How to Handle a Cease and Desist - Ad Age Mini Law Lesson

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How to Handle a Cease and Desist - Ad Age Mini Law Lesson

  1. 1. Mini Law Lesson:How to Handle a Cease and Desist Brian Heidelberger bheidelb@winston.com Info @ www.winston.com/bheidelberger
  2. 2. IMPORTANT DISCLAIMER• I am not your attorney.• This is not legal advice.• But I hope we can still be friends.  (offer not valid in AL and HI) 2
  3. 3. Step #1: Don’t Freak Out!• Almost All Cease and Desist Letters Don’t Result in a Lawsuit• Many Cease and Desist Letters Don’t Cost Big Money to Resolve 4
  4. 4. Step #2: Get Organized• Get All Documents and Correspondence• Check Your Insurance Coverage and Put Your Insurance Company on Notice (if the claim is serious enough)• Watch What You Say in Email• Call a Lawyer 6
  5. 5. Step #3: Determine How Serious They AreWho’s It From and What’s Their Standard M.O.? Competitor of Advertiser Copyright/Trademark/Patent Owner Celebrity FTC/State Attorney General Plaintiff’s Class Action Attorney Screen Actors Guild
  6. 6. Step #4: Determine How Serious They Are?What’s Their Motivation? Just Put You On Notice/Reserve Their Rights Scare Tactic Taking a Shot at Getting $$ from a Deep Pocket Actually Stopping Your Advertising Securing Damages 9
  7. 7. Step #5: Determine the Potential Damages and Legal Costs• Monetary Penalties  Fines  Consumer Restitution  Damages  Profits• Consent Order/Settlement Agreement• Legal Fees 11
  8. 8. Step #6: Determine the Potential Business Implications?• How Long Does the Campaign Have Left to Run?• How Much Will it Cost to Change?• How Upset Will Your Client/Boss Be?• Are You Covered by Insurance and What’s the Deductible?• What’s the PR Implications of a Change and/or Lawsuit? 12
  9. 9. Step #7: Determine Who’s Ultimately Responsible?• The Agency?• The Client?• A Third Party Vendor ?  Subcontractor  Music/Photo licensor  Production company• The Answer Lies in Your Contracts 14
  10. 10. Step #8: Decide How to Respond?• Three Options  Ignore  Call ‘Em  Write Back and Tell Them Why they Are Wrong  Agree to Cease and Desist and Agree to Their Additional Legal/Financial Demands• May Ultimately Be a Combination of All Three 15
  11. 11. Step #9: Realize Even The Best Lawyers Can’t Always Prevent a Lawsuit• Make Sure All your Contracts Are Reviewed• Check Your Insurance Coverage• Make Sure Your Deductible Works for You• Make Certain All Risk Decisions Are Elevated to the Right People 16
  12. 12. Step #10: Be Happy There Are Only 9 Steps!• Cross Your Fingers• Hold Your Breath• Never Speak of it Again 17

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