This article originally appeared in the April 2024 issue of Security Business magazine. Don’t forget to mention Security Business magazine on LinkedIn and @SecBusinessMag on Twitter if you share it.
John worked hard in college. He earned a degree in marketing and joined the marketing department of a large security company. Susie also worked hard in college. She also went to law school. After a few years in the private practice of law, she joined the legal department of the same large security company where John works.
John led the effort to develop marketing materials and user guides for his company’s residential security products and services. He did a great job with the graphic design and the colors. He endeavored to give useful information to the company’s customers about how to use their system, its features, how to reduce false alarms, and other helpful information.
John was eager to get his work to the printer and distribute it to new and existing customers. His company intended to publish these materials on its website and to supply a paper copy during new installations.
Not so fast John. Remember Susie? As legal counsel to the company, she must review John’s draft marketing materials and user guide. What a drag!
Lesson 1: Always consult legal counsel on your draft marketing materials.
John reluctantly complied and sent the marketing materials to Susie for a legal review. “Lawyers just get in the way,” he thought as he sent his work to her.
Susie scrupulously reviewed the documents. She liked the graphics and the color scheme; however, the contents needed to be revised. She was concerned that John – who was sales-minded in his work – over-represented the capabilities of the security system.
John reviewed the initial set of comments from Susie. It was just as he feared. She removed or modified all the good parts. John was concerned that he could not do his job effectively if he is restrained in how he promotes the company’s products and services. John wants to state that they are the best products and services around.
John discussed this with Susie – who explained that every state where the company does business has statutes that prohibit deceptive sales practices. False or misleading sales or marketing materials could put the company at risk. Worse, most of these laws allow a successful plaintiff to get treble damages (3x the jury’s determination) plus attorneys’ fees.
Even if these statutes did not exist, someone could sue claiming that they relied to their detriment on the functionality claimed in the marketing materials. Susie had an obligation to balance sales opportunities within the limitations of the law.
Lesson 2: Do not market products and services as infallible or intended to protect against every possible risk.
Susie then conducted a second round of edits of John’s work. This time, she focused on whether the content was appropriate for all potential users.
Susie concluded that John’s focus was too narrow. Some customers live in large houses and some live in small houses or apartments. The marketing materials had to be drafted to account for these different customers. For example, John’s initial draft described the ways that the company’s motion detectors worked; however, he described the functionality in a way that did not allow for different uses. For example, a customer in a large house may use such devices in low-traffic areas of their house more frequently than in high-traffic areas. A customer in a smaller home or apartment may not be able to arm their motion detector while they are home without substantially increasing the risk of false alarms.
While this should be self-evident, the marketing materials could be edited to indicate that the functionality listed is for a typical use and may not be appropriate for all users depending on the size and configuration of their home.
Lesson 3: One size does not fit all. Be sure that any description of the functionality of products and services is sufficiently general to allow for different uses, by different customers, in different settings.
Susie gave John the latest edits to the marketing materials. John understood that the functionality of the system had to be characterized generally and that a general disclaimer was useful. So, he accepted all of Susie’s edits and sought final approval from the senior executives of the company.
Those senior executives had one question for John: “Did Susie review and approve this?”
John responded proudly, “Yes, she did” (now realizing that a legal review was important to the executives because they know that lawyers are there to protect the company and sometimes can see other things that people with different skills cannot.
Lesson 4: Be nice to lawyers.
Timothy J. Pastore Esq., is a Partner in the New York office of Montgomery McCracken Walker & Rhoads LLP (www.mmwr.com), where he is Vice-Chair of the Litigation Department. Before entering private practice, he was an officer and Judge Advocate General (JAG) in the U.S. Air Force and Attorney with the DOJ. [email protected] • (212) 551-7707
