Background - Practices (Details)

Advertising & Media

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Crowell & Moring's Advertising & Media Group offers a holistic, business-oriented approach in identifying and navigating the legal risks of advertising, marketing, distribution, and sales in today’s dynamic world of advertising and digital media. Emerging technologies and tactics are changing the way companies are marketing their products and services to customers, and we provide the legal insight to ensure the viability of advertising campaigns, distribution models, and measurement programs. Our team of lawyers and policy professionals guides businesses in the advertising, media, consumer product and publishing industries through the complex regulatory regimes to successfully promote their products in the United States and internationally. We also advise clients in all types of litigation cases, including false advertising disputes. We work closely with the firm’s Advertising & Product Risk Management Practice, whose focus is on helping clients bring their products to market. 

Our cross-disciplinary team includes leaders of the bar who have worked in all aspects of the advertising and media ecosystem. Our lawyers and policy professionals come from our offices across the United States, as well as in Europe, and they include former high-level U.S. government officials at the Federal Trade Commission and state attorneys general, corporate lawyers from leading fashion houses, and nationally recognized litigators in advertising litigation and consumer protection. Working side-by-side with corporate counsel and marketing departments, our team advises on the full spectrum of business and legal challenges arising in the advertising and media arena.

Advertising Campaigns & Transactions

Crowell & Moring’s team of advertising lawyers counsels practitioners as they develop advertising campaigns, promotions, and marketing strategies in traditional and new/advanced media. We work with our clients to ensure that their promotions and ads – wherever they run, online or offline – comply with network and platform standards, state and federal laws, industry guidelines, and best practices. We are at the forefront of the latest trends in digital media and emerging technologies, and we help brands put together innovative and modern solutions to distribute their messages. We help clients craft loyalty programs, gift cards, sweepstakes and contests, and other promotions that comply with applicable regulations. In addition, our lawyers negotiate and draft agreements to help our clients protect themselves as they engage with ad agencies, media agencies, celebrities, social media influencers, and other key players. 

We help clients manage all aspects of their advertising campaigns, brand content production, and media investments. We negotiate advertising and media agency agreements with a focus on ensuring transparency and crafting innovative compensation models. We advise our clients at every stage of the life cycle of commercial production and distribution, including campaign ideation, talent negotiation, SAG/AFTRA, content licensing and clearance, and media strategy and placement. Our team is well-versed in the cutting-edge issues facing marketers today, including native advertising, real-time marketing, sponsored and co-produced content, use of consumer reviews, and testimonials and endorsements. We negotiate sponsorship, promotion and naming rights deals with sports leagues and teams, athletes, entertainment properties, music artists, celebrity chefs and many others. We work alongside our firm’s high-profile Privacy & Cybersecurity team to remain at the forefront of the latest trends in digital media and emerging technologies in order to help brands develop innovative ways to deliver their messages while avoiding unnecessary legal risk. Armed with deep industry knowledge and a tested awareness of the need for practical advice, our driving goal every day is to add real value and help reduce risks where brands are investing their marketing and media dollars.

Representative Engagements

  • Represented the world’s largest hotel chain negotiate its global media agency agreement and implement media transparency practices.
  • Represented one of the world’s leading auto manufacturers to launch an innovative P2P car sharing platform.
  • We are regularly on the front lines of the digital video revolution. On behalf of leading retail, fashion, food, appliance and technology brands, we help secure rights to produce and use digital content and talent through forward-thinking negotiation with sports and entertainment properties, unions, networks and publishers. 

Advertising Disputes & Litigation

Our advertising lawyers advise clients in all types of disputes related to both traditional and new media platforms. Many of our clients do business in highly competitive categories, where advertising is a critical driver of growth and share. We advocate for some of the world’s most recognized brands across a wide range of industries on both sides of competitive advertising challenges. Our lawyers have handled some of the most significant advertising disputes in federal court under the Lanham Act, and we have handled numerous National Advertising Division (NAD) challenges—many more than most law firms. We have a deep track record in defending against consumer class actions, particularly relating to foods, drugs, and personal care and consumer products. Adding to the mix, our firm’s illustrious antitrust and competition practice provides insights and strategies to deal with anticompetitive behavior in the market, such as tying, predatory pricing, and monopolistic or exclusionary behavior—offering solutions that some other firms might miss. 

Representative Engagements

  • We helped the world’s biggest telecommunications company respond to a multi-pronged attack by competitors on its service reliability, achieving a series of decisions that curtail misleading claims.
  • We helped an iconic maker of diapers defend its claim to offer unique performance for newborn diapers, carving out a unique niche in the market.
  • On behalf of a famous online retailer of medical devices, we crafted a regulatory strategy that helped maintain its preeminent position while ensuring that lower-cost and potentially unsafe competition could not unfairly encroach.

Ad Claims Development, Risk Prevention & Counseling

Our lawyers have decades of experience advising leading companies in developing support for major advertising campaigns. We know the testing standards, relevant statistics, and research methods. We work with the country’s leading experts in consumer research, sensory science, and economics. We are regularly invited to teach these subjects at industry conferences and in-house seminars. We provide advice on warranties and limitations of liability by contract. We advise regarding litigation risk, new product and distribution counseling, and supply chain management strategies. We provide customized audits, trainings and workshops to partner with our clients in their efforts to identify, assess, and mitigate risk in their businesses.

Media Valuation and Measurement

We work with clients to properly value television programming, advertising and other content. We represent commercial broadcasters in copyright royalty and rate setting litigation at the U.S. Copyright Office and in recovering unpaid rebates and fees from advertising agencies on behalf of brands. We incorporate key tools into agreements to ensure that advertising views are correctly measured and that the media agencies our clients work with are well-equipped to root out fraud. We partner with Crowell & Moring’s Cyber & Privacy and Investigative teams to jointly approach prospective clients to develop programs to investigate and combat ad fraud, and to pursue recovery when fraud is discovered.

Trademark & Brand Protection

Our Advertising & Media Group leverages our IP capabilities where it intersects with advertising, sales and e-commerce, including trademark, copyright, counterfeiting and gray-market goods. For example, not only do we review trademarks for clearance purposes, but we also counsel clients on whether trademarks may communicate advertising claims. Our lawyers work closely with clients to structure and negotiate transactions at the nexus between content and technology, including digital content licensing, digital distribution agreements, deals for branded entertainment, mobile payments, targeted behavioral advertising and social media. 

Our Team

Our team has represented clients from industries across the spectrum, including automotive, hospitality, media and telecommunications, wireless, retail, fashion, food and beverage, home appliances, software, and financial services, as well as major sports leagues and teams, individual athletes, musicians, and entertainment professionals. We have also advised the world’s leading search engine, social media, and traditional media digital platforms. Our attorneys have deep experience in:

  • Advertising recovery and litigation
  • Anti-money laundering
  • Antitrust and competition analysis
  • Platform competition
  • Corporate and transactions (including contract negotiations)
  • False advertising
  • Fraud and abuse
  • Intellectual property and licensing
  • International trade
  • Internet and mobile regulation
  • Licensing and distribution agreements
  • Privacy and cybersecurity
  • Product liability
  • Regulatory compliance, state and federal

Our lawyers regularly contribute to the advancement of advertising and media law, serving on the American Bar Association Section of Antitrust Advertising Disputes and Litigation Committee, Consumer Protection Committee, and Media and Technology Committee. We have several recent former officials of the FTC on our team. We regularly speak and write on issues arising within the ad-funded internet, including native advertising, antitrust and sports law, bots, cryptocurrency pyramid schemes, keyword research tools, social media influencers and disclosure practices, advertising liability, and e-mail marketing.

Our Services

Our team works with clients to navigate the full range of regulatory, litigation, and transactional concerns facing digital advertising today, including:

  • AdTech negotiations and deals
  • Advertising fraud
  • Behavioral and native advertising counseling
  • Data privacy, security, analytics, and optimization
  • Digital ad fraud protection
  • Direct-to-consumer campaigns
  • Disclosures
  • Consumer financial regulations
  • Cryptocurrencies and digital payment systems
  • eCommerce
  • Media agency agreements
  • Net neutrality
  • Payment platforms and intermediaries
  • Sponsored content
  • Talent and spokesperson engagements
  • Traditional advertising and promotions
  • Vendor and outsourcing agreements
  • Venture development and affiliate networks

We help clients resolve business, consumer, and governmental disputes in proceedings before key federal and state regulatory and law-enforcement agencies and industry self-regulatory bodies, including the:

  • Federal Communications Commission (FCC)
  • Federal Trade Commission (FTC)
  • Electronic Retailing Self-Regulation Program (ERSP)
  • National Advertising Division (NAD) of the Council of Better Business Bureaus (CBBB)
  • National Advertising Review Board (NARB)
  • State attorney general offices

We understand the importance of our clients’ brands and help them address circumstances—including poorly reviewed or unmonitored placement of ads on their websites—that might communicate support for opinions, groups, and activities that do not comply with their core values and missions.

Global Reach. Through our Brussels and London offices, we work closely with our clients to ensure that they are aware of EU regulations both before market entry and post-market. Our Brussels office was recently recognized by Chambers Europe for Media and Telecommunications and by Legal 500 in Tier 1 for both Media and Entertainment, which describes the team as “amazing” and “thoughtful.” Our Brussels team is also Tier 1 rated in the categories of Privacy and Intellectual Property.

Through Crowell & Moring International, the firm’s international trade consultancy, we can extend our clients’ efforts to affect policy and navigate market entry around the globe. CMI has particularly deep experience in the APEC region, and is a widely known authority at working with governments and NGOs to develop and implement advertising and self-regulatory policies.