConferenceChicago, IL, November 11, 2016
- Digital Place-based Advertising AssociationNew York, NY, June 16, 2016
- Digital Place-based Advertising Association (DPAA) MeetingNew York, NY, March 11, 2016
- Digital Entertainment WorldFebruary 2, 2017
- Entertainment & Technology Law ConferenceSeptember 16, 2016
- Silicon Beach FestSeptember 2, 2016
- Digital WOMENMarch 8, 2016
- Silicon Beach FestJune 25, 2015
- Silicon Beach FestJune 25, 2015
- Silicon Beach FestJune 25, 2015
- WebinarJune 24, 2015
- 2015 ad:tech San FranciscoMay 20, 2015
- Digital Latino: Startups, Content & SocialMay 5, 2015
- Digital LA’s Digital Women ConferenceMarch 6, 2015