how to handle a cease and desist - ad age mini law lesson
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Mini Law Lesson: How to Handle a Cease and Desist
Brian Heidelberger [email protected]
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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