Andrew B. Lustigman
Top rated Media & Advertising attorney in New York, New York
Olshan Frome Wolosky LLPPractice Areas: Media & Advertising
Licensed in New York since: 1995
Education: American University Washington College of Law
Olshan Frome Wolosky LLP
1325 Avenue of the Americas15th Floor
New York, NY 10019 Phone: 212-451-2258 Email: Andrew B. Lustigman Visit website
Details
Andrew Lustigman offers comprehensive counsel to domestic and international clients on advertising, marketing and promotions matters and represents them in regulatory investigations, enforcement actions, and litigation. He chairs Olshan’s Advertising, Marketing & Promotions Group and co-chairs its Brand Management & Protection Group.
Marketers, advertisers, agencies and suppliers, among others, regularly seek Andy’s counsel regarding legal aspects of their advertising and promotional marketing businesses. He’s pragmatic and always looks for solutions that meet each client’s specific needs.
Andy advises them on the clearance of advertising, promotions, and marketing materials, and structures some of the most creative sweepstakes, games of skill, fundraising promotions, and other contests, development of social media programs, and direct marketing campaigns from both legal and compliance standpoints. He also conducts advertising and marketing due diligence in the context of mergers, acquisitions and investments. He is frequently called upon to help clients navigate the nation’s complex subscription marketing laws.
Andy advises clients across all media channels—social media, Internet, television, print, radio, direct mail, mobile, telemarketing, and other electronic media. He has significant experience with FTC and FDA regulatory requirements regarding health claims, advertising, labeling and distributing health-related products including OTC products, dietary supplements, medical devices, cosmetics, and medical foods. Clients also rely on Andy’s pragmatic approach in representing them in investigations, enforcement actions, and litigation brought by those agencies, the United States Department of Justice, the FCC, the U.S. Postal Service, state attorneys general, district attorneys, and other governmental authorities. Andy’s experience also extends to single-plaintiff, multiparty and class action cases and related commercial litigation alleging false and deceptive advertising, intellectual property-related claims, and corporate disputes, as well as a wide array of competitor advertising, IP and privacy challenges.
Proactive and strategic, Andy takes on emerging threats and conceives creative and aggressive defense theories to protect his client’s interests both in and out of court, including in alternative dispute venues. In prosecuting and defending his clients’ cases, he frequently appears in federal and state court and before the National Advertising Division of the Better Business Bureau.
Repeatedly recognized as a leader in his field and as an authority on advertising and promotional marketing law, Andy regularly appears on television, radio, and in publications such as The Wall Street Journal, New York Post, The National Law Journal, New York Law Journal, Inside Counsel, Bloomberg BNA, Law360, Mobile Marketer, and Luxury Daily, discussing important new cases and trends that advertisers and marketers need to know about. He has testified as an expert witness on advertising compliance in federal court.
A growing area of work Andy handles includes advising on and structuring a broad range of international business transactions. He also is retained by Am Law 100 and other leading firms as special counsel on advertising compliance matters in connection with their clients’ business investments.
In addition to maintaining his active practice, Andy is a co-managing partner of the firm and a member of its Executive Committee. He frequently speaks on advertising and promotional marketing law topics throughout the country and has been the publisher of Olshan’s Advertising Law Blog since its inception in the early 2000s.
First Admitted: 1991, New Jersey
Professional Webpage: http://www.olshanlaw.com/attorneys-Andrew-Lustigman.html
- New York
- New Jersey
- U.S. Supreme Court
- U.S. Court of Appeals for the Second Circuit
- U.S. Court of Appeals for the Fourth Circuit
- U.S. Court of Appeals for the Federal Circuit
- U.S. District Court for the District of New Jersey
- U.S. District Court for the District of Maryland
- U.S. District Court for the District of Columbia
- U.S. District Court for the District of Colorado
- U.S. District Court for the Eastern District of New York
- U.S. District Court for the Southern District of New York
- U.S. District Court for the Western District of New York
- New York State Bar Association
- New Jersey Bar Association
- Association of the Bar of the City of New York, Consumer Affairs Committee
- Brand Activation Association/Promotion Marketing Association, Legal Affairs Committee (1996-2019)
- Past, Chair, American Bar Association, Committee on Promotion and Marketing Law
- American Bar Association, Consumer Protection Committee
- Federal Communications Bar Association
- Fellows of the American Bar Foundation
- Past Chair, LAWorld International Legal Network
- Representing innovative promotional marketing agencies and their clients with respect to their brand activation contests and promotions. Helping structure sweepstakes, drafting rules, reviewing advertising and promotional materials, and providing ongoing legal support throughout the sweepstakes period and winner selection process.
- Represented an innovative OTC pharmaceutical company in connection with NAD challenges relating to a widespread national advertising campaign. Defenses resulted in decisions significantly upholding commercial advertising campaigns.
- Providing ongoing legal advice on regulatory and compliance matters to a leading online international travel agency in connection with its advertising and marketing promotions ranging from brand protection, trade regulation compliance, subscription enrollments, and outbound call center matters.
- Representing the leading financial news publisher in connection with subscriptions, marketing and business practices, helping ensure compliance with a myriad of federal and state laws. Specifically provides guidance with respect to telemarketing, automatic renewal, billing disclosures, and collection issues.
- Advised as specialty counsel global investment banking firm in connection with lending to a leading consumer finance provider. Services included review of advertising, lead generation practices, TCPA exposure, privacy, and marketing practices.
- Representing a leading subscription marketer of wine products on continuity compliance. Successfully resolved a significant investigation brought by the California Automatic Renewal Task Force in connection with the client’s enrollment and cancellation practices.
- Defended an ecommerce marketer in connection with a high-profile investigation brought by the New York Attorney General. Developed a strategy, assisted in responding to the investigation, and ultimately obtained a satisfactory resolution. We continue to represent the company in ongoing matters.
- Defending marketer of memorabilia in connection with an FTC and NY State investigation relating to its marketing practices, specifically providing proactive advice in terms of advertising review and responding to inquiries and media issues. Providing ongoing legal compliance support.
- Successfully defeated a motion for class certification, reducing liability from $20 million to $500, for a provider of on-demand automated voice broadcasting and bulk text messaging technology, that was named as a defendant in a class action lawsuit under the Telephone Consumer Protection Act. Also won a summary judgment motion against a co-defendant for indemnification.
- Repeatedly ranked as a “Leading Lawyer” in Advertising: Transactional & Regulatory by Chambers USA annually since 2008, “Leading Lawyer”, Chambers USA
- Recognized as a “Leading Lawyer” in The Legal 500 U.S. in Media, technology and telecoms – Advertising and Marketing from 2023-2024 and as a "Recommended Lawyer" in the same category annually since 2016, “Leading Lawyer”, The Legal 500 U.S.
- Recognized in The Best Lawyers in America® for Advertising Law since 2016, The Best Lawyers in America®
- Consistently named to the New York Metro Super Lawyers list since 2008, New York Metro Super Lawyers
- Named to the Top 100 by New York Metro Super Lawyers list, 2019-2020, New York Metro Super Lawyers
- Martindale-Hubbell AV Preeminent® 5.0/5.0 Peer Rated for Highest Level of Professional Excellence, Martindale-Hubbell
- J.D., magna cum laude, American University Washington College of Law Managing Editor, The American University Law Review
- B.A., University of Michigan
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and Claudia Dubón, a partner in the firm’s Corporate/Securities Group, published an article in New York Law Journal entitled “New Cosmetic Regulations Dramatically Changing the Compliance Landscape.” In the article, Andy and Claudia discuss the cosmetics labeling compliance requirements in the Modernization of Cosmetics Regulation Act of 2022 (MoCRA). Several provisions took effect on July 1, including requiring facilities that process or manufacture cosmetic products to register with the FDA. The product label must also include the contact information of the responsible person(s) for facilitating the reporting of adverse events. “MoCRA is arguably the most significant expansion of the FDA’s regulation of cosmetic products in decades,” Andy and Claudia explain. “These requirements will apply to manufacturers and marketers (among other various parties in the cosmetic space), who will need to carefully consider their and their suppliers’ compliance obligations under these new regulatory requirements.” They add that more MoCRA regulations may be forthcoming, including good manufacturing practices (GMPs) for disclosing fragrance allergens in cosmetic product labeling and establishing and requiring standardized testing methods for detecting asbestos in talc-containing cosmetics. “Given the substantial and expanding compliance obligations, parties in the cosmetic space will need to be mindful of the enhanced regulation requirements to maintain compliance moving forward,” Andy and Claudia write., Co-Author, New Cosmetic Regulations Dramatically Changing the Compliance Landscape, New York Law Journal, 2024
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in Bloomberg Law entitled “FTC’s Focus on Subscriptions Protects Consumers: Legal Insight.” In the article, Andy and Morgan provide a comprehensive overview of the complexities surrounding automatic renewal subscriptions, a payment model increasingly used by e-commerce businesses. The article offers critical advice for companies looking to navigate the evolving regulatory landscape, particularly in light of recent state and federal developments. Andy and Morgan highlight key areas of focus, including the importance of clear enrollment terms, streamlined cancellation processes and the implications of the FTC’s recent actions against major players like Amazon and Adobe. "Companies should ensure customers aren’t forced to reject a barrage of offers before the cancellation request is processed or are somehow taken out of the cancellation path if they are considering a save offer," they advise. Andy and Morgan emphasize that businesses must stay ahead of regulatory changes to avoid costly litigation and maintain consumer trust., Co-Author, FTC’s Focus on Subscriptions Protects Consumers: Legal Insight, Bloomberg Law, 2024
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in Attorney at Law Magazine entitled “FTC and States Continue to Prioritize Automatic Renewal Regulation and Enforcement.” In the article, Andy and Morgan discuss the recent regulations impacting subscription paths and payment models. “Because consumers are charged until they affirmatively cancel,” they note, “the regulatory scrutiny of these programs has continued to increase, both on the federal and state levels.” In light of the Biden administration's recently announced proposals regarding cancellations, this topic continues to be at the top of consumers' minds. Staying compliant requires vigilance and adaptation to evolving legal landscapes. Andy and Morgan write, “As active litigation unfolds ahead of the 2025 trial, attorneys should be mindful of the FTC’s position on automatic renewal programs and the newfound emphasis on transparent user experiences for consumers.”, Co-Author, FTC and States Continue to Prioritize Automatic Renewal Regulation and Enforcement, Attorney at Law Magazine, 2024
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, and associate Morgan Spina published an article in New York Law Journal entitled “Regulation of Automatic Renewals Remains Key Issue for Lawmakers.” In the article, Andy and Morgan discuss the revision of statutes surrounding subscription renewal fees, specifically those that are relevant to the cancellation of automatic renewals. They outline that marketers must take inventory of their compliance obligations, as well as stay abreast of the legal revisions that may affect them in terms of renewal fees. “Although many states, including California and New York, already require an online cancellation option where the consumer signs up online, finalizing the Proposed Rule would require sellers to roll out simple online cancellations in all states,” Andy and Morgan write. “Even if…the Proposed Rule [were] amended in a way that would not require ‘click to cancel’ processes…automatic renewal laws are consistently moving through state legislatures, and many such laws are requiring online cancellation.” As the laws change, marketers should continue to assess their obligations on both a micro and macro level. Andy and Morgan advise examining trends regarding how lawmakers and regulators are approaching marketing practices regarding auto-renewals. “Regardless of how the FTC moves through its rulemaking process to the likely finalization of the Proposed Rule,” they explain, “there is already a movement toward online cancellation. As more states pass applicable laws, consumers are more likely to expect such options, which may ultimately shape overall expectations on marketers.”, Co-Author, Regulation of Automatic Renewals Remains Key Issue for Lawmakers, New York Law Journal, 2024
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotions Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law entitled “New Laws, Consumer Actions Will Help Us Say Goodbye to Junk Fees.” In the article, Andy discusses the increasing significance of surcharges and undisclosed fees impacting consumer purchasing decisions. Politicians and regulators are responding with proposed federal and state laws, such as the Junk Fee Prevention Act, aiming to compel marketers to transparently display the full price, including all fees. “The Junk Fee Prevention Act, introduced last April, pushes sellers to conspicuously display the full price, including all fees, in every advertisement and initial consumer interaction,” Andy writes. “If passed, this legislation would also grant the Federal Trade Commission authority to promulgate corresponding regulations.” The FTC’s Rule on Unfair or Deceptive Fees, which the agency proposed last fall and is accepting public comments on it until February 7, would outlaw hidden fees and bar businesses from advertising prices that obscure or omit mandatory fees in a range of industries. The Department of Transportation proposed a similar rule on Enhancing Transparency of Airline Ancillary Service Fees that would require airlines and online travel agencies to display the full price of a ticket, including baggage and other fees. Likewise, the Consumer Financial Protection Bureau proposed a rule last October requiring large banks to treat overdraft loans like credit cards, provide clear disclosures, and cap overdraft fees in line with their costs or established benchmarks, and the Federal Communications Commission finalized a rule requiring cable and internet service providers to list fees and services up front. On the state level, California passed Senate Bill 478 last year, which prohibits advertising prices that exclude mandatory fees, the Massachusetts Attorney General has proposed regulations that require pricing advertisements to prominently feature the total cost of goods or services before gathering consumer information, and a Pennsylvania bill requiring total pricing passed the House by 172-31 and is pending in the state senate. Consumer efforts have also aimed at junk fees, with litigation already directed at landlords hiding garbage removal fees as well as suits filed against the Bronx Zoo and Rockefeller Center for similar undisclosed fees. Andy explains that “the cost of hidden fees is rising. Businesses should carefully check their pricing to ensure fees are justified and sufficiently disclosed before a consumer makes a purchasing decision.”, Author, New Laws, Consumer Actions Will Help Us Say Goodbye to Junk Fees, Bloomberg Law, 2024
- Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a Law360 (subscription required) article entitled “Open Issues At The USPTO And Beyond After Biden AI Order” In the article, they discuss how President Biden’s Executive Order relating to AI could potentially make it harder for businesses to protect AI-created inventions. “Rather than providing answers to how AI should be used in keeping with these principles, the order requires numerous government agencies to develop their own principles and guidelines around the use of AI as AI pertains to those agencies,” Mary and Andy write. “Currently, the USPTO’s position is that AI-generated inventions are incapable of acquiring patent protection because the patent laws define an ‘inventor’ as a natural person.” For businesses that depend on making software, film, and music, using AI to create such works could prove irresistible. However, if a work is created entirely by AI, a business may not be entitled to any copyright protection at all, and thus unable to prevent unauthorized use. “Businesses should also be aware of the very real possibility of AI-generated disinformation or deepfakes and how they can be used for fraud and theft,” they explain. “Employees will need to be trained to recognize when AI is used to target a business for nefarious purposes, and systems will need to be developed to recognize and prevent AI-generated attacks on business systems or data.”, Co-Author, Open Issues At The USPTO And Beyond After Biden AI Order, Law360, 2023
- Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a New York Law Journal (subscription required) guest column entitled “Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?” concerning President Biden's AI Executive Order and how AI output will be categorized as intellectual property. Mary and Andy seek to discern the rightful owner of AI-generated creations, ranging from text to physical product ideas, by examining the specifics of the Executive Order and current intellectual property laws. “Although current law has no definitive answers,” they write, “the USPTO has taken the position that AI-generated inventions cannot be patented. Thus far, the U.S. Supreme Court has declined to hear any cases on this issue. Many believe that there could be a middle ground in which an AI system could be named as a co-inventor with the creators of the AI system.” Mary and Andy find that the Executive Order offers more questions than answers relating to intellectual property. Since the order passes the responsibility of AI intellectual property to other government entities, there may be a longer wait for clarity and new legislation on the subject., Co-Author, Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?, New York Law Journal, 2023
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, and Jeremy King, Chair of Olshan’s Insurance Coverage Practice, published an article in Bloomberg Law (subscription required) entitled “Social Media Influencers Must Weigh Liability Insurance Options.” In the article, the authors warn that certain promotional behaviors undertaken by social media influencers could potentially expose brands to legal liabilities. Accordingly, many brands require influencers to purchase general liability insurance. “General liability coverage protects the influencer from claims they caused bodily injury or damaged property if an unexpected accident takes place while staging an Instagram shot or filming a TikTok video,” Andy and Jeremy write. “But social media influencers and companies may be more interested in lesser known ‘personal and advertising injury’ coverage found in general liability policies.” They urge anyone who intends to pursue a career as a social media influencer to discuss insurance coverage options with insurance brokers in order to prevent as much potential risk as possible. They should carefully examine different options in coverage, as well as any exclusions that would be detrimental to the risk they are looking to offset. How much coverage to purchase is also important. “Coverage often can be expensive,” they explain, “and the potential costs of defending against a lawsuit may need to be considered when deciding the limit of insurance to purchase.”, Co-Author, Social Media Influencers Must Weigh Liability Insurance Options, Bloomberg Law, 2023
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law (subscription required) on how the launch of the new social media app Threads may feature some of the same pitfalls for brands, though it means to offer a “less toxic” alternative to Twitter. Accordingly, it is incumbent upon brands to remain hyper-cognizant of the spaces in which they advertise, including on this new platform from Facebook parent company Meta. “By combining the interactivity of Twitter with an algorithm that moderates unfavorable speech,” Andy writes, “Threads has the potential to succeed as a platform for brands to promote themselves and offer a wide array of activations.” He cautions, however, that brands must “keep in mind that moderation protections [on Threads] may be limited.” Because Meta wants to make Threads accessible to open social media platforms, the platform may therefore not be subject to the same level of content moderation as Meta itself, and this could result in brand content perhaps being shown in an “unintended environment,” Andy explains. “Before launching a campaign on Threads, brands need to consider its parameters,” he writes. “Advertisers also need to consider whether any claims that are being made in their own content require clarifying disclaimers. If so, they must be worked into the post within the character limitation yet be sufficiently prominent and descriptive to provide the appropriate context of a claim.”, Author, Threads Poses Legal Challenges for Brands and Corporate Counsel, Bloomberg Law, 2023
- Olshan partner Andrew Lustigman, Chair of the firm's Advertising, Marketing, and Promotion's Practice and Co-Chair of the Brand Management & Protection Practice, and associate Morgan Spina published an article on April 21 in Sports Litigation Alert (subscription required) focusing on how services such as MLB's Apple TV+ arrangement must adhere to compliance obligations in a rapidly changing regulatory environment. In their article, they cover the growing trend of subscription services for watching sporting events, how subscription-based business models are scrutinized by state and federal regulators, and how the Federal Trade Commission's (FTC) outdated Negative Option Rule is being revised to fit modern usage of subscription models. “Subscription-based business models continue to be very popular among marketers, particularly given the high cost of customer acquisition,” they write. “[R]egulators have been concerned that businesses’ reliance on consumers taking affirmative acts to cancel automatically renewing contracts, as opposed to consumers affirmatively renewing such contracts, can and has resulted in consumers paying for goods or services that they no longer use or desire.” Regulators' concern has brought forth California’s new automatic renewal law, enforced by the California Automatic Renewal Taskforce (CART), and the FTC’s new proposed rule for the Negative Option Rule. However, they highlight a potential drawback of these efforts, writing, “[T]he Proposed Rule would not supersede state laws as currently drafted. Thus, while the law sets the minimum standards for continuity programs, businesses offering continuous service programs must continue to look to the existing state laws and ensure enhanced compliance where necessary.”, Co-Author, MLB’s Apple TV+ Arrangement Highlights Subscription Legal Compliance Obligations, Sports Litigation Alert, 2023
- The New York Law Journal published an article on April 13, 2023 authored by Olshan partner, Chair of the firm's Advertising, Marketing and Promotion's Practice and Co-Chair of the Brand Management & Protection Practice Andrew Lustigman and associate Morgan Spina entitled "FTC's Proposed New Rules for Businesses Selling Subscriptions Heighten Compliance Obligations." To read the full article, click here (subscriber-based)., FTC’s Proposed New Rules for Businesses Selling Subscriptions Heighten Compliance Obligations, New York Law Journal, 2023
- Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a Law360 (subscription required) article entitled “Open Issues At The USPTO And Beyond After Biden AI Order” In the article, they discuss how President Biden’s Executive Order relating to AI could potentially make it harder for businesses to protect AI-created inventions. “Rather than providing answers to how AI should be used in keeping with these principles, the order requires numerous government agencies to develop their own principles and guidelines around the use of AI as AI pertains to those agencies,” Mary and Andy write. “Currently, the USPTO’s position is that AI-generated inventions are incapable of acquiring patent protection because the patent laws define an ‘inventor’ as a natural person.” For businesses that depend on making software, film, and music, using AI to create such works could prove irresistible. However, if a work is created entirely by AI, a business may not be entitled to any copyright protection at all, and thus unable to prevent unauthorized use. “Businesses should also be aware of the very real possibility of AI-generated disinformation or deepfakes and how they can be used for fraud and theft,” they explain. “Employees will need to be trained to recognize when AI is used to target a business for nefarious purposes, and systems will need to be developed to recognize and prevent AI-generated attacks on business systems or data.”, Open Issues At The USPTO And Beyond After Biden AI Order, Law360, 2023
- Chair of Olshan’s Intellectual Property Law Group and Co-Chair of the firm’s Brand Management & Protection Group Mary Grieco and Olshan Co-Managing partner, Chair of the firm's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group Andrew Lustigman published a New York Law Journal (subscription required) guest column entitled “Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?” concerning President Biden's AI Executive Order and how AI output will be categorized as intellectual property. Mary and Andy seek to discern the rightful owner of AI-generated creations, ranging from text to physical product ideas, by examining the specifics of the Executive Order and current intellectual property laws. “Although current law has no definitive answers,” they write, “the USPTO has taken the position that AI-generated inventions cannot be patented. Thus far, the U.S. Supreme Court has declined to hear any cases on this issue. Many believe that there could be a middle ground in which an AI system could be named as a co-inventor with the creators of the AI system.” Mary and Andy find that the Executive Order offers more questions than answers relating to intellectual property. Since the order passes the responsibility of AI intellectual property to other government entities, there may be a longer wait for clarity and new legislation on the subject., Will Biden’s AI Executive Order Give Clarity on the Issue of Inventorship?, New York Law Journal, 2023
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, and Jeremy King, Chair of Olshan’s Insurance Coverage Practice, published an article in Bloomberg Law (subscription required) entitled “Social Media Influencers Must Weigh Liability Insurance Options.” In the article, the authors warn that certain promotional behaviors undertaken by social media influencers could potentially expose brands to legal liabilities. Accordingly, many brands require influencers to purchase general liability insurance. “General liability coverage protects the influencer from claims they caused bodily injury or damaged property if an unexpected accident takes place while staging an Instagram shot or filming a TikTok video,” Andy and Jeremy write. “But social media influencers and companies may be more interested in lesser known ‘personal and advertising injury’ coverage found in general liability policies.” They urge anyone who intends to pursue a career as a social media influencer to discuss insurance coverage options with insurance brokers in order to prevent as much potential risk as possible. They should carefully examine different options in coverage, as well as any exclusions that would be detrimental to the risk they are looking to offset. How much coverage to purchase is also important. “Coverage often can be expensive,” they explain, “and the potential costs of defending against a lawsuit may need to be considered when deciding the limit of insurance to purchase.”, Social Media Influencers Must Weigh Liability Insurance Options, Bloomberg Law, 2023
- Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, published an article in Bloomberg Law (subscription required) on how the launch of the new social media app Threads may feature some of the same pitfalls for brands, though it means to offer a “less toxic” alternative to Twitter. Accordingly, it is incumbent upon brands to remain hyper-cognizant of the spaces in which they advertise, including on this new platform from Facebook parent company Meta. “By combining the interactivity of Twitter with an algorithm that moderates unfavorable speech,” Andy writes, “Threads has the potential to succeed as a platform for brands to promote themselves and offer a wide array of activations.” He cautions, however, that brands must “keep in mind that moderation protections [on Threads] may be limited.” Because Meta wants to make Threads accessible to open social media platforms, the platform may therefore not be subject to the same level of content moderation as Meta itself, and this could result in brand content perhaps being shown in an “unintended environment,” Andy explains. “Before launching a campaign on Threads, brands need to consider its parameters,” he writes. “Advertisers also need to consider whether any claims that are being made in their own content require clarifying disclaimers. If so, they must be worked into the post within the character limitation yet be sufficiently prominent and descriptive to provide the appropriate context of a claim.”, Threads Poses Legal Challenges for Brands and Corporate Counsel, Bloomberg Law, 2023
- Olshan partner Andrew Lustigman, Chair of the firm's Advertising, Marketing, and Promotion's Practice and Co-Chair of the Brand Management & Protection Practice, and associate Morgan Spina published an article on April 21 in Sports Litigation Alert (subscription required) focusing on how services such as MLB's Apple TV+ arrangement must adhere to compliance obligations in a rapidly changing regulatory environment. In their article, they cover the growing trend of subscription services for watching sporting events, how subscription-based business models are scrutinized by state and federal regulators, and how the Federal Trade Commission's (FTC) outdated Negative Option Rule is being revised to fit modern usage of subscription models. “Subscription-based business models continue to be very popular among marketers, particularly given the high cost of customer acquisition,” they write. “[R]egulators have been concerned that businesses’ reliance on consumers taking affirmative acts to cancel automatically renewing contracts, as opposed to consumers affirmatively renewing such contracts, can and has resulted in consumers paying for goods or services that they no longer use or desire.” Regulators' concern has brought forth California’s new automatic renewal law, enforced by the California Automatic Renewal Taskforce (CART), and the FTC’s new proposed rule for the Negative Option Rule. However, they highlight a potential drawback of these efforts, writing, “[T]he Proposed Rule would not supersede state laws as currently drafted. Thus, while the law sets the minimum standards for continuity programs, businesses offering continuous service programs must continue to look to the existing state laws and ensure enhanced compliance where necessary.”, MLB’s Apple TV+ Arrangement Highlights Subscription Legal Compliance Obligations, Sports Litigation Alert, 2023
- The New York Law Journal published an article on College Athletics Advertisement entitled "Are College Athletes the Next Fashion Stars?" written by Andrew B. Lustigman and Scott Shaffer. The article addresses the upcoming changes to the NCAA college athletics brand advertising policy for college athletes., Co-Author, Are College Athletes the Next Fashion Stars?, New York Law Journal Special Report, 2021
- The NYSBA Inside published an article on the new Comprehensive Automatic Renewal Law entitled "Check Your Enrollment Path: New York Enacts Comprehensive Automatic Renewal Law" authored by Andrew B. Lustigman and Morgan E. Spina. The article addresses New York's recent enactment of a new Comprehensive Automatic Renewal Law, and the importance of checking your enrollment status., Co-Author, Check Your Enrollment Path: New York Enacts Comprehensive Automatic Renewal Law, NYSBA Inside, 2021
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