Posts tagged Advertising, Marketing & Promotions News.

Juice Joint facing catastrophic liability after jury decides against it on the merits

Faced with a series of class-action lawsuits over its Joint Juice drink, Premier Nutrition Corp. has lost the first jury trial and is now fighting back against what could be a devastating financial blow if it loses a post-trial motion scheduled to be heard next month in the Northern District of California. The company was found by a jury to have falsely touted the health benefits of the drink, so the issue is no longer whether the claims were defensible, but how much the marketer will have to pay to the class of purchasers.

FTC likely to eliminate the exemption

The Federal Trade Commission (“FTC”) is considering a proposed amendment to the Telemarketing Sales Rule (“TSR”) that would broaden the rule’s scope by prohibiting material misrepresentations and false or misleading statements in business-to-business (“B2B”) transactions.

Source: NAAG Press Release

The National Association of Attorneys General (“NAAG”) sent a letter to the Federal Communications Commission (“FCC”) on behalf of 41 states’ attorneys general commending the FCC for its leadership in combatting robocalls and sharing their commitment to working collaboratively with the FCC via information-sharing agreements. The lead states in this effort are Colorado, Tennessee and North Carolina.

Andrew Lustigman, Chair of the firm's Advertising, Marketing and Promotion's Group and Co-Chair of Brand Management & Protection Group, will speak on the panel “Rethinking the Role of Loyalty Programs: Considerations for Food Manufacturers” as part of ACI’s Food Law Conference.

Facebook joins Amazon in pursuing reviews for sale

Facebook, through its parent company Meta, has filed a federal lawsuit against a company that allegedly produces and sells fake reviews and feedback for ads designed to increase an advertiser’s Facebook Customer Feedback Score. The lawsuit was filed in the Northern District of California against Chad Taylor Cowan of Australia, who does business under the name Customer Feedback Score Solutions.

As reported in The New Jersey Law Journal (subscription required), Olshan partner Scott Shaffer achieved a full dismissal with prejudice of a class-action lawsuit filed under New Jersey’s Consumer Fraud Act.

Olshan attorneys Andrew LustigmanMary Grieco and Morgan Spina will present a webinar entitled The Legal Side of the Digital Marketing World hosted by the Social Media Association.

Online children’s education company Age of Learning, Inc., also doing business as ABCmouse, has agreed to pay $10 million to settle the FTC’s charges that it made it difficult and confusing for subscribers to cancel their memberships.  The settlement highlights the importance of a compliant subscription enrollment pathway, including readily-accessible cancellation processes.  It also highlights a growing focus by regulators and others on “dark patterns” online marketing techniques.

Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in a Law360 article about the Federal Trade Commission’s suit against A&O Enterprises Inc. for making false claims about their intravenous therapy products.

Olshan partners Steve Wolosky, Andrew B. Lustigman, Thomas D. Kearns, Eric L. Goldberg, Stephen L. Ferszt and of counsel Samuel P. Ross have been selected by their peers for inclusion in The Best Lawyers in America© 2019.

Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in the New York Post.

Many early stage technology-based companies with promising ideas may compromise substantiating their product’s performance claims with the belief that there is time for compliance down the road.   The FTC’s recent case against the marketers of two app-supported smartphone accessories, advertised to accurately measure consumers’ blood alcohol content, and who received funding on Shark Tank, highlights the risk in waiting.

The 2016 ANA/BAA 38th Marketing Law Conference will take place November 9-11, 2016 in Chicago and builds on the tradition as the broadest marketing and advertising law conference with deep practical legal content, fruitful networking and major CLE credits.

Olshan listed in The Legal 500, a London-based directory of leading lawyers for Media, Technology & Telecom work (Advertising, Marketing & Promotions) in Tier 3 in its 2016 edition.

Summary of the significant developments in consumer protection law during March - April 2016.

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

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

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.

FCC schedules a vote on the commissioner’s proposals for June 18th.

A District Court has ruled that LeadClick Media, an affiliate marketing network, and its parent company, CoreLogic, Inc., must turn over $16 million they received from Leanspa LLC, an advertiser that sold purported weight-loss products.

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

Defendants defeat class action via summary judgment.

Inside Counsel article on using online reviews as advertising

This 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.

Yoplait's challenge to Chobani's television and online advertising reminds that claims which expressly or implicitly disparage a competing product must be accurate and narrowly drawn.

Scott Shaffer wrote an article for Bloomberg publications and was quoted in Law360 on the effects of the record-setting TCPA settlement for Capital One.

Groupe SEB USA v. Euro-Pro, Case No. 14-137(WD Pa)

Plaintiffs Failed To Propose A Feasible Way To Identify Class Members

Court: the question of consent is often a fact-intensive inquiry and may vary with the circumstances of the parties.

California court allows texting class action to proceed vs. search engine.

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

Effective January 1, 2014, a modification to a California law now requires any "operator of a website or online service that collects personally identifiable information" through the Internet on California residents to include new do-not-track disclosures in its privacy policy.

Partner Scott Shaffer was quoted in a Law360 article about the Digital Accountability and Transparency Act (DATA Act).

In Shelton v., decided on November 4, 2013, the Third Circuit Court of Appeals held that a one-year expiration date for a restaurant gift certificate violated a New Jersey statute with a cumbersome name, the Truth-in-Consumer Contract, Warranty, and Notice Act (TCCWNA).

In Carrera v. Bayer Corporation, decided August 21, 2013, the Third Circuit Court of Appeals issued an important ruling making class certification more difficult to achieve in certain consumer class actions.

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

The SEC recently adopted two final rules that have the potential to significantly impact private securities offerings conducted under Rule 506 of Regulation D under the Securities Act of 1933.

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.

In the United States District Court for the Eastern District of New York, pharmaceutical sales representative Alfred Caronia was convicted of conspiracy to introduce a misbranded drug into interstate commerce, a misdemeanor.

Advertisers typically take comfort if their advertising has been approved by the governing regulatory agency. A recent NAD decision in the pet care context places that long-standing belief into jeopardy.

Effective November 12, 2012, sweeping new telemarketing legislation is now in effect in New York.

Earlier this year, Oracle sponsored a contest that was advertised on the front page of the Wall Street Journal and other major newspapers.

The Western District of Washington has joined the Northern District of Illinois and the entire state of California as a hotbed of activity for Telephone Consumer Protection Act (TCPA) class action suits.

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

Andrew Lustigman will speak at the 34th Annual Promotion Marketing Law Conference in Chicago, IL on November 13-14, 2012.

It is not always easy to distinguish between telemarketing and informational calls because the line between the two can often become blurred.

Canada is on the verge of implementing sweeping new regulations on email marketing. Canada's Anti-Spam Law ("CASL") was passed in December 2010, but most of its operative provisions are expected to take effect sometime in 2013.

By William MacDonald*

Olshan is pleased to announce that it is now participating in the American Association of Advertising Agencies' (the "4As") Legal Consultants Program.

By William MacDonald*

Artist Arena, the operator of fan websites for music stars Justin Bieber, Rihanna, Demi Lovato, and Selena Gomez, has agreed to pay $1 million to settle Federal Trade Commission ("FTC") charges that it violated the Children's Online Privacy Protection Act ("COPPA") by improperly collecting personal information from children under 13 without their parents' consent.

By William MacDonald*

The Federal Trade Commission will announce final revisions to its "green" marketing guides on Monday, October 1, 2012, at 11:30 a.m. on the FTC's website,...

District of New Jersey Judge Renee Marie Bumb has placed an unusual requirement the Federal Trade Commission as a condition for approving a settlement the FTC wants to enter into with the marketers of a weight loss supplement.

By William MacDonald*

Following a public comment period, the Federal Trade Commission (FTC) has voted to approve a final order settling FTC charges that Myspace misrepresented its protection of users' personal information.

On June 28,2012, a federal judge in California ruled that a false advertising class action against the makers of the popular Muscle Milk line of products can proceed.

By William MacDonald*

On June 29, 2012 Walt Disney Pictures and Buena Vista Home Entertainment, Inc. (collectively, "Disney") filed a declaratory judgment action against the heirs and estate of the late CBS horse racing announcer Charles (Chic) Anderson.

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.

On May 25, 2012, a class action lawsuit was filed against Starbucks Corp. for failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles County, filed May 25, 2012). The suit claims that Starbucks had been selling food and drinks dyed red with an extract from pulverized beetle carcasses without disclosing it as required.

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

Robin Singh, founder and owner of TestMasters, one of the nation's largest LSAT test preparation companies, has filed suit in California state court against David Hall and his company, Velocity Test Prep LLC, for allegedly defrauding students preparing to take the LSAT.

A federal class action lawsuit has been filed against Duracell, Inc. and The Procter & Gamble Company in the United State District Court in California alleging that defendants engaged in a deceptive marketing scheme to mislead consumers as to the battery life of the Duracell Ultra Advanced and Duracell Ultra Power batteries.

Sandra Bullock has filed suit against ToyWatch USA and several vendors for using her image in a marketing campaign without her permission.

Two class-action lawsuits were filed on March 20, 2012, in response to changes to Google's privacy policies, which took effect March 1, 2012. David Nisenbaum, et al. v. Google, Inc., was filed in the Southern District of New York and Robert De Mars, et al. v. Google, Inc.

The Northern District of Illinois certified a class action lawsuit against Abercrombie & Fitch brought by unhappy shoppers.

Endorsers need to be careful about what they say about a product or service.

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

Facebook has agreed to settle FTC claims that it deceived consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing the information to be shared publicly.

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

By now, any company that provides consumers with terms and conditions covering the terms of sale should be aware of the Supreme Court's recent decision in AT&T Mobility LLC v. Concepcion. That decision, issued earlier this year, enforced an arbitration clause and a class action waiver provisions to prevent dissatisfied consumers from filing class actions or even suing at all.

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

A suggestion that all direct marketers should follow: when a disgruntled customer asks for a refund, give it.

Oregon has recently passed two new laws regulating free trial offers and negative option plans. The laws will go into effect January 1, 2012.

Jonathan I. Ezor, counsel to Olshan Grundman, was the featured source for a June 16, 2011 Mobile Marketing article by Chantal Mode discussing the proposed sale of patents owned by Nortel.

Andrew Lustigman will speak at the Networking DM Panel on Compliance and Regulatory Issues to take place in Whistler, British Columbia on May 3, 2011.

This telephonic update will summarize the significant developments in consumer protection law that occurred in February 2011.

Andrew Lustigman will speak at the 32nd Annual Promotion Marketing Law Conference in Chicago, IL on November 17-18, 2010.

Andrew B. Lustigman has been named by New York Super Lawyers - 2010 Metro Edition as a top attorney in their advertising law practice area.

On September 23, 2010, The Lustigman Firm, P.C. attorney, Sheldon Lustigman, will present with Len Gordon, Northeast Regional Director of the Federal Trade Commission at ACI's 4th Annual Focus on Sweepstakes, Contests and Promotions.

In the Global Business & Legal Seminars continuing legal education (CLE) seminar "Sweepstakes and Contests: All You Need To Know for Legal Compliance" Andrew B. Lustigman and Adam Z.

For the third consecutive year, Andrew B. Lustigman of The Lustigman Firm, P.C., has been named by the London-based Chambers & Partners as a Notable Practitioner in the field of advertising law.

On May 26, 2010, Andrew Lustigman will co-present at the ACI 4th National Advanced Forum on Financial Services Marketing Compliance on Alleviating Privacy Concerns Associated with Behavioral Targeting.

Andrew Lustigman to present on Sweepstakes and Contest Promotions on the Domestic and International Scene at the May 12, 2010 meeting of the International Intellectual Property Society.

Andrew Lustigman's CLE course "Rolling the Dice: Legal Issues Related to Sweepstakes and Promotions" is now live at

On April 8, 2010, Andrew Lustigman will Speak at the American Bar Association's 25th Annual Intellectual Property Law Conference: "Texting, Toggling, Tagging, Tweeting: Copyright, Trademark and Advertising in New Media" in Arlington, VA .

On February 10, 2010, Andrew Lustigman will participate at DMA's Mobile Marketing Day 2010 in New York as a panelist presenting on the "Legal Do's and Don'ts of Mobile Marketing".

This telephonic update will summarize the significant developments in consumer protection law that occurred in January 2010.

Andrew Lustigman will be speaking at the American Conference Institute's 23 rd National Advanced Forum on Advertising Law, being held on January 26-27, 2010, in New York.

On December 1, 2009, the FTC's newly revised Guides Concerning the Use of Endorsements and Testimonials in Advertising ( went into effect.

Andrew Lustigman's environmental marketing law CLE course is now available online through Lawline.

Andrew B. Lustigman and Sheldon S. Lustigman have been named by New York Super Lawyers - Metro Edition as two of the top attorneys in their practice area.

Andrew Lustigman will speak at the 31 st Annual Promotion Marketing Law Conference in Chicago, IL on November 5-6, 2009.

The Intellectual Property Law Special Committee on Promotion & Marketing Law, chaired by Andrew Lustigman, proudly presents its Fall 2009 Environmental Marketing Law Update Roundtable on September 11, 2009 at 12pm - 1:30pm in San Francisco, California.

Andrew Lustigman will speak on Complying With the New Regulatory Order: Changes in the Endorsement, Testimonial Guides and Green Guides.

Andrew Lustigman, member of The Olshan Firm, LLP., has been named an industry leader and notable practitioner in his primary practice area for the second consecutive year.

On May 11, 2009, Andrew Lustigman will be presenting on "Avoiding GREENWASHING Accusations on the Global Stage" before the International Intellectual Property Society in New York.

Andrew Lustigman to present on "Direct Marketing Enforcement - Emails, Mailings, and Telemarketing" at ACI's 3rd Annual Advertisers' and Marketers' Regulatory Summit to be held on June 25-26, 2009 in Washington, D.C.

ndrew Lustigman to present on "Recent Developments in Advertising and Claim Substantiation "at the Insight 6th Annual Cosmeceuticals" Conference on June 30, 2009 at the Marriott New York East Side in New York.

Andrew B. Lustigman will co-present on legal compliance matters at the "Mobile Marketing for Agencies and Media Buyers" event on April 28, 2009.

On March 11, 2009, Scott Shaffer participated as a panel member on a presentation concerning the negotiation of endorsements and sponsorship deals in professional sports.

On Thursday, February 26, 2009, Andrew Lustigman will participate as a panelist in the "Mobile Marketing and the Law" at DMA's Mobile Marketing Day.


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