Andrew B Lustigman

Practice Areas

• Advertising, Marketing & Promotions

• Brand Management & Protection

• Intellectual Property Law

• Litigation

• White Collar Defense & Investigations

• International Law

Career

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.

Professional Memberships

• 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

Publications

Andy is published and regularly quoted as an industry expert in notable publications.

Personal

• Repeatedly ranked as a “Leading Lawyer” in Advertising: Transactional & Regulatory by Chambers USA annually since 2008

• Recognized as a “Recommended Lawyer” in The Legal 500 U.S. guide in Media, Technology and Telecoms – Advertising and Marketing annually since 2016

• Recognized in The Best Lawyers in America® for Advertising Law since 2016

• Consistently named to the New York Metro Super Lawyers list since 2008

• Named to the Top 100 by New York Metro Super Lawyers list, 2019 and 2020

• Martindale-Hubbell AV Preeminent® 5.0/5.0 Peer Rated for Highest Level of Professional Excellence

Experience

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.

Expert in these Jurisdictions

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