FTC Provides Guidance to Social Media Influencers in Live Twitter Chat

Influencer marketing is the popular practice of using individuals with large social media audiences—known as “influencers”—to advertise products and services through their social media accounts. The Federal Trade Commission (FTC) has made it clear that influencers must clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media. To emphasize this point, the FTC sent letters to 90 influencers and marketers earlier this year reminding them of their obligation to make appropriate disclosures on ads. The FTC has also provided Endorsement Guides with answers to frequently asked questions from advertisers, ad agencies, bloggers, and others.

Most recently the FTC hosted a live Twitter chat to answer questions and provide guidance on influencer marketing. The FTC covered a number of topics during the chat, from the use of the hashtag “#ad” as a disclosure to built-in disclosure tools on popular social media platforms. Key takeaways from the Twitter chat are:

  • Using “#ad” is a sufficient disclosure, as long as it is hard to miss in the post.

  • Even if an influencer posts from abroad, U.S. law still applies if it is reasonably foreseeable that the posts will affect U.S. consumers.

  • Built-in tools such as the “Paid” tag on Facebook and “includes paid promotion” mark on YouTube are not sufficient to disclose that a post is an ad.

  • For Snapchat and Instagram posts, the FTC suggests superimposing a disclosure over the images. For a series of images, a disclosure on the first image may be sufficient, as long as it stands out, and viewers have time to see it.

The Twitter chat followed shortly after the FTC announced its first settlement with two social media influencers, Trevor Martin and Thomas Cassell, for endorsing the online gambling service CSGO Lotto without disclosing that they were the owners of the company, as well as paying other well-known social media influencers to promote the company without requiring them to disclose the payments in their posts.

Click here to read a transcript of the questions and the FTC’s responses during the official Twitter chat.

This post was written by Edward J. McAndrewPhilip N. YannellaKim Phan & Roshni Patel of Ballard Spahr LLP Copyright ©
For more legal analysis go to The National Law Review

Happy New Year Begins with Legitimate, Transparent and Trustworthy Media

fake newsIt used to be that news traveled fast, but these days, thanks to technology and social networking, it’s more accurate to say that news travels at record speeds. A news story can literally go viral in seconds. Unfortunately, sometimes these stories are entirely false – and it took a highly contentious presidential election for much of America to realize the distressing and detrimental prevalence of fake news.

Sometimes fake news stories can be detected from a mile away, but sometimes they fool even the most perceptive of readers. As NPR notes here, “…the proliferation of fake news isn’t just the responsibility of the platforms used to spread it. Those who consume news also need to find ways of determining if what they’re reading is true.” What’s the primary indicator? An authentic news story originates from a reputable and substantiated news outlet.

As a marketing and/or legal professional, you must do your homework when a media opportunity arises. Similarly to recognizing bogus news stories, you need to use your best judgment to recognize when interview and byline opportunities are not worthwhile or authentic. Interviewing and writing require valuable time and effort, so you want to ensure that every endeavor will be time and effort well spent with a news organization that is authentic, trusted and relevant in your industry. Otherwise, results could be lackluster and even detrimental. As New Year’s resolutions and goals are being set, what better occasion than now to refresh our understanding of the fundamental indicators of quality, reliable and suitable media opportunities?

The next time you are presented with a media opportunity, spend a few moments conducting some simple due diligence. When an opportunity arises, both for my clients and myself, I examine the following to weigh its value:

  • Website: Reputable and established news organizations run websites that are professional in esthetic and content. They have recognizable domains. Their sites are navigable, attractive and well-organized. They feature up-to-date news items. Ultimately, you need to ask yourself whether you want your name, commentary or original thought leadership to appear on that organization’s page. If the answer is no, then it’s definitely better to pass and hold out for the next opportunity.

  • Media Kit: Media kits are truly a treasure trove of information. They provide details such as a publication’s history, circulation, page views, editorial calendar and – perhaps most importantly – the audience. Who and how many will be exposed to your efforts? If the audience is not ideal for your message, or if numbers appear low, then you should set your sights on a different and more valuable opportunity.

  • Editor or Journalist Background: You can tell a lot about a media professional just by examining his or her professional history and repertoire of work. The beauty of media is that everything is documented. Where did he or she come from? Does the interviewer have established credentials with respected publications? What is his or her writing style – snarky and negative, or sound and informative? What other types of sources do they tend to quote in articles? Reporters are trained to find the story, so if you open yourself up to an interview, you need to make sure that it’s a “story” with no negative repercussions for you, your practice or your firm. Don’t be afraid to ask questions about the angle or direction your interviewer plans to take for his or her piece.

  • Cost: My clients often ask us about pay-to-play media opportunities. Generally speaking, my agency advises against pay-to-play. While advertising most definitely has its place, I strongly encourage and believe in conventional editorial opportunities that are gained through traditional PR methods.

  • Social Media Feeds: Who and what are the organizations/journalists following on social media? As the old adage goes, you are the company you keep. Even digitally! Reputable outlets and media professionals subscribe to other professional feeds.

For 2017, I challenge you to embrace this resolution: Support, read, share and contribute nothing but quality, enriching and authentic news. You, your clients and your colleagues will all reap the benefits. Your time is just that: yours. Make sure it’s spent reading and investing in nothing but the best.

ARTICLE BY Bethany S. Early of Jaffe

© Copyright 2008-2016, Jaffe Associates

Criminal or Civil Liability for Sharing Streaming Accounts?

We are at the beginning of a new era of media consumption.  Traditional content delivery systems such as satellite and cable television are hemorrhaging customers to a wave of “cord cutting” that has been facilitated by the availability of streaming services such as Hulu Plus, Netflix and HBO Go.[1]  Now that smart televisions are becoming more common place, cord cutting is no longer limited to the technologically hip youth, as accessing a Netflix account is as easy as changing the channel.

1-26-2016 3-38-45 PMBut with the proliferation of streaming services, users have elected to share the benefits of the accounts―i.e. their passwords―with others.  A staggering 46% of accountholders admit to sharing their streaming account password with people outside of their household.[2]  This raises some interesting questions of federal and state criminal, tort and contract laws.  What sort of liability might someone have for sharing their account with friends or family?  For using a shared account of a friend?

But in order to figure out if sharing of passwords violates the law, we first have to see if it violates the streaming service’s terms of service.

Netflix

Netflix is arguably the pioneer in password sharing.  For years Netflix has allowed multiple user profiles to better enable its suggestion algorithm to tailor its offerings to a targeted user.  By tactical use of user profiles, parents can limit the likelihood that Netflix will suggest the latest episode of Barney and Friends based on their child’s viewing of Teletubbies the week before.[3]  Netflix has also long offered the ability to stream its services on a limited number of devices simultaneously. [4]  Netflix’s commitment to account sharing was recently echoed by its CEO Reed Hastings who stated:  “As kids move on in their life, they like to have control of their life, and as they have an income, we see them separately subscribe. It really hasn’t been a problem.”[5]  But Netflix’s position on non-family members sharing the passwords has been a little more vague.

Hulu Plus

Hulu has not taken the vocal stance on account sharing that Netflix has.  Though it is apparent that Hulu has at least contemplated password sharing to some degree.  In section 5 of its terms of use, Hulu acknowledges that people within the same household are likely to use the account, and holds the primary account holder accountable  for their activities:  “You are responsible for all use of your account, including use of your account by other members of your household. By allowing others to access your account, you agree to be responsible for ensuring that they comply with these Terms and you agree to be responsible for their activity using the Services.”[6]  However unlike Netflix, Hulu Plus accounts are limited to streaming on one device at a time, which minimizes the advantage of sharing.

HBO Go

Like Netflix, HBO Go specifically contemplates the idea of multiple users within the same household.  HBO has two tiers of accounts.  The first is a “Registered Account” which consists of account holders who meet certain eligibility criteria, namely, they subscribe to HBO and HBO On Demand or Cinemax and Cinemax on Demand.[7]  These Registered Account holders can create “Household Member Accounts” for members of their household.  The Register Account serves as the master account for the Household Member Accounts and can control what content the junior accounts have access to.  However, despite the ability to create Household Member Accounts, HBO Go appears to take an antagonistic view of sharing the master account password itself.  HBO Go’s terms of service specifically state that “You are responsible for all activity occurring under your Registered Account and any Subaccount authorized by you, including maintaining the confidentiality of each Username and Password, and you agree that any household member account users authorized by you will not permit the disclosure of any Username and Password to any person.”   Contrast the above statements to Hulu’s request to “Please keep your password confidential,” and it is apparent that one is an order, and the other a request.

But statements by HBO’s CEO bely the strict terms of their agreement. In an interview with Buzzfeed, HBO’s CEO stated:  “It’s not that we’re ignoring it, and we’re looking at different ways to affect password sharing. I’m simply telling you: it’s not a fundamental problem, and the externality of it is that it presents the brand to more and more people, and gives them an opportunity hopefully to become addicted to it. What we’re in the business of doing is building addicts, of building video addicts. The way we do that is by exposing our product, our brand, our shows, to more and more people.”[8]

So HBO intends on building a legion of addicts, and with shows like Game of Thrones, they are well on their way to being the Pablo Escobar of digital content.  But like any drug dealer, the first sample is free, but the second is going to cost you.  No one knows for sure when HBO will start demanding money for that next “hit.”

It is apparent that these three streaming services all authorize sharing of an account among members of a household. A reasonable argument could be made that this extends to college age children who are away from the home during the school year, but whose primary residence is still their family home.

But what about sharing the account with third parties?  What liability might an individual incur if they use a friend’s account with the friend’s permission?  Arguably such activity goes beyond the terms of service of a user’s account, and presents some interesting questions of both state and federal law.

Trouble in Tennessee

In 2011, Tennessee, the home of Nashville and the birthplace of country music, became one of the first states to formally criminalize user account sharing.  HB1783, effective July 1, 2011, modifies Tennessee Code Annotated Section 39-11-106 subdivision 35 by adding “entertainment subscription service” to the list of services protected by its theft of services offence.[9]   Section 39-14-104 defines theft of services as any person who: “(1) intentionally obtains services by deception, fraud, coercion, false pretense or any other means to avoid payment for the service; (2) having control over the disposition of services to others, knowingly diverts those services to the person’s own benefit or to the benefit of another not entitled thereto.”  The punishment for violation of this provision ranges from a misdemeanor to a felony depending on the value of the services rendered.

The first provision of 39-14-104 targets the friend who is using the primary account holder’s password without permission from the streaming service.  The person has “obtain[ed] services by . . . any other means to avoid payment for the service.”  The second provision targets the account holder who has shared his password with a friend.  That person has control of a subscription service and diverts it to his friend, who is not entitled to the service.

California is Not the Golden State For Sharing

It is unsurprising that California would not take kindly to people sharing the fruits of its most visible industry.  California Penal Code Section 502 is an “anti-hacking” statute that covers a broad variety of activities.  To the extent that sharing a primary accountholder’s password with people outside of the household is beyond the scope of the terms of use of the streaming service, there are several provisions of Section 502 that would criminalize such activity (along with giving a private cause of action), including subsections: (1) “knowingly accesses and without permission  . . . otherwise uses any data in order to . . . wrongfully control or obtain . . . data;” (3) “knowingly and without permission uses or causes to be used computer services;” (6) “knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section;”  and (7) “knowingly and without permission accesses or causes to be accessed any computer, computer system or computer network.”  Violation of these sections can range from a misdemeanor to a felony.

Like the Tennessee law, sections 1, 3 and 7 apply to the friend who is using the account without permission of the streaming service.  Section 6 applies to the account holder who is sharing the account with a friend without the permission of the streaming service.

It Might Be A Federal Offense

The Computer Fraud and Abuse Act offers broad protection against unauthorized access to computers.  It has been amended a half dozen times in its nearly 20 year history, and likely covers password sharing that is beyond the scope of the terms of service of a streaming account.

18 U.S.C. § 1030(a)(2) makes it a crime to “intentionally access a computer without authorization or exceeds authorized access, and thereby obtains . . . (c) information from any protected computer.”  A “protected computer” is defined by 18 U.S.C. § 1030(e)(2) as any computer “which is used in or affecting interstate or foreign commerce or communication.”  A streaming service’s streaming servers undoubtedly qualify as a protected computer under the Act as they stream their stored media all across the country.

Using a third party’s password to access a streaming service clearly “exceeds authorized access” as it is beyond the scope of the access defined in Netflix, Hulu Plus, or HBO Go’s terms of use.  The user of the password is “obtaining information”―the streamed media―from the protected computer.

An interesting wrinkle is that the Act arguably has a jurisdictional requirement of $5,000 in damages over the course of one year.  18 U.S.C. § 1030(c)(4).   This would probably be hard for a streaming site to demonstrate, especially against an individual who is making use of a friend’s password.  However, it would be easier to meet the limit for the primary account holder who decided to share the account with a group of friends.  All it takes is sharing a $20 dollar a month account with 21 people to meet the $5,000 threshold.

So what does all of this mean?  Sharing an account with members of a household is just fine under Netflix, Hulu Plus, and HBO Go’s terms of use.  Arguably this extends to children of the account holder who are away at school but whose primary residence is still the family home.

But sharing the password with people outside of the household or using someone else’s account opens up the potential for liability.  Not only does sharing a password expose the primary account holder to the possibility of a claim of breach of contract, it also gives rise to various causes of action under both state and federal law for everyone involved.

At the moment none of the sharing services seem to care all that much, and it would be easy for them to mitigate their exposure to shared accounts by simply limiting the number of devices that the account can be used on simultaneously.  Some seem to view account sharing as a marketing tool.  But all that may change without notice.  Sharer beware.

© 2016 Proskauer Rose LLP.


[1] Todd Spangler, Cord-Cutting Gets Ugly: U.S. Pay-TV Sector Drops 566,000 Customers in Q2, Variety (August 8, 2015).

[2] Is it Okay to Share Log-Ins for Amazon Prime, HBO Go, Hulu Plus, or Netflix?, Consumerreports.org (Jan. 28, 2015).

[3] Netflix User Profiles, Netflix (Jan 14, 2016) https://help.netflix.com/en/node/10421.

[4] Terms of Use, Netflix (Jan 14, 2016) https://help.netflix.com/legal/termsofuse.

[5] Sarah Perez, Netflix CEO Says Account Sharing is OK, TechCrunch (Jan 11, 2016),

[6] Terms of Use, Hulu (Jan 14, 2016), http://www.hulu.com/terms

[7] Terms of Use, HBO Go (Jan. 14, 2016), http://www.hbogo.com/#terms/

[8] Greg Kumparak, HBO Doesnt Care if You Share Your HBO Go Acccount . . . For Now, TechCrunch (Jan 20, 2014),

[9] http://www.capitol.tn.gov/Bills/107/Bill/HB1783.pdf

Positive Media Exposure: Elevate Your Practice and Your Firm

Legal Marketing Association Southeastern Chapter

Your business is on the rise yet every time you scroll through your news feeds, read the newspaper, or watch a news show, you find your competitors highlighted everywhere instead of you and your business. You want this kind of coverage, but you are short on time due to your demanding work schedule, board activities, community involvement and family engagements. Dealing with the media also feels uncomfortable and you fear that reporters will not tell the story correctly. Sound familiar? This is what we discovered when we asked our clients (i.e. very smart lawyers we love to work with!)

To be fair, media interviews can be a daunting experience for almost anyone. These feelings are compounded by the notion that subject matter experts may believe that reporters and interviewers are out to get them. The truth is, the media should be treated just like a client. A great majority of reporters are cordial people who are assigned to cover a story on a topic. It is their job to talk with various sources, research the topic, and educate the public. Yet, almost always, reporters are on deadline while juggling other priorities assigned to them on any given day. Their challenge is to collect a depth of accurate information in order to inform the public and meet a tight deadline. Does that sound like a client? Have you ever received a call or an email from a client who needs to know the latest on a particular issue and has questions they need answered right away? It’s not that either is out to get you, rather each need to be educated so that they can succinctly and accurately inform their audience, be that a reader or a senior executive.

What you must realize is that the interviewee is often more knowledgeable on a subject than the interviewer, therefore you should approach the interview with full confidence and take advantage of the opportunity to provide useful and practical information. After all, this is your opportunity to shine and help educate the public. Here are some tips to ensure a successful media interview:

  • Similar to preparing for a case, successful media messages depend on preparation. Pick a story angle ahead of time and stick to it thought the interview. This bolsters your ability to serve as a subject matter expert.

  • Consider all of the difficult questions that may be asked and prepare answers. This critical step will help you from being caught off guard.

  • If you are asked a challenging question that you did not consider or are asked to talk about something that you simply can’t discuss, you can maintain control of the interview by using bridging techniques with phrases like: “before we leave the subject, let me add that …” “And the one thing that is important to remember is …” “While this is important, it is also important to remember that…”

  • Reporters love to use research and statistics in their stories as much as lawyers do. Feel free to prepare some stats and takeaways for reporters to help emphasize the story angle you are trying to promote.

  • Reporters are trained to listen. Just because a reporter puts away a notebook, a microphone or turns off a tape recorder doesn’t mean the interview is over and you can say anything without it being used.

  • Reporters hate when someone misleads or lies to them. They don’t like it when their stories have to be corrected through no fault of their own and because of inaccurate information provided to them. Accuracy is a gold standard for reporters. Help them achieve it and you can bet they will come back to you with another interview opportunity.

  • Instead of using industry jargon, speak in simple terms to appeal to the general public and potential clients. The reporter will most likely use those comments word-for-word which earns more thought leadership clout.

  • Body language can be just as important as words. Keep your arms loose and gesture naturally. This will help you appear calm and confident. Don’t cross your arms, your legs or put your hands in your pockets. Strive for a relaxed and happy face. Again, you are the expert who has the opportunity to share your knowledge.

  • Some reporters will ask you to spell your name on camera or tape so the editors can include it in the caption. If they don’t, be sure to spell your name and your firm’s name so they can include it in their story correctly.

  • Whether your story appears online, in print, radio or on television, don’t forget to engage in the digital space. Update your social media channels, website and blogs before and after the interview to continue the growth and expansion of your online brand.

Representing your business and knowledge base to the public is extremely important for you and your practice. Keeping these general media tips in mind puts you at a greater advantage to deliver a successful message and stay in front of your clients. With this said, remember to stay positive and have fun! And of course, call the Marketing Department or your public relations representative to work on a customized approach for each story.

ARTICLE BY

OF

10 Insights You Want to Gain from Your Social Media Monitoring

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If you are participating in social media for your law firm, you should also be monitoring whether or not your time investment is paying dividends.

Social Media Insight

You should be creating Google Alerts or searching on Social Mention for the name of your law firm and the names of your attorneys at least once a month.  Create alerts for the areas of law you practice as well.  The social media blog site Buffer recommends you keep these 10 insights in mind when reviewing your results:

Sentiment — Are mentions generally position, neutral or negative?

Questions — Look for questions people may have that you can provide the answers to in your social media posts or blogs.

Feedback — If you see feedback on Avvo or Yelp or some other site that directly affects your firm, you need to listen and respond appropriately.

Links — keep track of who is retweeting or reposting your content and keep track of who is linking back to you.

Pain points — absorb what people are talking about online that is of concern to them and use that information to inform your future posts.

Content — this is where your alerts for your practice area come in handy.  Use these to mine for topics of interest to your target market.

Trends — recent court decisions or trending news in your practice area should be included in your posts so it is clear you are on top of all the trends.

Media — journalists spend a lot of time online so pay attention to the areas they are covering that might provide you with an opportunity to reach out as a spokesperson on those subjects.

Influencers — are there certain individuals who keep popping up in your feeds?  They may be someone it would be advantageous for you to know as an industry influencer.

Advocates — monitoring is a great way to find and recognize those people who are talking positively about you online.

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The 7 Blocks to a Firm Marketing Foundation: Block One

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Being a successful attorney is something that takes more than just knowledge of the law. It’s an unfortunate fact that many attorneys will find themselves faced with. You may be the best lawyer in your city or even state, but no one will ever know that if you don’t make a point to make yourself known.

Now, people have heard me say these tips at events, but I’m going to give you the information because I’m committed to making the attorney dream come true. The dream we all had when we entered into law school of the firm with our names on the sign, with the staff that handles things well and the cases that we enjoy doing. I know that dream because I’ve managed to achieve that dream.

The foundation of achieving this dream is much easier than you would expect. It’s built on 7 solid blocks.

Block number one: Videos

When someone visits your website, they’re subconsciously looking for something that is different; something that they don’t see on other lawyer websites.

If you have a set of videos available to them, they’ve found that one thing.

Videos are some of the most important parts of my firm marketing foundation; they are one of the things that I will probably never give up.

When a potential client goes to your website and watches a few videos, the information that you relay causes a psychological trigger that makes them trust you more. The more videos you have on your website (and even YouTube) can (and probably will) start the ball rolling for a good attorney-client relationship.

You may be wondering what exactly you should even make videos on, especially since some states have strict restrictions on things that could be construed as legal advice.

One of the things that I’ve found to be most popular with consumers is a Frequently Asked Questions series. Think of the 5 (or more) questions that you hear from almost each person you meet with.

These are questions that you could probably answer in your sleep and find yourself repeating the same information up to 10 times a day. You already know how to answer these particular questions in a short way that gives the most information because of the frequency of which you actually hear them.

Those questions are not going to go away, you hear them every day because people want to know those answers. If you take some time to film the answer to each of those videos and produce a series of one a week for however many weeks, you’re going to see some changes. Instead of having to answer the questions day after day, the people you meet with will have the answers or, if they haven’t had a chance to see the video yet, you can just send them the link and they’ll be even more impressed.

Videos are marketing tools that never stop working. A video can answer questions for you, 24 hours a day, 7 days a week, 52 weeks a year.

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The 20 Best Law Firm Tag Lines

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Is your firm “Committed to Mediocrity™”?

Tag lines are hard – a few strategically selected words that encapsulate everything you stand for and want your target audience to know about you. It’s the slogan that tells your own people how to act, what makes them different, and help them bring in business. Does your firm have one? Does it stand out? Is it unique and memorable?

Consider FedEx’s brilliant “When it absolutely, positively has to be there overnight.” Nine simple words that tell FedEx buyers precisely what they’re going to get, while simultaneously informing all of its employees what their mission is, and its vital importance.

Law firms tend toward weak platitudes like “Committed to clients” or “Results Matter!” or “When Success Matters!” These vague “we’re totally awesome” statements makes a firm feel good about itself but aren’t specific enough for your lawyers or employees, or differentiating for your target market. They apply equally to nearly every firm in the market (when don’t results matter…?). They’re easy for a committee to agree on (“Good idea; let’s tell people we’re smart!”), but they don’t set you apart in a strategic way that generates revenue. What if FedEx’s slogan was “We mail things!”?

Would Nike be as successful if it allowed a marketing committee to red-pencil “Just do it” into “When you need great shoes”? How would BMW’s vision change if “The Ultimate Driving Machine” became “Your Car Matters!”

Here are law firm tag lines from the Feb-April 2011 issues of Inside Counsel magazine, a publication where many large firms advertise.

  • National Firm. Midwest Value.

  • Driving Business Advantage.

  • The confidence to proceed.

  • Canadian Lawyers.

  • Deep relationships. Forward thinking. And not just one lawyer. A team.

  • More together.

  • Top of Mind.

  • Singular focus. Outstanding results.

  • Intellectual property law by the numbers.

  • Driving Business Advantage.

Do you know which law firm is “More together?” Which firm gives you “the confidence to proceed” or “drives business advantage”? How does “Top of Mind” benefit a client?

Here are some examples of brand-related messages we’ve created that are clearer and catchier. They help define the firm internally and externally. They set the tone and help the firm stand out in a meaningful way. They give the lawyers something to say in new-business meetings when the prospects ask, “How is your firm different?”

They act as the platform for a larger campaign that helps the lawyers sell new business. It aids recruiting by defining the personality type and skill set of the laterals they should seek to hire.

Below are twenty law firm tag lines to compare and consider, that support a range of firms, practices, industries, and strategies. They are, of course, just a small part of larger campaigns, but their role can be significant in setting the tone, breaking the ice, and helping create a dialogue. OK, maybe they’re not the nation’s 20 absolute best law firm tag lines, there are some pretty good ones out there, but these are a pretty good start.

Two hours. Period.™

Laner Muchin, Chicago. The world’s most-responsive law firm. A labor and employment boutique where every client phone call is returned within two hours, even less in emergencies.

Seriously Unbelievably Client Service.™

Sandberg Phoenix, St Louis. The nation’s first firm to offer clients a written service guarantee. Their clients rate them an A+ in objective surveys.

Small but mighty.™

Novack and Macey, Chicago. A small litigation powerhouse with an amazing record of success at trial.

Article by:

Ross Fishman

Of:

Fishman Marketing, Inc.