Advertising Law Blog

Marketers, it's important to dust off your terms and conditions.  2016 has seen a sharp spike in consumer lawsuits alleging violations of New Jersey’s awkwardly named Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14, et seq. (the “TCCWNA”).

Magazine publishers and list managers take note.  American Media is the latest magazine publisher to be hit with a class action lawsuit accusing it of violating subscribers’ privacy rights by selling information about them without written consent.  The suit is part of a growing trend, following similar allegations in the past year against leading media companies like Conde Nast parent company Advance Magazine Publishers Inc.,  Hearst Communications Inc. and Reader’s Digest publisher Trusted Media Brands, Inc., to challenge list rental practices under a long-ignored Michigan statute enacted in the wake of the Robert Bork Supreme Court nomination proceedings.

Andrew Lustigman, head of the firm’s Advertising, Marketing & Promotions Practice Group, was quoted following the FTC’s Lord & Taylor settlement focusing on native advertisements and endorsements in the article, “FTC's Lord & Taylor Action Shows Perils Of New Ad Strategies,” published in Law360 on March 15, 2016.

Olshan Advertising Partner Andrew Lustigman was quoted by Digiday, a New York-based online publication that covers the digital marketing industry, on legalities involved in marketing junk food to kids through McDonald’s new VR Happy Goggles. 

The Federal Trade Commission issued its annual list of consumer complaints received by its Consumer Sentinel Network.  

Bloomberg BNA Electronic Commerce & Law Report published “Social Media Considerations for Real Estate Companies” authored by Olshan Partners Andrew Lustigman and Mary Grieco. 

Luxury retailers Burberry and Coach were the latest retailers to be hit with class action lawsuits involving accusations of deceptive pricing and discount advertising of merchandise sold at their outlet stores.  The lawsuits are part of a growing trend focusing on allegations of deceptive outlet and discount store comparative pricing.

Retailers across the country have been facing  private class action lawsuits alleging that certain discount pricing practices constitute false advertising based on the allegation that the discount is fictitious.  Discount retailer, Kohl's, recently obtained dismissal of one such action.

The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements and business guidance detailing the agency’s position with respect to native advertising reinforces advertisers’ obligation to be transparent and authentic.  Moreover, with the increasing prevalence of native ads, the FTC’s announcements likely will trigger enforcement actions in the not too distant future.

Olshan Advertising, Marketing & Promotions Practice Group Leader Andrew Lustigman was extensively quoted in the Electronic Commerce & Law Report published by Bloomberg BNA addressing the outlook of social media advertising. 

Olshan Advertising Partner Andrew Lustigman spoke at prestigious American Association of Law Schools’ (“AALS”) annual meeting

Many businesses involved in online commerce seek to reduce the risk of lawsuits by including arbitration clauses and class action waivers in their website terms and conditions.

FTC guidelines on compliance: education, monitoring and enforcement for social media.

Brands must actively monitor the posts by social media influencers, particularly where there is a business relationship, either directly or indirectly, between them.

In a landmark decision issued on October 6, 2015, the Court of Justice of the European Union (CJEU) declared the U.S.-EU Safe Harbor for the transfer of personal data to be invalid.

Everyone talks about crowdfunding. What type of crowdfunding, if any, is right for my business? Learn the trends and best practices of successful campaigns.

Andrew Lustigman to speak at IZEAFest 2015 on October 23, 2015.

Mobile Marketer Daily recently highlighted the Firm client alert from Olshan Advertising Partner Andrew Lustigman addressing the new social media and endorsement guidance from the FTC.

Olshan Advertising Partner Andrew Lustigman was quoted regarding FTC’s power to penalize companies for insufficient cybersecurity practices.

Direct marketers have long been the focus of the Iowa Attorney General’s office. This scrutiny has now expanded to focus on companies that provide goods or service to marketers, particularly involving psychic or sweepstakes-related promotions. While many believe this scrutiny to be misplaced, suppliers nevertheless need to be vigilant with respect to their business practices with respect to their clients’ marketing practices.

Olshan Advertising, Marketing & Promotions Partner Andrew Lustigman was quoted in a Law360 article on the Federal Trade Commission’s revised advertising endorsement guidelines addressing paid product reviews on social media.

The FTC recently updated its Endorsement Guides FAQs, entitled “The FTC’s Endorsement Guides: What People Are Asking”. As advertisers increasingly rely on third parties to promote their products and services, the revised FAQs provide guidance as to appropriate disclosures and compliance obligations that should be considered in connection with such marketing efforts. This highlights the revisions to the FAQs and discusses key steps advertisers should take to support their compliance efforts.  

Olshan Partner Andrew Lustigman and Associate Mason Barney Discuss Recent Actions for how Companies Approach Cybersecurity.

Despite obtaining an appellate ruling rejecting an across the board fixed substantiation requirement and an endorsement of first amendment rights to truthful promote certain health claims, POM is now seeking a rehearing from the broader appellate court on the issue of the constitutionality of POM’s advertising. While such a challenge is a long shot, the stakes are high for the FTC and marketers alike.

Andrew Lustigman was an Editor for Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division.

Cyber-liability coverage cannot be addressed in a one-size-fits-all fashion.

Andrew Lustigman spoke at the Direct Marketing Association and Mobile Marketer's 6th Annual Mobile Marketing Day.

Olshan Partner Andrew Lustigman authored an article published by Inside Counsel entitled, "An overview and the impact of the Consumer Privacy Bill of Rights."

Partners Andrew Lustigman and Howard Smith authored an article published by Inside Counsel entitled, "When self-regulatory remedies can be the better alternative."

Lustigman discusses the challenges of advance consent in Inside Counsel article.

Andrew Lustigman and Scott Shaffer Discuss TCPA Lawsuits and Implications on Telemarketers in new Inside Counsel article.

Andrew Lustigman to speak at the fourth annual Mobile FirstLook: Strategy 2015 conference on January 15.

The sufficiency of the advertisements should be evaluated by analyzing whether they pass the four P’s test.

Ascertaining whether the appropriate rights have been secured need to be carefully considered, even if the marketer is seeking to act in real time.

Inside Counsel article on COPPA Ramifications.

Inside Counsel article on using online reviews as advertising

Compliance with the TCPA consent requirements remains a daunting task fraught with peril. 

Andrew Lustigman discusses legal issues and recent cases in social media.

As typically the consumer facing entity, the manufacturer has potential exposure from regulators and consumers alike for disseminating potentially unsupported claims.

A recent Facebook change is just another reminder that brands need to be aware of the traditional legal rules governing promotional marketing, as well as the social media terms and policies.

Digital Social Media Promotions Law Update will offer an analysis of the current state of legal issues impacting social media campaigns.

In response to its dispute with Amazon, the FTC has revised some of its FAQs with regard to parental consent.

Comments the Hobby Protection Act are due to the FTC by September 22, 2014.

Networking. Personal involvement. Consistency. Common sense. Making it about the people.

New Jersey's new legislation on residents' eligibility to participate in skill contests still leaves room for confusion.

The appellate court has rejected the FTC’s argument that internal sales cannot be considered sales to ultimate users for purposes of a pyramid scheme analysis.

Data breaches continue to make headline news.

The new FTC report “Data Brokers: A Call for Transparency and Accountability” proposes specific legislation as well as best practices.

Online businesses that interact with the EU need to carefully examine their practice to be sure that they are either not triggering EU Data Protection requirements or are in compliance therewith.

Lustigman discusses the non-appealable decision recently made by the highest court in the European Union, that Google must, in some cases, honor requests from its search engine users to delete links to personal information.

The FTC’s settlement with Fortune Hi-Tech continues the agency’s push to permit only commissions on third-party sales.

Andrew Lustigman writes for Financier Worldwide: "False advertising challenges in the US: A potential alternative to courtroom litigation."

Andrew Lustigman will Speak on City Bar CLE Panel on Sweepstakes, Promotions and Marketing on May 16, 2014.

The FTC and the Information Commissioner’s Office of the United Kingdom (UK) entered into a memorandum of understanding (MOU) intended to promote increased cooperation and communication between the two agencies to protect consumer privacy.

Canada’s version of CAN-SPAM is coming: Plan Now!

Click below for more information on this event, sponsored by The New Jersey Institute for Continuing Legal Education.

The California Supreme Court currently is considering an appeal that will have broad-reaching consequences for policyholders that face allegations of patent and trademark infringement.

Efficiently Stopping False or Unsubstantiated Competitive Advertising in the recent edition of Recent Developments in Advertising Law: Leading Lawyers on Applying Traditional Laws and Policy Guidance to Emerging Technologies and Advertising Media.

New York State recently extended the protections afforded to child performers under New York's labor laws to child models. Backed by the efforts of the not-for-profit organization the Model Alliance, State Senators Jeffrey Klein and Diane Savino, and Assemblyman Steven Otis, introduced the legislation, which passed the State Senate and Assembly unanimously on June 12, 2013.

Andrew Lustigman and Howard Smith served as contributing authors on the chapter "Efficiently Stopping False or Unsubstantiated Competitive Advertising" in the recent edition of Recent Developments in Advertising Law: Leading Lawyers on Applying Traditional Laws and Policy Guidance to Emerging Technologies and Advertising Media. 

On September 17, 2013, from 12:30-1:30pm Eastern time, Olshan will present the webinar Important Changes To The Telephone Consumer Protection Act (TCPA): What You and Your Client Need To Know.

On September 30 - October 2, 2013 the Advertising Self-Regulatory Council will hold their NAD, CARU, and ERSP Annual Conferences.

As class actions and other forms of litigation continue to plague corporate America as a major cost of doing business, businesses should be cognizant of one potent antidote that has repeatedly received judicial approval: mandatory arbitration clauses.

The FTC has proposed new amendments to the Telemarketing Sales Rule. Importantly, the proposed changes would bar non-traditional payment mechanisms such as remotely created checks. The proposed rules also clarify other provisions of the Rule.

As a reminder, last year the FCC revised its rules for auto-dialed calls to completely eliminate the established business relationship (EBR) exemption for calls to landline numbers. The new regulations go into effect on October 16, 2013.

Recently proposed legislation in New York and in Maine, if passed, would impact businesses that provide subscription arrangements. These laws reflect a growing legislative trend to regulate goods and services billed on an auto-renewal basis.

The State of Florida has amended its laws regarding "game promotions" and "drawings by chance." The amendments as well as an April 11, 2013 press release issued by the Florida Division of Consumer Services has raised numerous questions regarding the impact on non-profit organizations. Not all is clear, but here's what we know so far.

On March 12, 2013 the Federal Trade Commission released an update of its guidance known as Dot Com Disclosures, which was first released in 2000.

Olshan's Andrew Lustigman is featured in Digiday's article, "Brands Biggest Legal Problems in Digital".

The categories in the 2012 Annual Report are important as they typically portend future FTC scrutiny and enforcement for businesses in such areas.

On March 27, 2013, 12:30 - 1:30 p.m. EDT., Olshan will present the webinar Competitor Advertising Challenges: Lanham Act vs. NAD. CLE credit will be available for this complimentary program which will offer a practical analysis of alternative forums for addressing competitor advertising claims.

The National Association of Attorneys General has announced the Top 10 Consumer Complaints for 2012.

AvertisingLawBlog.com provides commentary and news on developing legal issues in advertising, promotional marketing, Internet, and privacy law.

The Federal Trade Commission announced that it will host a one-day public workshop on October 2, 2012, to examine competition and consumer protection issues in the pet medications industry.

The New York Law Journal interviewed Howard J. Smith as an expert on the recent trend of mediation for resolving disputes because the parties save "time and money."

NEW YORK, June 21, 2012 -- Olshan today announced that William R. MacDonald has joined the firm as a partner in the Advertising, Marketing & Promotions group.

Olshan will present a webinar focusing on "What Every Business Should Know About Creating And Protecting Its Brand" on June 21, 2012, 12:30 - 1:30 p.m. EDT.

Andrew Lustigman and Sam Ross were recognized and ranked by Chambers USA.

On May 24, 2012, the FCC issued a final rule amending its existing Truth-in-Billing rules.

The New Jersey Assembly is currently considering 2012 New Jersey Assembly Bill No. 2578, a bill that would authorize Internet gaming in Atlantic City casinos under certain circumstances.

In Viacom Int'l, Inc., et al. v. YouTube, Inc., et al., the United States Court of Appeals for the Second Circuit recently reversed a district court's holding that defendants were entitled to safe harbor protection under §512(c) of the Digital Millennium Copyright Act.

Olshan has been selected by The National Law Journal for its "2012 Midsize Hot List" of the top 20 midsize law firms in the U.S.

Andrew B. Lustigman tells Law360 that Verizon's decision to cease third-party billing is "an enormous blow for competition in the telecommunications marketplace".

Best practices for businesses regarding users' personal data.

The FTC alleged that social media website RockYou knowingly collected approximately 179,000 children's email addresses and associated passwords during registration - without their parents' consent - and enabled children to create personal profiles and post personal information on slide shows that could be shared online.

Summary of the significant developments in consumer protection law during March 2012.

The Federal Trade Commission has released its list of top consumer complaints received by the agency in 2011.

In response to industry confusion on how promoters of mobile applications should deal with privacy issues, the Mobile Marketing Association recently released its Final Privacy Policy Guidelines for Mobile Apps.

An interesting opinion letter issued by the United States Department of Justice's Office of Legal Counsel may pave the way for legalized online gaming in the United States.

Complimentary Webinar

The FTC is seeking comments on the benefits and cost of the Textile Labeling Rules, as well as other issues.

As part of its ongoing review of FTC rules and guides, the FTC is seeking public comment on proposed amendments to its Mail or Telephone Order Merchandise Rule.

"It's Fugazi: Assessing Your International Criminal and Civil Enforcement Options"

The Second Circuit recently clarified that its Verity decision, in which the court found that net profits was the proper measure for a disgorgement award in an FTC action, was limited to situations involving third-party processors.

Andrew Lustigman will be presenting at the National Advertising Division Annual Conference 2011.

The class actions regarding the premium SMS sweepstakes promotions for the play-at- home version of popular TV shows such as American Idol and Deal or No Deal alleging that the contests are illegal lotteries have reportedly been settled.

The recent Supreme Court term resulted in a number of very important decisions that will impact companies engaging in advertising and marketing in the United States. Some decisions, such as Wal-Mart v. Dukes and AT&T v. Concepcion were pro-business particularly in the class action context.

Olshan partner Steven R. Gursky delivered a speech during the dedication of the Dr. Martin Luther King, Jr. National Memorial, commemorating the life and work of Dr. King.

On June 16, 2011, the Federal Communications Commission ("FCC") issued an Enforcement Advisory on cramming after announcing four Notices of Apparent Liability.

The Federal Trade Commission will be revising the "Dot Com Disclosures: Information About Online Advertising."