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    Marketing

 

  • Consultation for cases involving marketing misrepresentations, such as consumer credit complications, consumer fraud, data manipulation and misuse, deceptive internet marketing, false advertising, inaccurate claims for health products, privacy violations, unfair business practices, unsubstantiated business opportunities.

 

  • Assistance in FTC cases negotiating consent agreements, favorable no-dollar restitution settlements, reduced monitoring and reporting requirements.

 

  • Consultation to marketers for contests, promotions, ringtones, short message service (SMS) marketing, sweepstakes.

 

  • Compliance with the Restore Online Shoppers’ Confidence Act (ROSCA) prohibiting onerous contract requirements (such as automatic billing) and prohibitions (such as a prohibition against posting negative reviews) hidden within complicated legalese in online usage agreements.

 

  • Compliance with the California Online Privacy Protection Act (COPPA), Children’s Online Privacy Protection Act (COPPA), European Union (EU) General Data Protection Rule (GDPR), Gramm-Leach-Bliley Act(GLBA) (also known as the Financial Services Modernization Act).

 

  • General IP tasks, such as all forms of IP-related contracts and transactions, dealing with infringing competitors, developing an effective intellectual property plan for businesses and startups, protecting promotional materials from counterfeiters, protecting the primary IP rights (copyright, design rights, patents, trademarks), registration of copyrights and trademarks.

 

  • Familiarity with the California right of publicity statutes.

 

  • Compliance with Federal IP-related statutes and international conventions and protocols, such as the Anticybersquatting Consumer Protection Act (ACPA), Berne Convention, Defend Trade Secrets Act (DTSA), Economic Espionage Act (EEA), Federal Trademark Dilution Act (FTDA), Indian Arts and Crafts Act (IACA), Lanham Act (Trademark Act), Madrid Protocol, Paris Convention, Plant Variety Protection Act (PVPA), Prioritizing Resources and Organization for Intellectual Property Act (PROIPA), Semiconductor Chip Protection Act (SCPA), Trademark Counterfeiting Act (TCA), Uniform Trade Secrets Act (UTSA), United States (U.S.) Constitution.

 

  • Considerations regarding partnering with social media influencers to promote a brand or product, such as clearly and conspicuously disclosing the business relationship between the brand or product and the influencer, having a morals clause in the contract to allow immediate termination should the influencer engage in what the sponsor subjectively determines to be immoral behavior, having a termination clause in the contract that gives the sponsor the subjective right to terminate should the influencer engage in any type of behavior that may negatively affect the brand or product, identifying advertisements with the proper hashtag (such as #ad, #partner, #spon), providing clear guidelines to the influencer about the points the sponsor wants them to highlight and also the types of behavior that is unacceptable, using many “nano-influencers” (social media personalities with much smaller flocks of followers) rather than a few mega-influencers with millions of followers in order to both target the message more succinctly and avoid major public relations debacles should the influencer engage in unacceptable behavior.

 

  • Consultation to self-employed individuals in forming an S-corporation from which to pay themselves a reasonable low-bracket annual wage, and then take a distribution of the S-corporation’s entire net income after deducting the tax owed for the annual wage plus the self-employment tax.

 

  • Consultation regarding online reputational attacks and spreading false rumors through social media.

 

  • Consultation regarding the misrepresentation of the independent status of an online reviewer by coaching company employees about how to write favorable reviews of company products through setting up multiple online accounts on retailer websites selling the product, always posting 5-star reviews, disliking any negative reviews numerous times until they are removed and increasing the frequency of positive reviews for particular products chosen by company executives to boost sales through influencing.

 

  • Compliance with the California Business and Professions Code § 17940 bot law requiring online businesses in California that handle fewer than 10 million inquiries per month and which use bots (autonomous programs on a network or the internet that can interact with computer systems or users in an almost-human fashion, such as customer service chat-bots, and can be designed to respond or behave as a human responding to some query from another program or user in a manner advantageous to the author or controller of the bot) to respond to such inquiries to disclose the use of such bots to website users with clear and conspicuous disclosures.

 

  • Consultation regarding the knowing and purposeful use of date-bots, employees, false personal messages, false reviews and guaranties of satisfaction on dating sites to lure potential users into purchasing subscriptions and then making it extremely difficult for those users to cancel their accounts (by requiring the user to follow multiple links to numerous pages and then using language in the negative to trick the user into thinking the account was canceled when the user had in fact just extended the subscription), thus violating the Restore Online Shoppers’ Confidence Act (ROSCA).

 

  • Consultation regarding the use of “kidfluencers” (online influencers who specialize in attempting to influence children through reviews, videos or social media posts, to pressure their parents into purchasing certain products being pushed by the kidfluencer’s sponsor) without properly disclosing the paid relationship to the sponsor and without proper and conspicuous disclaimers, thus violating both FTC guidelines and ROSCA.

 

  • Consultation for litigation attempting to hold celebrities and promoters of subscription-only private events personally liable for public misrepresentations prior to the event intended to induce the purchase of subscriptions with promises of meeting and interacting with celebrities, first-class luxury accommodations and entertainment, none of which materialized at the actual event.

 

  • Typical startup tasks, such as capitalization compliance, crowdsourcing, non-disclosures, ICOs, intellectual property protection, internet law issues, marketing matters, partnership agreements, taxation, and other transactional matters.

 

  • Consultation regarding the alleged violation of the Computer Fraud and Abuse Act (CFAA) and the Federal Trade Commission (FTC) truth-in-advertising rules by having remote computers access computers with social media accounts to command those computers to access their social media accounts and then increase the likes for particular other accounts (“fake likes”).

 

  • Consultation regarding crowdfunders who collect funds online and then fail to use any of the collected funds to produce the product or event for which they requested funds, using the collected funds for their own personal purposes (thus violating FTC truth-in-advertising rules by not taking any reasonable steps to even attempt to fulfill their promises, even if they had endeavored to do so in good faith but had ultimately failed).

 

  • Consultation regarding Federal Trade Commission (FTC) “Made in the USA” and “assembled in the USA” guidelines.

 

  • Compliance with the Textile Fiber Products Identification Act (TFPIA),

 

  • Compliance with the online filing of Financial Crimes Enforcement Network (FinCEN) Form 114 Foreign Bank Account Report (FBAR), annual reporting requirement applicable to any US taxpayer with financial or signatory authority over any type of foreign financial accounts (such as any type of foreign investments, foreign checking accounts, foreign investment accounts, foreign life insurance, foreign mutual funds, foreign savings accounts, foreign trusts, inherited foreign accounts) in which the funds equal to or over $10,000 at any point during the prior year.

 

  • Typical cryptocurrency issues, such as arranging proper trade secret parameters for fintech startups and established businesses, complying with the legal parameters applicable to crowdsourcing initiatives leveraging digital currencies, developing tax-efficient cryptocurrency business structures, establishing blockchain-related and cryptocurrency-related businesses, filing all required tax returns to account for cryptocurrency gains, performing market research and analysis to compare performance with those of competitors, registering intellectual property for new blockchain and digital currency entities.

 

  • Consultation for cases involving injunctions against affiliate marketers using websites designed to look like legitimate and independent news reports or magazine articles about various products, and including fake endorsements on such websites allegedly from public figures in advertising campaigns.

 

  • Consultation regarding “stalking apps” that can secretly track people and access sensitive data, including physical locations and online activity, by running surreptitiously in the background, once users install such apps on their smart phones, thus violating the Children’s Online Privacy Protection Act (COPPA) and Federal Trade Commission (FTC) Section 5 marketing guidelines.

 

  • Compliance with the Children’s Online Privacy Protection Act (COPPA) for every application (“app”), plugin, software and website that may target children under 13 (based on advertising, age of the models, celebrities appearing on the digital platform, design, features, and subject matter), generally requiring parental consent for cookies, data collection and purchases.

 

  • Compliance with the COPPA requirements for parental or guardian permission before collecting any personally identifiable information (PII) from children, such as actual name, any type of media files containing a child’s image or voice, chat user name, email address, geolocation information, internet protocol (IP) address, instant messaging (IM) user name, residential address, screen user name, social security number, telephone number, tracking cookies, voice over IP (VoIP) address.

 

  • Compliance with the COPPA requirements for parental or guardian permission by direct notice from the parent to the entity attempting to collect children’s PII, such as emailed, faxed, mailed or scanned documents provided by the parent or guardian to the entity, or by the parent or guardian using a credit or debit card that provides notification of each separate transaction to the parent or guardian, or a phone call or videoconferencing between the parent or guardian and trained personnel of the entity.

 

  • Compliance with the COPPA requirements for a conspicuously-posted privacy policy on every type of digital platform attempting to collect PII from children, including specific elements such as the contact information for any third-party proprietors that may collect and store the data, instructions for how to delete any PII that may have been collected, instructions for how to deny any third-party access to any PII, the website operator's name and contact info.

 

  • Compliance with the COPPA requirements for all digital platforms that might collect PII from children to allow parents or guardians to opt-out or delete their children's PII at any time, implement and maintain high-end anti-hacking programs and measures in a good faith attempt to keep data safe, notify parents and guardians of procedure and policy changes, post conspicuous plain English privacy policies on their digital platforms, secure verifiable parental or guardian consent before collecting PII from children.

 

  • Compliance with the FTC guidelines requiring digital platforms to thwart attempts by children or identity thieves to fake parental or guardian consent by choosing an authentication method reasonably-designed with currently-available technology to ensure that the person giving consent is the child's parent or guardian.

 

  • Compliance with Federal advertising and marketing-related statutes for unfair or deceptive acts, methods of competition, such as the Children's Online Privacy Protection Act (COPPA), Computer Fraud and Abuse Act (CFAA), Consumer Review Fairness Act (CRFA), Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), Dietary Supplement Health and Education Act (DSHEA), Fair Credit Reporting Act (FCRA), Federal Trade Commission Act (FTCA) Section 5 (15 U.S. Code § 45), Gramm-Leach-Bliley Act (GLBA), Health Insurance Portability and Accountability Act (HIPAA), Lanham Act (also known as the Trademark Act of 1946), Nutrition Labeling and Education Act (NLEA), Restore Online Shoppers’ Confidence Act (ROSCA), Telephone Consumer Protection Act (TCPA)

 

  • Typical noncompliance issues encountered, such as “advertorials” (advertisements disguised as editorial content), attempting to prevent users from posting negative reviews through gag clauses in end user license agreements (EULAs), camouflaging disclaimers in pop-up banners that might be blocked by browser ad blockers, crowdfunding abuse (such as commencing a project then suddenly abandoning it without making restitution), false claims, failure to monitor what affiliated marketers may be doing to promote your band, failure to use the proper hashtags (or any hashtags) on social media to identify advertisements, hiding plain text disclosures or the links thereto in unobtrusive places on a website, mischaracterization of results (such as claiming that the results of one success story are typical), misuse of user data (such as selling it without permission from all the users who generated that data), native advertising (having an advertisement match the look, feel and function of the media format in which it appears), negative options (framing language in such a way as to confuse a user into actually signing up for a service by appearing to decline it), negligence in website security, nondisclosure of material relationships involved in promotions (such as between the manufacturer and the advertiser or between the spokesperson and promoter), paying people who have never used the product to write favorable reviews, price anchoring (comparing a cheaper product to more expensive ones, implying that all are equal except for price), reputational misappropriation, using fake news or review sites to promote products or services, unsubstantiated claims about product performance.

 

  • Compliance with the data privacy parameters of the Gramm-Leech-Bliley Act (GLBA) – Also known as the Financial Modernization Act – (15 U.S.C. Sections 6801-6809), requiring legal entities that collect or store users' financial information (including credit card numbers) to implement heightened security measures to ensure the data stays safe, and also requiring various consumer reporting, notification, and opt-out requirements.

 

  • Compliance with the European Union (EU) General Data Protection Rule (GDPR), applying to any digital platform throughout the world that interacts with any digital platform within the EU, and requiring all such digital platforms to provide certain information to users upon request, and also has various data collection and deletion standards, and resulting in the necessity for all such digital platforms to update their privacy and cookie policies, and is primarily concerned with demographic data (such as ethnicity, race, and sexual orientation), health data (such as biometrics and genetics), identity data (such as addresses, names, various identification numbers associated with particular individuals), internet data points (such as cookies, IP addresses, geolocation indicators), political data (such as political and societal affiliations and opinions).

 

  • Compliance with the data privacy provision of the Health Insurance Portability and Accountability Act (HIPAA), applying to any digital platform that may the collect or handle any protected health information (PHI), such as any dates relating to a patient's illness or care, any unique identifying account or number, birth dates, contact information, death dates, facial imagery, fingerprints, medical records information, names, photographs, Social Security numbers, telephone numbers, treatment dates, voice recordings, x-rays.

 

  • Compliance with the California Online Privacy Protection Act (COPPA), applying to any digital platform that may interact with any digital platform in California that may collect PII or generates revenue by any method (such as advertising).

 

  • Familiarity with the Supreme Court South Dakota v. Wayfair decision, which eliminated the nexus standard (previously, an online retailer could only be charged state sales taxes if such retailer maintained an actual physical presence in the state), thus allowing all states to charge sales taxes to any digital platform or user (regardless from where it originated) that had some interaction with a digital platform or user within the state.

 

  • Familiarity with post-South Dakota decision tax consequences for online affiliate marketers: affiliate marketers must continue to need to pay sales taxes in states where they have a nexus (physical presence); having only a warehouse or shipping vendor in a state qualifies as a sufficient nexus, and thus subject to sales tax; 45 states and the District of Columbia now have some type of sales tax requirement for online affiliate marketers; e-commerce businesses and some individual online sellers need to register in every state in which they must remit sales taxes, or be penalized; the Federal government gives states information about what affiliate marketers are doing business where.

 

  • Typical privacy and data security issues, such as affiliate marketers, affiliate networks, blockchain, collection of PII, commercial transactions, cloud security, cross-border data transfers, data storage, data warehousing, disclosure, email marketing, encryption, information handling, privacy and data security litigation, privacy policy, privacy procedures, security breaches, telemarketing.

 

  • Familiarity with defamation (the act of making a false statement in a way that can detrimentally impact the revenue of a company or individual) and the elements required to prove defamation: the statement is false; the statement was the cause of a company or individual having a financial loss; and, the person making the statement is doing so for the express purpose of causing a financial loss to another, or knows that a financial loss could be the result of the statement.

 

  • Recommendations to improve website security for e-commerce considerations, such as credit card fraud, data protection, online privacy, product liability.

 

  • Recommendations against using negative options (confusing language framed in the negative so that if a user declines the option, the user is actually agreeing to the option) and “free trials” (in which the user is automatically enrolled, and their credit card is charged at the end of the trial period and automatically renews at the end of any subscription period unless the user takes some form of preventative action, either on the website, or if that is not an option, then with the appropriate authorities) on websites, which can be violations of the FTC marketing guidelines and truth-in-advertising guidelines as well as ROSCA.

 

  • Experience with advertising, compliance, copyright, digital media, domain names, ecommerce, Federal Trade Commission (FTC) and state Attorney General investigations and lawsuits, intellectual property, internet, internet advertising and marketing, internet data security and privacy, internet promotions and sweepstakes, marketing, regulatory compliance, social media, spam-related law compliance, telemarketing, trademark.

 

  • Consultation regarding “Assembled In The USA”, audits for websites and mobile apps, Business Opportunity Rule, call center compliance, claim substantiation, consumer protection, contests, data security, dietary supplements, direct marketing, disclosures, due diligence, endorsements, influencer campaigns, internet advertising and marketing, labeling requirements, landing pages, lead generation, “Made In The USA”, marketing materials, mobile marketing, native advertising, nutraceuticals, pre-sale pages, privacy, promotions, publicity rights, Restore Online Shopper's Confidence Act (ROSCA), spam, subscription-based businesses (SBBs), sweepstakes, telemarketing, Telemarketing Sales Rule (TSR), Telephone Consumer Protection Act (TCPA), third-party liability, textiles.

 

  • Consultation regarding affiliate marketing, blockchain, browsewrap, Canadian Personal Information Protection and Electronic Documents Act (PIPEDA), California Consumer Privacy Act (CCPA), Children's Online Privacy Protection Act (COPPA), clickwrap, cookies, corporate policies, cryptocurrency, data security, digital currency, digital media, distributed ledger, domain names, e-signatures, ecommerce, Electronic Signatures in Global and National Commerce Act (ESIGN), email marketing, encryption, end user license agreement (EULA), European Union (EU) General Data Protection Regulation 2016/679 (GDPR), French Law Act No.2002-303, dated March 4, 2002 and accreditation procedure mandated by Decree No. 2006-6, dated January 4, 2006, International Organization for Standardization (ISO) 27000 series guidelines – also known as the International Electrotechnical Commission (IEC) IEC Information Security Management Systems (ISMS) Family of Standards – internet, internet advertising and marketing, internet promotions and sweepstakes, National Institute of Standards and Technology (NIST) security guidelines, New York State Department of Financial Services (NYDFS) Cybersecurity Regulation 23 NYCRR 500, online lead generation online privacy, personal data (the EU equivalent of the term personally identifiable information – PII – in United States jurisdictions), personally identifiable information (PII – in United States jurisdictions), social media, spam, training, website audits, Written Information Security Plans or Programs (WISPs).

 

  • Consultation regarding administrative actions, affiliate marketing, asset freezes, civil investigative demands (CIDs), consumer protection, corrective action plans and reporting requirements, deceptive advertising, FTC advertising and marketing compliance and guidelines, investigation hearings, receiverships, state Attorneys General (AG) investigations, and unfair, deceptive or abusive acts or practices (UDAAP).

 

  • Consultation regarding affiliate marketing, business formation, commercial transactions, data protection, ecommerce, email marketing, internet advertising, internet defamation, online fraud, online privacy, performance marketing, service agreements, social commerce, website agreements.

 

  • Consultation for actions involving the American Arbitration Association (AAA), arbitration, business disputes, Children’s Advertising Review Unit (CARU), claims substantiation proceedings, collections, commercial litigation, deceptive and false advertising and marketing, do not call (DNC) telemarketing, Federal Trade Commission (FTC) investigations, infringement (copyright, patent, trade secrets, trademark), internet advertising and marketing, JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc.), Lanham Act unfair false advertising and competition, mediation, motions to quash subpoenas, National Advertising Division (NAD), National Advertising Review Board (NARB), short message service (SMS) telemarketing, spam-related prosecutions, telemarketing, Telemarketing Sales Rule (TSR), Telephone Consumer Protection Act (TCPA).

 

  • Consultation regarding consumer dispute resolution, home improvement contractor (HIC) issues, license reinstatement, license revocation, New York City Department of Consumer Affairs (NYC DCA) enforcement and investigations, New York City Office of Administrative Trials and Hearings (NYC OATH) hearings, New York State Division of Consumer Protection (NYS DCP).

 

  • Consultation regarding acceptable use policies, affiliate marketing programs, corporate policies (such as privacy, social media), terms of use, various agreements – advertiser, call center, call transfer, co-registration, confidentiality, data sharing, data use, direct marketing, email marketing, email management, hardware, infrastructure as a service (IaaS), internet service provider (ISP), list management, mobile application development, non-compete, non-disclosure (NDA), pay-for-performance (PFP) advertising, pay-per-call (PPC), performance marketing, publisher, software as a service (SaaS), software development, technology development, technology licensing, technology marketing, telemarketing, teleservice, trade secrets.

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  • Typically-problematic issues with online marketing, such as the increased expense for additional keywords, qualifying the traffic, ads on the search engine results page (SERP) may look too similar.

 

  • Performs website marketing optimization marketing tasks, such as analyzing the click-through rate (CTR), carefully-tracking the website cost per acquisition (CPA), choosing brand-related keywords, conducting research on competitors, designing each ad to target specifically the searcher's readiness to act, drafting a carefully-worded call to action (CTA) increasing lead volume (for example, by placing an inquiry form on each page, or at least a link thereto), more-efficient use of expanded text ads and updating previous ads on the SERP, optimizing the conversion rate (CR), optimizing the website logger to track every action a user takes in the specific order it is taken, organizing and prioritizing key performance indicators (KPIs), prioritizing sales calls and online responses, providing an online chat system, using geo-targeting and income-based targeting, using video on pay-per-click (PPC) landing pages, using all audible and visual means (background music, banners, colors, images, words) to make the particular brand memorable, utilizing all possible ad extensions.

 

  • Consultation for the use of effective online marketing techniques, such as authoring a concise business plan prior to creating the website, becoming active in trade-related associations, choosing the right infrastructure for an online presence, cultivating referral sources, exclusive use only of content that can be tracked through website analytics, marketing new products to an appropriately-targeted audience (such as past or present customers), spending a set amount of time each week to on person-to-person business development, structuring the content on the website to synchronize with a pre-established business plan has been business plan, targeting potential income-producing customers directly (for example through the use of direct email marketing), tracking all activities on the website, using high-quality content (animated images, static images, music, text-based animated, text-based static, video) without being redundant or overwhelming.

 

  • Uses analytics sites to determine the relative costs for each particular keyword that may be used in a web site, before incorporating that keyword.

 

  • Consultation regarding non-paid methods to increase traffic to a website, such as building meaningful personal relationships with potential and present customers, creating and promoting educational content and posting it appropriately, cultivating online reviews (for example from peer-review websites), designing a quality website that reflects the values projected by the brand and strong SEO (both external and internal) and quick response (QR) codes where appropriate, knowing the target audience by differentiating the particular brand from others as often as possible, encouraging word-of-mouth recommendations from satisfied customers, increasing name recognition though directory listings, multiplying referrals through personal interaction with the original referrers, projecting a thought-leader image through insightful posts on feeds and blogs, securing referrals from relevant individuals and entities, taking advantage of free online marketing options (for example ratings sites catering to the category of the particular brand), utilizing social media and podcasting opportunities, utilizing targeted digital advertising campaigns,

 

  • Use of deconstruction forensic analysis for legal audits of marketing campaigns to determine compliance with international, national, and state advertising, marketing and promotional laws.

 

  • Consultation for defending businesses and individuals for Federal Trade Commission (FTC) investigations and actions.

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    Last updated 200515_0957

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