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False Advertising: What Is It, and How Does Our Agency Avoid It?

True or false? Anyone involved in the advertising process can be held liable under most regulations and statutes that govern false advertising. Oh. so. true. The advertiser, the Agency, and anyone else involved who knowingly, or sometimes negligently, fails to follow the rules, is on the hook. In addition to traditional and digital advertising, when you think about the current state of influencer marketing, and the tangled web of risks around each brand and #ad campaign, it’s easier to visualize the vulnerability of agencies when it comes to implementing these tactics. False claims and advertising can lead to financial, legal, and brand loyalty and reputation issues. It can also completely disrupt your Agency’s relationship with a valued client. But what exactly are the rules around false advertising and where do they come into play? Understanding False Advertising False advertising involves the stating of untrue claims about the performance, reliability, functions and features of whatever product or service is being promoted. This not only applies to the way a product works, but also includes its origin and the way it is manufactured. It isn’t just outright lying in advertising that gets you in trouble with regulators, but also making claims or omissions that could mislead regulators, competitors or consumers. Actual False Claims: Stating information that is clearly false and incorrect. Misleading Claims: Messages that allude to or imply incorrect information that can mislead the buying audience. Unsubstantiated Claims: The presentation of information that can’t be verified, including that of competition. Four Ways Your Agency Can Get Into Trouble 1. No substantiation of claims Do not make any claims about the product or service that you or your client cannot verify. Sources such as product research, consumer [...]

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Can You Keep A Secret? Nondisclosure Agreements in the Agency-Client Relationship

Creative agencies such as marketing firms, website developers, and advertising and design groups can often be reluctant to approach the issues of confidentiality and intellectual property rights ownership with prospective business clients. Those who set agency policies may feel that asking for a nondisclosure agreement (NDA) is too off-putting during business development discussions – as if bringing up such matters might sully the burgeoning trust that is being established in the working relationship and create an uncomfortable tension. Others feel that such agreements aren’t actually enforceable (yes, they are), or that a prospective client will always refuse to sign them (some will sign, some won’t). While some of these concerns are well founded, there are good reasons why creative agencies should still pursue a nondisclosure agreement. Let’s take a look at three of those reasons, below. Three Reasons Your Agency Should Utilize a Nondisclosure Agreement First, a nondisclosure agreement sends the professional message that the Agency respects the confidentiality of all parties involved. Integrity always makes a company shine brighter, don’t you think? How can an NDA protect everyone? Simply make the confidentiality provisions mutual so that both the client and the Agency are protected. In this way, the Agency’s client feels valued and is also subconsciously reminded that he or she is working in a private relationship. Secondly, an NDA offers a convenient opportunity to address rights ownership issues in writing prior to a pitch, proposal, or a new business discussion. Many agencies worry about protecting their intellectual property during the new business process as well. A mutual nondisclosure agreement can include helpful language about the Agency’s rights to the concepts and work it discloses, prior to actual engagement by the client. Thirdly, a [...]

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The 5 Most Common Legal Mistakes in Agency New Business – and How to Fix Them

The agency new business process is, for most agencies, exciting and stressful at the same time. While your team is focused on the thrill of a potential “win,” and what that could mean for the agency’s fortunes, it’s probably equally under stress about meeting deadlines, putting forth your best efforts for the prospect, and keeping other clients happy too. Jody Sutter of Sutter Company and I recently addressed the challenges of new business and negotiations in a web clinic for agencies organized by Filament: “Don’t Leave Money on the Table – Negotiating Client Contracts From a Position of Strength.” While you’re navigating this process at warp speed, it’s easy to make an oversight or misstep that could cause bad legal consequences or financial loss for the agency. Don’t let this happen – be aware of the most common legal mistakes agencies make during their new business efforts, and how to fix (or avoid) them. 5 Legal Mistakes In Agency New Business and How to Fix Them Mistake #1: You don’t protect the Agency’s intellectual property during a pitch or discovery session, or in your proposal. Fix It: Sometimes it’s a valid business decision to allow the Client to own IP in pitch materials, spec creative or proposals – either because the Agency negotiated payment for it, or because it’s a required “ticket” to participate in the opportunity. But make it an intentional decision. Unless you’ve agreed with a prospective Client that it will own the Agency’s pre-engagement IP, use a Nondisclosure Agreement that protects the Agency’s ownership position. Absent that, at a minimum include IP ownership clauses in your proposal and pitch assets, and use copyright ownership notices on these materials and any spec creative [...]

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Agency best practices — what to do when your client is stalled

Short of losing out on work, I'm not sure there's anything more frustrating then when a client is stalled on a project.  You know how it goes.  Client calls with their hair on fire.  You move heaven and earth to get the resources ready to help them solve their crisis and you're knee deep into the work when you get the call.  "We have to hold tight for a minute." Which of course, turned into 2 months. Or worse -- you don't get a call.  But you are waiting on something from the client (web content perhaps?) and you wait.  And wait.  But the client is stalled and not telling you. The worst part isn't the delay. It's that every day of the delay costs you money.  And it costs you even more money when they're ready to go again. You have to get your head back into the work, you have to go back and re-read the creative brief, and you often have to bring the team back together to get everyone back on track.  On top of all of that -- you need to shift work to accommodate the old project because when they come back -- they're always in a hurry to get it done. Ideally you can discourage clients from disrupting the flow of the work.  But even if you can't -- you shouldn't be penalized for a client not having their act together.  I get it.  Sometimes it's not your client but someone else inside their organization and sometimes, stuff just comes up.  But you know what -- you're running a business and it's tough to do that when clients behave in an unpredictable and unreasonable manner.  Which is what all [...]

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How to Prevent Internal Fraud from Happening in Your Agency

Internal fraud. Two words that strike fear into the hearts of any agency owner. It’s not a subject that we want to talk about but it’s a real danger for agencies. And while most agency owners think that it could never happen to them, I know from my experience with hundreds of agencies that it can and does happen to the best of us.    But have no fear, by following some very simple best practices around your accounting systems and the people you trust with your money, you can take great strides in making sure the right checks and balances are in place inside your agency.   Take a listen to this solocast where I detail out: Common ways internal fraud is committed and ways to prevent it from happening How agencies are targeted with email scams The ways agency employees embezzle hundreds of thousands of dollars from agencies The systems you need to put in place to prevent fraud Drew McLellan is the Top Dog at Agency Management Institute. He has also owned and operated his own agency over the last 20-years. And all through the year, he straddles the fence of working in his agency and working with 250+ small- to mid-size agencies in a variety of ways. He works with agency owners in peer network groups, teaches workshops for owners and their leadership teams, teaches AE bootcamps, and does a lot of consulting. Because he works with a lot of agencies every year — he has the unique opportunity to see the patterns and the habits (both good and bad) that happen over and over again. He has also written two books and been featured in The New York Times, Entrepreneur [...]

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Intellectual Property Advice for Agency Owners with Sharon Toerek

For most of us, we could use some intellectual property advice as legal issues are just not our strong suit. Our brains just aren’t wired to work that way. Whether it’s clients, freelancers or employees – we want to believe the best of people. But it’s important that we understand the legal risks we face every day and how we can mitigate those risks with a little planning, preventative measures and common sense. In this podcast, I have a great conversation with Sharon Toerek about all things legal from an agency’s perspective. We hit on a variety of topics including: Copyright laws and the misconceptions surrounding these laws How to protect yourself and your work when using freelancers How to implement a consistent legal process A checklist for agencies to internally audit themselves and find any current holes in their legal protection Sharon is an intellectual and property law attorney and her national firm, Toerek Law, works with agencies all over the country, devoting time to helping creative professionals protect, enforce and monetize their creative assets. Sharon consults with clients on legal issues surrounding copywriting, content protection, licensing of creative content, trademark and brand protection, and more. Sharon and I have worked together for years. I connect her to AMI agencies all the time because she’s not just a great attorney for big and small business law – she also understands our business and speaks our language. Best of all, there’s no legal jargon – I understand every word she’s saying! To listen – you can visit the Build A Better Agency site (https://agencymanagementinstitute.com/sharon-toerek/) and grab either the iTunes or Stitcher files or just listen to it from the web. If you’d rather just read [...]

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The 5 Best Ways Agencies Can Save Money on Legal Fees This Year

As a lawyer who advises ad and marketing professionals, I’m regularly reminded by clients that excessive legal fees are not a fun way to spend marketing dollars. This is understandable, and to me it’s also a somewhat welcome point of view. If that sounds like an unusual perspective coming from “legal,” hear me out: it is always less costly in the long run to have a proactive approach to the legal matters that regularly arise in the business of marketing. Making a smart investment up-front in some solid legal infrastructure saves your agency the important commodities of time and money later. So, what are some of these “smart investments” that allow agencies to save on pricey legal fees? Have a Model Agency-Client Contract in Place – Note the use of the term “model,” which is a deliberate choice over the more popular term “form.” This is because while I am decidedly “anti-form,” your agency likely has (I last I hope it has) some consistent business practices that apply to every client, such as intellectual property ownership, payment milestones, and liability limitation. Your clients are not commodities, and neither is the work you do for them, so I advise against approaching your dealings with them with a fill-in-the-blanks form. Instead, save time by having model contract terms and conditions developed one time, and modify or customize them client-by-client, or by project, as you have the need. It’s also my experience that the absence of model contract language makes it more likely that the agency will just skip the step altogether and start the work with no contract – one of the easiest ways an agency can cost itself extra money on excessive legal fees if the [...]

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Advertising agency non-compete agreements

A non-compete agreement form is like fire insurance. It's a sickening feeling to see the smoldering ruins of your just-burned house, and wish you'd bought the insurance policy. The time to create your non-compete agreement is before you get burned. There's a widespread belief among the advertising agencies that we meet in our workshops and consulting that non-compete agreements are not enforceable. We do all we can to dispel that belief. We're not attorneys so we won't attempt to give you legal advice, other than say a properly written non-compete agreement form required by the agency and signed by the employee is binding upon both parties. Doing so could even save you a fortune on legal fees. Non-compete agreements do not fall under Federal jurisdiction. The covenants are governed by State law. With fifty states there are fifty sets of rules. This means you need to talk to your legal eagles and have them put one together for you that can be upheld in your state courts. You need to have ALL current and new employees sign the non-compete agreement form you and your attorneys have fashioned. Your attorney will tell you that you will probably have to compensate each employee in some way to sign the new agreement.  In my agency, we paid them all $1 -- which we literally handed to them. You may find that it may be simple to include a "section" on non-compete in the employment agreement. But the key is getting signatures on the document -- no matter which document you choose to include your non-compete language. While it's true that you can't prevent someone from making a living, you can prevent them from making a living at your [...]

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5 Mistakes that cost agency owners money.

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