how to handle a cease and desist - ad age mini law lesson

Mini Law Lesson: How to Handle a Cease and Desist

Brian Heidelberger bheidelb@winston.com

Info @ www.winston.com/bheidelberger

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)

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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

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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

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Step #3: Determine How Serious They Are

Who’s It From and What’s Their Standard M.O.?Competitor of AdvertiserCopyright/Trademark/Patent OwnerCelebrityFTC/State Attorney GeneralPlaintiff’s Class Action AttorneyScreen Actors Guild

Step #4: Determine How Serious They Are?

What’s Their Motivation?Just Put You On Notice/Reserve Their

RightsScare TacticTaking a Shot at Getting $$ from a

Deep PocketActually Stopping Your Advertising Securing Damages

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Step #5: Determine the Potential Damages and Legal Costs

• Monetary Penalties Fines Consumer Restitution Damages Profits

• Consent Order/Settlement Agreement• Legal Fees

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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?

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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

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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

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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

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Step #10: Be Happy There Are Only 9 Steps!

• Cross Your Fingers• Hold Your Breath • Never Speak of it Again

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