Advertising, Consumer Protection, and Privacy

Our litigation experience in advertising, consumer protection, and unfair competition matters includes:

• Litigating federal and state false advertising and unfair competition claims brought by competitors, governmental agencies, and consumer classes
• Litigating related claims under the U.S. Lanham Act, including trademark and trade dress infringement and product disparagement, as well as business torts, defamation and matters implicating First Amendment issues
• Defeating class certification in consumer class actions
• Prosecuting and defending cases through the NAD of the Council for Better Business Bureaus and industry trade associations
• Defending investigations and actions brought by the FTC, FDA, CPSC, CFPB and other federal agencies, as well as State Attorneys General (including multistate actions)

We regularly advise clients regarding advertising and marketing practices, including review of particular advertising and marketing materials, to facilitate compliance with the wide variety of applicable laws and regulations in the United States and in other countries. Our experience includes:

• Advising on U.S. and global advertising and marketing regulations and clearance requirements, including regarding claim substantiation, disclosure issues, comparative advertising, and "green" claims and other environmental marketing regulation, including the FTC's Green Guides
• Advising on marketing and promotion of pharmaceuticals, medical devices, food, dietary supplements, cosmetics, and other products subject to FDA regulation
• Analyzing advertising, contests, sweepstakes and promotions on the Internet and in traditional media to ensure legal compliance, and litigating issues arising from such promotions
• Advising on the use and misuse of social media, including the FTC Endorsement and Testimonials Guides
• Advising on federal and state product safety and product ingredient regulations, including the U.S. Hazardous Substances Act, California's Proposition 65, the U.S. Consumer Product Safety Act, the U.S. Flammable Fabrics Act and others
• Advising on structuring pricing discounts under FTC and state laws, gift card programs and other customer loyalty programs
• Advising on compliance requirements for telemarketing, and lead generation, including defense of FTC investigations regarding its Mail Order Rule, Telemarketing Sales Rule, and compliance with Do Not Call restrictions
• Drafting and negotiating agreements with service providers in the advertising and promotions field, including advertising agencies, digital marketing agencies, telemarketing and lead generation firms, and software application developers

We routinely handle consumer protection and privacy issues in the context of bankruptcy cases. The sale or disposal of personal information, such as employee or customer data, requires skilled and experienced negotiators who are able to avoid costly and lengthy delays that can occur in bankruptcy proceedings. Our experience includes:

• Representing purchasers or sellers of assets in retail bankruptcies, including negotiating with various attorneys general and court-appointed consumer ombudsmen where objections are raised as to the proposed sale of personal identifiable information on employees, customers, and various email lists.
• Representing large retailers in Chapter 11 bankruptcy cases and handling all aspects of consumer and privacy issues, including the sale of private information and computer data on customers and employees and/or the disposal or long-term storage of such records.
• Representing large retail chains needing to liquidate assets in large-scale going-out-of-business (GOB) sales, as well as the liquidators themselves. Whether representing the retailer or the liquidator, we routinely handle extensive objections from landlords and attorneys general concerning consumer protection issues, including concerns about the extent to which customer programs, discounts, warranties, coupons, and returns of merchandise will be honored.
• Representing large retail chains in litigating whether outside inventory not belonging to a debtor (so-called "augmented goods") can be brought into the debtor's retail stores and sold to consumers as part of GOB sales.

We customize privacy solutions and policies to address the complex challenges raised by privacy and data security requirements in the United States and internationally, tailored to the needs of each client and the industry in which it operates. Our experience includes:

• Litigating cases brought by federal or state regulators or consumer classes relating to data breach, data privacy, disposal of personal information and employer group health privacy
• Advising on privacy issues, including the proper responses to security breaches, FTC guidelines and state privacy initiatives, various state information security laws, and the EU Data Directive
• Providing audits and counseling on privacy and data security
• Developing privacy and security policies and compliance programs, including multi-jurisdictional projects
• Advising on compliance with the U.S. Health Insurance Portability and Accountability Act (HIPAA), Gramm-Leach-Bliley, and the Federal Trade Commission Act and regulations
• Advising on crossborder privacy considerations, including EU privacy legislation, in the context of day-to-day operations, outsourcing arrangements, and mergers and acquisitions
• Developing website privacy policies and advising on online information-gathering practices
• Drafting and negotiating a wide range of agreements involving the processing, maintenance, and safeguarding of personal information

Lawyers in the practice handle agreements and disputes involving branding, promotion, and endorsement issues related to celebrities and well-known figures, as well as other issues in the sports and entertainment fields. We have worked on the following representative matters:

• Advising clients regarding a variety of innovative marketing activities, such as arrangements relating to licensing, sponsorship, product placement, product integration, celebrity spokesperson, cross-promotional, crowd-sourcing, guerrilla marketing, and viral marketing activities
• Drafting and negotiating product development, strategic alliance, brand endorsement, and sponsorship arrangements with celebrities
• Drafting and negotiating agreements with major sports organizations, teams, venues, and others
• Promotional and sponsorship agreements for entertainment events, television programs, movies, and websites
• Arrangements for product placement or brand integration in films, television programs, computer games, music videos, musical works, and software applications, and related global co-promotional agreements
• Drafting and negotiating development agreements for mobile apps for marketing purposes
• Assessment and litigation of rights-of-publicity claims