Advertising and marketing: litigation in United States
New York-based David Bernstein heads the team at Debevoise & Plimpton LLP, and is highly experienced in handling FTC and NAD cases, as well as federal court litigation. The firm is particularly notable for its strong practice in preliminary injunction cases involving expedited discovery, as well as cases involving internet advertising or other new technologies, where Jeremy Feigelson, a compatriot of Bernstein's in the New York office, is a key figure within the team. The firm also maintains a strong presence in the pharmaceutical industry, with Paul Rubin, who sits in DC, having a strong track record in the sector, often practising at the intersection of FDA and FTC regulation. At a more junior level, New York-based counsel Megan Bannigan is assisting Bernstein and fellow New Yorker Jyotin Hamid with their work with Merck KGaA.
Foundation Medicine, Inc.
Industrias AlEn S.A.
Novartis Pharmaceutical Corp.
- Represented BA Sports Nutrition, which produces the BODYARMOR sports drink, before the NAD and FTC in a challenge to its “Outdated” advertising campaign, which claimed that BODYARMOR’s competitor Gatorade was outdated, and which the manufacturer Stokley Van-Camp disputed.
- Debevoise represented Marketing Architects in an effort to resolve an investigation initiated by the Federal Trade Commission’s Bureau of Consumer Protection and the Office of the Maine Attorney General, concerning allegedly deceptive radio ads for weight loss products.
- Ancestry, which maintains the largest consumer DNA database in the world, engaged Debevoise to represent it in false advertising and trademark litigation against 23andMe, in which both parties alleged the other had made misleading statements in their advertising.
- Representing Merck KGaA in relation to a false advertising claim brought by American pharmaceutical company Merck (Known as Merck, Sharp, and Dome outside the US) alleging false advertising in relation to Merck KGaA’s 2015 advertising campaign celebrating its 125th anniversary in the Untied States.
- Defended Abbot Labs before the National Advertising Division in a false advertising claim brought by Atkins Nutritionals.
The well-regarded advertising litigation team at Kramer Levin Naftalis & Frankel LLP is particularly notable for its strong following in the pharmaceutical and consumer products industries, with recent high profile instructions in the consumer class action space, as well as competitor versus competitor disputes of both the Lanham Act and NAD/NARB variety. Veteran practitioner Harold Weinberger co-leads the practice along with Norman Simon. Both act for clients on high-level mandates across the entire sector and operate from the firm's new York office. Alongside its two high-profile seniors, the team also houses notable talents at a more junior level, such as Eileen Patt, also based in New York, whose notable instructions include the representation of radio broadcaster Sirius XM in a consumer class action alleging that it falsely advertised a subscription offer in violation of New Jersey law.
‘These folks are absolute experts in all matters related to advertising litigation, including particularly the Lanham Act and related state statutes. Additionally, both their written and oral advocacy are superb.‘
‘Harold Weinberger and Norman Simon are stars. True experts in the field. But they are also highly accessible and responsive. They will return the call on the weekend or evenings, quickly and cheerfully. They dig in deeply and keep you informed. You can tell that they really care and aren’t just collecting a check.‘
Johnson & Johnson
McNeil Consumer Healthcare
The Procter & Gamble Company
SPD Swiss Precision Diagnostics GmbH
The Gillette Company
J.P. Morgan Chase
T-Mobile USA, Inc.
- Secured the dismissal of a Lanham Act case against TrueCar, Inc. by 108 car dealers. Plaintiffs’ theory was that they were injured by supposedly false advertising that TrueCar provides a car-buying experience without “haggling”.
- Represented Revlon and its subsidiary Almay in a putative class action case alleging that the entire Almay line of products are Flaxley labelled as hypoallergenic, in which the plaintiffs voluntarily amended, and subsequently voluntarily withdrew the complaint following motions to dismiss.
- Successfully represented Procter & Gamble in an appeal before the National Advertising Review Board, which resulted in an affirmance of a successful decision before NAD recommending that Kimberly-Clark discontinue its claim that its Huggies Diapers are the fastest growing brand in hospitals.
- Representing third-party vendors of Anheuser Busch LLC in Millercoors, LLC v. Anheuser-Busch Companies, LLC, a Lanham Act action alleging that that Anheuser-Busch’s advertising and marketing of Bud Light communicates the false message that Miller Lite and Coors Light contain corn syrup as a final ingredient.
- Representing Zenlen in an appeal to NARB against Tom’s of Maine, seeking to reverse an NAD decision recommending discontinuance of the company’s claims that its Native brand deodorant “absorbs moisture” and provides “wetness protection.”
New York firm Patterson Belknap Webb & Tyler LLP provides a full service in advertising litigation, with recent instructions including high profile class actions, Lanham Act cases, and enforcement proceedings arising from regulatory investigations. The firm is also involved in follow-on cases arising from advertising disputes, such as its representation of pet food manufacturer Blue Buffalo in third-party claims against two of its suppliers, whose adulterated and falsely labelled ingredients exposed the company to substantial false advertising claims, both from competitors and consumers. The team is headed up by experienced litigator Steven Zalesin, who takes the lead on most of its complex and high-profile cases, with a significant practice across all major areas of the firm's practice. At a more junior level, the firm saw two recent additions to the partnership, as Jane Metcalf and Joshua Kipnees made the grade in early 2019.
‘Patterson Belknap are a great team with excellent understanding of class action litigation space, especially in the food, beverage, and pharmaceutical sectors.‘
‘Steve Zalesin and Jonah Knobler have a very in depth understanding of false advertising litigation and are in touch of all developments related to the space.‘
The Coca-Cola Company
The Hershey Company
Johnson & Johnson
L’Oreal USA, Inc.
Eli Lilly and Company
Blue Buffalo Company
The Nature’s Bounty Company
General Mills, Inc.
The Clorox Company
- Representing Clorox in a Lanham Act suit against competitor Reckitt Benckiser, the maker of Lysol products, alleging that several Lysol advertisements contain false and misleading comparisons to Clorox products.
- Represent Coca-Cola in putative class actions filed in California and New York alleging that the term “Diet” in Diet Coke is false because no-calorie soft drinks purportedly do not assist with weight loss or weight management, and can lead to weight gain.
- Represented Coca-Cola in a putative class action alleging that the claim “Made With Real Ginger” on packaging for Seagram’s® Ginger Ale was false and misleading.
- Represented Altice U.S.A. in an inquiry by the New York Attorney General’s officeinto whether the major internet service providers in New York deliver the broadband internet speeds that they advertise.
- Defending Johnson & Johnson Consumer Inc. (“JJCI”) in a putative consumer class action, filed in California federal court, alleging that JJCI’s “hypoallergenic” labelling statement on 19 Johnson’s Baby products is false.
Proskauer Rose LLP remains one of the strongest names in the advertising litigation scene, with recent mandates including large-scale class actions in the pharmaceutical and retail sectors. The firm also maintains a strong practice before the NAD, as well engaging in competitor versus competitor litigation under the Lanham act. The practice is jointly led from New York by veteran trial lawyer Lawrence Weinstein and Brendan O’Rourke. Other key names within the team include Baldassare Vinti and Alexander Kaplan, both of whom have significant trial experience in the advertising space and practice from New York. The firm leverages its strong position in other industries to the advantage of its advertising team, with a significant following in the sports industry. In addition to the strong senior contingent, the firm is home to two notable associates in Jeffrey Warshafsky and Jennifer Yang, with both developing a name in this field.
Church & Dwight. Co.
Ralph Lauren Corporation
National Football League
- Obtained dismissal of a putative nationwide class action complaint alleging that one of Church & Dwight’s prenatal vitamin products contained an amount of folic acid materially in excess of the amount advertised on the product label.
- Defending Ralph Lauren Corp. in two consumer class action deceptive advertising cases concerning alleged false pricing information in outlet stores.
- Advising PVH Corp., a global apparel company, in the defense of five class action false advertising cases alleging fraudulent discount price advertising at Calvin Klein, Tommy Hilfiger and Van Heusen outlet stores in California and New Jersey.
- Representing HanesBrands in a right of publicity suit brought in federal court, which alleges unauthorized use of a model’s image in advertising materials.
- Defended Church and Dwight in a consumer class action seeking redress for allegedly deceptive claims surrounding a biotin supplement.
Crowell & Moring LLP is active across the entirety of the advertising litigation space, with recent cases involving consumer class actions, Lanham act litigation, and the representation of clients in investigations by state-level and federal institutions. The firm is particularly notable for its National Advertising Division practice, with Washington DC-based Christopher Cole handling a large number of NAD cases in recent years, dealing with the full spectrum of false and misleading advertising claims. Cole jointly leads the group along with Dave Ervin , who also operates from the DC office and focuses his practice on the intersection of advertising law and intellectual property issues, and Holly Melton, who sits in the firm's New York Office and specializes in government investigations, enforcement, and litigation, as well as large-scale consumer class actions. The firm is also involved in cases concerning several of the advertising market's hot-button issues, such as falsified customer reviews on e-commerce and consumer review sites, as well as more traditional misleading technical and marketing claims. Michelle Gillette retired in July 2019.
AT&T Services, Inc.
Pret a Manger (USA) Limited
- Representing Inuit before the NAD in a dispute with tax preparation software provider TaxSlayer concerning the use of TrustPilot user reviews where competing software had been omitted by surveys and competitors had not been properly assessed.
- Defending Pret a Manger and Panera in several lawsuits over allegations that their foods cannot be advertised as “natural” or “clean,” respectively, because certain food items allegedly contain trace amounts of glyphosate, an active ingredient in certain pesticides.
- Defended AT&T in a false advertising suit brought by Sprint in relation to AT&T’s ‘5G Evolution’ service and the ‘Just Okay Is Not Okay’ ad campaign promoting the service.
- Assisting MillerCoors with its false advertising claim against Anheuser-Busch in relation to 2019 Super Bowl commercials which claimed that certain MillerCoors products contained corn syrup.
- Acted for Novartis in a dispute with Janssen Pharmaceuticals over the inclusion of skewed data in marketing materials for its psoriasis medication which presented Janssesn’s product as superior to Novartis’.
Kelley Drye & Warren LLP
Kelley Drye & Warren LLP houses a team capable of representing clients in the full spectrum of advertising disputes, with substantial NAD, class action, and FTC or state attorney general investigations and litigation. The firm is particularly prominent in Telephone Consumer Protection Act (TCPA) litigation, defending clients against both individual and class action lawsuits relating to telemarketing activities. Washington DC-based Christie Thompson leads the team, and is particularly experienced in acting for clients before regulatory bodies. Also located in DC is John Villafranco, who is well regarded in advertising litigation, and particularly so in the competitor versus competitor sector. The firm's class action defense cases are primarily handled from Parsippany by Lauri Mazzuchetti, who also frequently advises on regulatory investigations and non-class action TCPA cases.
Green Dot Corporation
- Representing Kohl’s Department Stores in both individual and consumer class action lawsuits concerning alleged violations of the Telephone Consumer Protection Act (TCPA).
- Advising Quincy Bioscience in connection with a false advertising claim arising from an FTC and NYAG investigation, which is currently on appeal having initially been dismissed.
- Advising LG in connection with an adverse NAD decision regarding the marketing of its OLED TVs.
Kirkland & Ellis LLP' advertising team includes several attorneys with technical backgrounds, and as such the firm is in demand for cases involving the substantiation and testing of complex marketing claims. Chicago-based Ross Weisman chairs the advertising group, with a practice including Lanham Act cases, and NAD and NARB work. Other key figures in the practice are Gregg LoCascio , who maintains a substantial advertising practice from the Washington D.C. office, and Chicago-based Robin McCue. The firm also defends clients in consumer class action cases, with recent mandates coming from the food and agriculture sectors, as well as general consumer products. In these class actions, the team often draws on the firm's wider expertise, enlisting members of the IP and litigation teams to service large-scale mandates.
‘Gregg LoCascio and Ragan Naresh are unparalleled experts. They are responsive, creative and aggressive. They understand the business practicalities when giving advice. I routinely refer other companies who need that expertise to Gregg and Ragan.‘
Abbott Laboratories Inc.
Sanderson Farms, Inc.
Verizon Communications Inc.
Charter Communications Inc.
WeWork Companies Inc.
Hill’s Pet Nutrition, Inc.
- Represented Syntera in a dispute and settlement negotiations for a series of individual and class actions concerning alleged false advertising of its genetically-modified Viptera corn seed.
- Secured, on behalf of Sanderson farms, a dismissal of false advertising claims brought by multiple non-profit organisations in relation to the alleged presence of antibiotic residues in its chickens.
- Kirkland represents FGF Brands, the maker of Stonefire® Authentic Naan in consumer class action false advertising litigation concerning the characteristics of its baking process.
- Representing Colgate-Palmolive in a putative class action lawsuit alleging false and misleading advertising relating to Colgate’s Optic White Toothpaste, securing a dismissal of the motion for class certification, which was subsequently upheld on appeal.
- Defended Abbott in a putative consumer class action alleging false and deceptive sales practices regarding Similac® Advance® Non-GMO infant formula, specifically that the product contained GMO-based ingredients.
Loeb & Loeb LLP's competitor versus competitor-focused practice spans its New York and Chicago offices, which house co-chairs David Mallen and Thomas Jirgal respectively. Mallen, a former deputy director of the National Advertising Division, is particularly notable for his work in relation to green or environmental claims, product testing, consumer surveys, and social media or influencer issues, as well as receiving instructions in the field of FTC and state regulatory investigations. Jirgal, meanwhile, focuses more on technological claims involving testing and statistical analysis, along with consumer perception issues in relation to implied claims. More broadly, the team handles federal Lanham act litigation, NAD representation and related appeals, along with its work in advertising-related IP, class actions, and investigations. Brian Heidelberger chairs the firm's advertising, marketing and promotions group.
Other key lawyers:
Morrison & Foerster LLP has a solid reputation for consumer protection work, acting for a variety of food and beverage manufacturers and distributors and other major consumer products companies in false advertising class actions and MDLs. In addition, the team handles TCPA litigation for publishers, automotive companies and a well-known global medical supplies distributor and healthcare IT company. The firm's class actions and mass tort group is jointly led by David Fioccola in New York and Erin Bosman, who divides time between San Diego and San Francisco. Other key figures in San Francisco include firm-wide litigation co-chair Tiffany Cheung and Claudia Vetesi, the latter of whom won a number of motions on behalf of Unilever in 2019. Los Angeles-based David McDowell jointly chairs the firm-wide litigation group alongside Cheung.
Costco Wholesale Corporation
The Kroger Co.
- Represented Unilever in winning two motions to dismiss on claims brought under various state consumer protection laws, fraud by concealment, breach of express warranty, and intentional misrepresentation.
- Representing FanDuel in over 40 multi-district litigation class action matters involving allegations of false advertising and misuse of confidential or proprietary information.
- Represent LexisNexis Risk Solutions and its subsidiary, Enclarity, a health-care information technology provider, in a putative class action alleging that Enclarity sent unsolicited advertising faxes in violation of the Telephone Consumer Protection Act (TCPA).
- Represent Fitbit before the CPSC in reporting requirements for its products and advise on new product development and risk mitigation, including media and public relations counseling, assisting with coordination of product testing, and advising on product warnings and labels.
- Secured a victory for The Kroger Co., by winning an early motion for summary judgment on claims brought under California’s consumer protection laws (the Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act).
Norton Rose Fulbright's key focus is on Lanham Act litigation and state law equivalents, with members of the practice area acting on mandates across the country. Additionally the firm has a solid track record in consumer class action matters at all levels of the court system, with group co-chair Jeffrey Margulies, who splits his time between the Los Angeles and San Francisco offices, coming highly recommended for his practice in this area. Fellow co-chair Saul Perloff sits in San Antonio and has a strong background as an intellectual property litigator. As such his practice focuses on the Lanham Act side of advertising law, with a particular following in the pharmaceutical, biotechnology, food, and consumer products sectors. The team was recently strengthened in the firm's Minneapolis office with the addition of IP and false advertising specialist Felicia Boyd, who joined from Barnes & Thornburg LLP in late 2019.
Other key lawyers:
Alfasigma USA, Inc.
Arbor Pharmaceuticals, LLC
Boltex Manufacturing, Co.
Mission Pharmacal Company
Neogenis Labs, Inc.
Standard Homeopathic Company and Hyland’s, Inc
Techtronic Industries Company, Ltd
Toyota Motor Corporation
- Representing plaintiffs Boltex and Weldbend in matters filed against two defendants, each alleging false advertising of carbon steel flanges, which are being marketed as normalized despite not meeting the required specifications.
- Representing Arbor Pharmaceuticals in a suit filed against ANI Pharmaceuticals, alleging that ANI falsely advertised a product as FDA-approved and as being a generic substitute for Arbor’s EryPed and E.E.S products.
- Obtained a successful jury verdict for client Standard Homeopathic Company and its subsidiary Hyland’s, a manufacturer of alternative medicine, in a class action trial involving allegations of false advertising in relation to the effectiveness of core product lines.
- Defending Toyota in a nationwide consumer class action alleging that it misrepresented the standard features on 2016 model year RAV4 vehicles, specifically that its brochure represented that certain RAV4 models had an auto-on/off headlight system as standard but were supplied only with auto-off headlights.
- Defending Neogenis Labs, doing business as HumanN, in a Lanham Act suit filed by non-practising entity Thermolife International.
Venable LLP is particularly prominent in the field of consumer class actions, with high-profile recent instructions in the consumer products, food and beverage, and dietary supplement sectors. The firm has a strong track record in claims concerning the labelling of products as natural, both in the food and general consumer products space, as well as claims alleging false or misleadingly advertised health benefits in the supplements and pharmaceuticals market. Roger Colaizzi leads the team from its New York office, with a wide range of experience including Lanham act litigation and regulatory enforcement. The firm's San Fransisco office houses Angel Garganta, who focuses on class action defense, both national and state level, in the food and beverage sectors, and is particularly active in issues which overlap with FDA regulation.
‘Angel Garganta and Michael Hecht really take the time to know a case and partner with the companies they represent.‘
Premier Nutrition Corporation
Advocare International, L.P.
- Defended Henkel Corporation in a consumer class action alleging that the ‘Natural Elements’ product line is misleading as it contains synthetic or artificial ingredients.
- Represents Sargento Foods in a putative class action alleging that certain Sargento shredded and sliced cheeses are falsely or misleadingly labelled as natural, when they are made from milk produced by cows fed GMO feed or given growth hormones.
- Represents Danone in its challenge to competitor Chobani’s advertising claims for a new children’s drinkable yogurt product, which falsely claimed the products contained 33% less sugar than Danone’s product.
- Represented Premier Nutrition Corporation in a false advertising claim concerning its Joint Juice dietary supplement product, where the plaintiff alleged that labelling which promoted the supplement’s general joint health benefits was misleading.
- Representing Topco Associates in a class action alleging that the usage of the word milk in its labelling of almond milk products is misleading.
Weil, Gotshal & Manges LLP's cross-practice advertising litigation team includes members with a strong background in intellectual property, class action defense, and antitrust law, giving it solid coverage across the spectrum of advertising disputes. Recent key sectors for the team have included pharmaceuticals and biotechnology, where the team has been primarily acting on competitor versus competitor litigation with a focus on proving or disproving technical claims, and on retail, where the firm has dealt with consumer class actions in multiple jurisdictions. The group is chaired by IP and Lanham Act specialist Randi Singer and the more consumer protection-focused Carrie Mahan, who sit in New York and Washington DC respectively. On the west coast, the firm houses a notable figure in its class action team: the Silicon Valley-based David Singh, who adds a level of tech-sector experience.
Other key lawyers:
Johnson & Johnson
Hilton Domestic Operating Company, Inc.
- Represented Janssen, a Johnson & Johnson company, in a false advertising lawsuit brought by Novartis in D.C. federal court related to promotional materials showing results of a head-to-head study comparing the two companies’ respective psoriasis treatments.
- Defending Celsee, Inc. against false advertising claims in Delaware federal court alleging that that Celsee’s advertising makes false representations about the efficacy of competitor 10X Genomic’s single-cell technology.
- Representing Starbucks in a high-profile consumer class action in New York federal court in which Plaintiffs allege that Starbucks across Manhattan have for many years been permeated with a toxic pesticide, contradicting their marketing claims that their products are prepared in a safe and natural environment.
- Representing AdColony in an ongoing putative class action in which parents of children who allegedly used a popular app allege that the defendants collected personally identifiable information from their children and used it to provide targeted behavioral advertising without parental consent.
- Defending Sanofi in a Lanham act suit brought by Mylan in relation to Sanofi’s Auvi-Q product as a counterclaim in an antitrust case.
Winston & Strawn LLP provides full coverage in advertising disputes, but is most well-known for its work on matters in the food and beverage sector, including claims dealing with the accuracy of labelling, the description of food as natural, slack-fill issues, and alleged health benefits. More generally, the firm handles both class actions and competitor versus competitor disputes across a wide range of sectors, as well as representing clients before the NAD and NARB. Chicago-based practice head Ronald Rothstein is active in a wide range of matters, but is particularly prominent in litigation dealing with the usage of natural in advertising, and its definition and limits. Additionally, several of the firm's high profile food and beverage sector mandates are handled out of Charlotte, NC by Amanda Groves, who is highly experienced in a wide variety of sector-specific issues. The firm saw one notable departure in 2019, when Stephen Smerek left for Foley & Lardner LLP in October.
Other key lawyers:
‘If you want the absolute highest echelon of litigation counsel, you will be hard pressed to find any better than Winston & Strawn. They approach complex matters pragmatically and are always on top of even the smallest issues. They are zealous advocates but take a collaborative approach to solving problems.‘
‘Amanda Groves, Jeff Wilkerson, and Joan Fife have provided me with outstanding counsel and have made my job as in-house counsel much more manageable. I never have to wonder if matters are being handled, and their proactive approach and knowledge and communication of complex issues leaves me with very easy decisions to make. I would recommend this team to any in-house practitioner that needs solid litigation support.‘
Costco Wholesale Corporation
Whitebridge Pet Brands LLC
The J.M. Smucker Company
North American Coffee Partnership
Raising Cane’s Restaurants
Associated British Foods PLC
- Obtained dismissal of a false advertising class-action suit filed in the Southern District of New York against Smucker and Ainsworth Pet Nutrition, which alleged that the word Natural on one of its dog food products was misleading as the product contained trace amounts of glyphosate, a weed killer.
- Represents Raising Cane’s in federal Lanham Act trademark and false advertising litigation against Top Secret Recipes, Inc.
- Winston represents the North American Coffee Partnership (a joint venture between Starbucks and PepsiCo) in a class action suit filed in the Southern District of New York alleging that Starbucks has falsely labelled white chocolate-flavored energy products.
- Representing Marzetti, a major producer of packaged foods, in a class action filed in the Eastern District of Missouri which alleges that Marzetti falsely labeled 29 of its salad dressings as containing no preservatives, when all allegedly contain xanthan gum.
- Defending The J.M. Smucker Company in a consumer class action alleging that the labelling of its 100% olive oil and 100% Canola oil non-stick sprays was misleading as the sprays also require propellants to function.