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Program Description

Sweepstakes, Promotions & Marketing Laws: Comprehension & Compliance in a Digital/Mobile Environment




Approved for CLE credit in: AK,AZ,CA,ME,MO,ND,NJ,NY,VT,WV

More and more companies are using promotional tools including sweepstakes, skill contests, and hybrid versions thereof. The rise of social media, user-generated contests and mobile marketing vehicles, with their rapidly changing rules on children’s marketing, and privacy issues raise thorny questions for the practicing bar.

In this program, experts in the field will address the critical issues that arise when offering games and other promotions relevant to today’s marketplace. Topics to be discussed include the laws governing sweepstakes and skill contests, social media, mobile marketing, drafting official rules and disclosures, use of intellectual property, and the gift-card/coupon interface.

This program was recorded on May 16, 2014.

Provided By: New York City Bar

9:00 am - 12:45 pm
  • Sweepstakes Skill Contests - Compliance on New & Existing Platforms
  • Social Media Interface with Advertising & Privacy
  • Big DATA & Targeted Advertising: A New Paradigm?
  • Blogging, Tweeting & the FTC Endorsement Guides
  • Mobile Marketing, Apps & Telemarketing
  • Video Games and Promotions
  • COPPA Expanding
  • Loyalty Programs & Gift Cards
  • Q&A

Recorded: May 16, 2014
Runtime: 3 hours 44 minutes

CLE Credit Information

Click on the state abbreviation to find the CLE Credit Information for your state.

This program is has been approved for credit in AK,AZ,CA,ME,MO,ND,NJ,NY,VT,WV

Experienced attorneys only (non-transitional)

Similar Programs

No related programs information available.

Panelist Biographies

Melissa Landau Steinman

Venable LLP

Melissa Landau Steinman is a partner in Venable’s Regulatory Group, focusing on advertising, marketing and new media, as well as distribution antitrust. She works with clients from every sector of industry at every stage of distributing consumer products and services, counseling some of the nation’s largest CPG brands, retailers and technology companies on advertising and promotions, distribution, pricing, warranties, product safety and other matters. She has represented clients in both private and government litigation, and also has appeared before self-regulatory bodies such as the National Advertising Division of the Better Business Bureaus. Ms. Steinman has extensive experience in consumer promotions law, with specialized expertise in social media, gift cards, incentives and loyalty programs, and sweepstakes and contests law. Her unusual depth of experience with prize promotions combines knowledge of the law of promotions, electronic media, regulatory law and issues such as privacy and intellectual property, and Ms. Steinman has worked on a diverse range of gaming issues relating to matters ranging from game shows to video gambling to social media and text messaging promotions.

In addition, Ms. Steinman has worked extensively with clients seeking to create gift card programs or to address the compliance issues that may arise in connection with those programs. Ms. Steinman is a frequent lecturer and writer on topics relevant to promotions and advertising law, particularly social media, prize promotions and gift card topics. She contributed chapters to the American Bar Association's update of its Consumer Protection Law Handbook and the Promotion Marketing Association's treatise on Promotion Marketing Law, and her commentary on social media, sweepstakes and other promotional activities has appeared nationally in publications as prominent as the Los Angeles Times. Ms. Steinman wrote and edited the "Guide to Federal and State Regulation of Advertising," a comprehensive two volume book on the law of advertising and promotions. She also wrote the social media and charitable sales promotions chapters for an upcoming ABA Handbook on advertising claims substantiation. Ms. Steinman received her J.D. from Harvard Law School and her A.B. cum laude from Columbia University.

Brian Nixon

Loeb & Loeb LLP

Brian Nixon's practice focuses on the nexus of emerging technology, retail financial services and communications. He is with Loeb & Loeb LLP in the Washington D.C. office. Mr. Nixon counsels clients ranging from start-ups (including social media platforms and emerging media ventures) to Fortune 500 companies on matters involving mobile commerce, gift card program design and execution, privacy issues, mobile apps, software development, technology and outsourcing, advertising service agreements and content license agreements. Mr. Nixon has handled all aspects of drafting and negotiating agreements in and related to these matters, as well as marketing, merchandising, publishing, promotions, media, sponsorships, entertainment, branded and integrated marketing and social media. Additionally, Mr. Nixon has experience in the development and offering of virtual currencies, mobile payments, online payments, peer-to-peer payments and prepaid programs.

Holly Melton

Manatt, Phelps & Phillips, LLP

Holly Melton is counsel in Manatt's Advertising, Marketing & Media practice and is based in the New York office. Ms. Melton advises advertising, marketing and consumer goods and services companies in complex litigation and regulatory matters, with a particular emphasis on initiating and defending against false advertising and unfair competition actions. She represents clients in class action litigation, arbitrations and proceedings before the National Advertising Division of the Council of Better Business Bureaus, and she also assists in responding to governmental investigations, including state attorneys general and the Federal Trade Commission. Prior to joining Manatt, Ms. Melton was an associate in a New York City law firm, where she assisted on a broad range of commercial litigation matters relating to complex contractual disputes and business torts, including false advertising and unfair competition and related claims.

Andrew B. Lustigman

Olshan Frome Wolosky LLP

Andrew B. Lustigman is a partner in the New York office of Olshan Frome Wolosky LLP. He represents marketers, advertisers, and traditional and digital agencies and suppliers in connection with the legal aspects of their advertising and promotional marketing businesses. Indeed, Chambers USA reported that Mr. Lustigman Lustigman was cited by clients as "pragmatic and always looking for solutions that meet a specific client's needs." Leveraging his extensive experience in advertising, marketing and promotions, Mr. Lustigman counsels clients regarding a broad range of matters, including the clearance of advertising and marketing materials, the structuring of sweepstakes, games of skill, and other contests, the development of social media programs and direct marketing campaigns from a compliance standpoint, and the resolution of regulatory, competitor, intellectual property and privacy matters. According to Chambers USA, clients report, "He's the one guy in the industry I'd go to. Every single issue in advertising, compliance, litigation, whatever — he does it all, and he does it well." A significant portion of Mr. Lustigman’s practice involves review of advertising and promotional campaigns to help ensure compliance with substantiation requirements and relevant legal standards. He provides advice for campaigns across all media channels — Internet, television, print, radio, direct mail, mobile, telemarketing, and other electronic media, as well as social media platforms. Mr. Lustigman regularly represents clients in advertising-related investigations and litigation brought by federal and state regulatory agencies, including the Federal Trade Commission, the Food and Drug Administration, Federal Communications Commission, the United States Postal Service, the United States Senate, state attorneys general and other governmental organizations. He also handles individual consumer, consumer class action, and related commercial litigation involving false and deceptive advertising issues, intellectual property, and corporate matters. He advises clients on strategies to address emerging threats and on creative and aggressive defense theories. In prosecuting and defending his clients’ interests he frequently appears in federal and state court and before the National Advertising Division of the Better Business Bureaus.

Sean F. Kane

Frankfurt Kurnit

Sean F. Kane is a partner in the Interactive Entertainment Group at Frankfurt Kurnit, where he represents a variety of companies in the video game and social media industries. Mr. Kane’s clients often are on the cutting-edge of media, content and technology creation where rapid innovation is leading to the birth of new products, companies and industries. He has considerable experience negotiating licenses, developer and publisher agreements, as well as, protecting the intellectual property rights of video games and related social media applications, including trademark and copyright protection, clearance and enforcement. Mr. Kane has worked at the forefront of the interactive entertainment industry for the past decade and has represented clients on transactional matters involving various business segments, such as console and PC video games, virtual worlds, online gaming, social gaming, mobile and tablet gaming, virtual currency, mobile apps, social media, computer software and the Internet. Mr. Kane’s clients range from start-ups to the largest developers and publishers in the video game industry. He counsels and works with clients to structure, negotiate and implement complex content acquisition, development and distribution deals. Mr. Kane regularly advises clients on licensing, co-branding, consulting, advertising, content monetizing, publishing and distribution transactions. He also has considerable experience litigating complex business and intellectual property disputes in federal and state courts at trial, appellate levels and in ADR forums throughout the country. Mr. Kane is a frequent speaker on video game panels and seminars on behalf of organizations such as: Law Seminars International, Practising Law Institute, Game Developers Conference, LOGIN, RSA, Digital Hollywood, NY Games and the American Bar Association. Mr. Kane is frequently quoted by the media and has written extensively on legal topics relating primarily to intellectual property and entertainment issues.

Edward M. Kabak

Chief Legal Officer
Brand Activation Association

Edward M. Kabak is the Chief Legal Officer of the Brand Activation Association. Kabak is an experienced attorney who has practiced extensively in several areas including: direct marketing, promotional and advertising law, communications, corporate law and intellectual property, compliance with federal and state regulatory agencies and litigation management as well as international law, mergers and acquisitions and the law of the Internet. Mr. Kabak is the head of the Program Committee for the PMA Annual Law conference, acknowledged as the marketing law industry’s leading law conference. Mr. Kabak was previously vice-president, secretary and general counsel of Grolier Inc., the direct marketing and publishing arm of the Lagardere Group, an international publishing/marketing and high-technology firm based in France. Kabak has spoken extensively, including at the FTC public workshops, on sweepstakes/games and contests, rebates, advertising, the law of the Internet, regulatory, judicial and legislative and other legal issues. He is a member of various Bar organizations and is a graduate of Columbia College, a Harlan Fiske Stone scholar and cum laude graduate of Columbia Law School. He has published materials in various media including the op-ed page of The N.Y. Times and various magazines and is also a poet and an inventor of word games.

Allison Fitzpatrick

Davis & Gilbert

Allison Fitzpatrick is a partner in the Advertising, Marketing & Promotions Practice Group of Davis & Gilbert. She represents advertisers, media companies, advertising agencies and promotions agencies in connection with all aspects of advertising, marketing, promotions and entertainment. Ms. Fitzpatrick frequently counsels clients on new media issues, including with respect to social networking, user-generated content, mobile marketing and other emerging media. She develops clients’ blogging and social media policies and procedures and reviews clients’ social media campaigns to ensure compliance with the Federal Trade Commission’s Endorsement Guides and .com Disclosure Guides. Ms. Fitzpatrick also speaks about and advises clients on all aspects of children’s advertising and privacy, including compliance with the Children’s Advertising Review Unit’s Self-Regulatory Guidelines and the Children’s Online Privacy Protection Act (COPPA). She routinely reviews websites, apps, privacy policies and promotions to ensure compliance with COPPA and other privacy laws. She has represented clients in proceedings before the Children’s Advertising Review Unit and the National Advertising Division and in state regulatory investigations, including comprehensive multi-state actions, most notably in connection with negative option marketing and free trial offers.

In addition, Ms. Fitzpatrick has significant experience in the area of sweepstakes and promotions and advises clients on games of chance, complex skill contests, rebates, gift cards, and coupons, including on Facebook, Twitter, Pinterest, Instagram and YouTube for agency clients, as well as directly for many well-known companies. She regularly counsels clients on all aspects of promotions, including with respect to drafting and reviewing their rules, and any prize supplier and promotional agreements, and winner affidavits and notifications. Ms. Fitzpatrick has also developed a number of loyalty/reward programs for clients. Ms. Fitzpatrick regularly counsels clients on price advertising, false and deceptive advertising, claim substantiation, privacy, telemarketing, direct mail, email marketing (e.g., CAN-SPAM), endorsement and testimonial issues, and negative option marketing, as well as intellectual property matters involving copyright, trademark, right of privacy and publicity. She also advises clients with respect to drafting and negotiating a variety of agreements, including agency-client agreements, talent agreements and production agreements. Ms. Fitzpatrick has been recognized by The Legal 500 U.S. 2013 for her knowledge in the area of advertising and marketing, where clients commented that she “knows everything about sweepstakes and promotions.” She has also been listed in the 2013 Irish Legal 100 by the Irish Voice Newspaper.

Andra Dallas

Senior Staff Attorney, Children's Advertising Review Unit
Better Business Bureau

Andra Dallas is the Senior Staff Attorney in the Children’s Advertising Review Unit for the Better Business Bureau. She is responsible for evaluating child-directed advertising online, on television, in print and other types of media, collaborating with advertisers to ensure compliance with CARU's Guidelines, and writing case decisions. In addition to public speaking at industry conferences and events, Ms. Dallas is dedicated to community outreach and has visited local community boards to educate parents and children about CARU and its mission to promote responsible advertising to children. From 2007-2009, Ms. Dallas served on the ABA IP Section's Special Committee on Advertising & Promotions, and from 2009-2010, she served on the ABA IP Section's Planning Committee for its Annual Meetings. She is formerly an Adjunct Professor at New York Law School in the Intellectual Property Law Department. She is also a personal trainer specializing in pre-natal and post-natal exercise and lives in Manhattan with her husband and two children, Chloe and Weston. Ms. Dallas received her Bachelor's Degree in Political Science at St. John's University and a Juris Doctorate from New York Law School in 2001.

Barry Benjamin

Kilpatrick Townsend

Barry Benjamin chairs Kilpatrick Townsend’s Advertising and Marketing group, and is a partner in the firm’s New York office. His practice focuses on advertising, technology, and privacy law in the areas of advice and counseling, negotiating contracts, regulatory defense, and litigation. He represents clients small and large, from multinational corporate advertisers and agencies to start-up ventures. As an experienced litigator, Mr. Benjamin has handled a wide range of cases, including false advertising, trademark, unfair competition, trade dress, and copyright, as well as general commercial and fraud claims. Mr. Benjamin also has extensive experience representing advertisers and marketers in regulatory investigations before government agencies, in competitor challenges through the self-regulatory process (NAD, CARU), and in dealing with consumer complaints and class actions. He advises clients in areas where traditional and digital media converge, where new distribution platforms and data gathering tools push the boundaries of technology, privacy, copyright, and content. This includes data collection and sharing, behavioral advertising, mobile marketing, payment processing, social media, user generated/third party content use, online gaming, promotions, the rights of privacy and publicity, developing privacy policies, website terms of use, data security and data breach notification policies. Mr. Benjamin regularly negotiates technology contracts for clients in various industries, including traditional licensing, data sharing, software development, cloud computing, hosting agreements, and website development agreements, as well as advertising industry contracts such as agency-client deals, co-promotion, talent, endorsement and sponsorship agreements. Another significant part of his practice is advising on the structure of and reviewing advertising and marketing campaigns, and drafting terms and conditions for all forms of marketing and promotion initiatives, including sweepstakes, online, mobile, and app games, skill contests, social media, fantasy sports, direct mail, telemarketing, and charitable marketing and co-venture programs. Mr. Benjamin is a Director of the Brand Activation Association (formerly the PMA), and is a member of the BAA’s Government and Legal Affairs Committee. He was also a Co-Chair of the 2009 PMA Law Conference. Mr. Benjamin is a frequent speaker on advertising, marketing, privacy, and emerging media issues, and has written articles in many different publications. He is also the author of the chapter “Push the Boundaries, but Stay in Bounds: The Advertising Lawyer’s Role in an Increasingly Aggressive Marketplace,” in Advertising and Marketing Law (Aspatore, 2005). He was recognized as a New York "Super Lawyer" in the area of First Amendment / Media / Advertising Law by Super Lawyers magazine and was listed in The Best Lawyers in America? for Advertising Law.

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Sweepstakes, Promotions & Marketing Laws: Comprehension & Compliance in a Digital/Mobile Environment



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