Practice

Advertising & Marketing

Because your word is your business

We have a long record of successfully representing global brands and services in regulatory proceedings, government investigations and disputes involving the promotion of goods and services. Clients rely on our sound, practical advice to achieve their marketing goals while minimizing business risk.

Our team includes former state and deputy attorneys general who bring a wealth of experience to every case. We’ve successfully represented clients in matters that include false advertising, food-related class actions and claims alleging defamation, commercial disparagement or violations of consumer protection statutes.

We regularly provide counsel to clients in consumer class actions and disputes before the Better Business Bureau’s National Advertising Division (NAD), whose decisions represent the single largest body of advertising decisions in the United States. We also represent businesses in proceedings before the Federal Trade Commission, Food and Drug Administration and state attorneys general. We provide compliance advice to avoid disputes and review ads and public statements to assess potential legal risk. Our lawyers manage the legal affairs of clients before NAD’s programs of the Advertising Self-Regulation Council, including the Electronic Retail Self-Regulation Program and the Online Interest-Based Advertising Accountability Program.

Areas of Focus

Our attorneys have extensive experience in all of the legal issues affecting a business’s ability to promote its offerings, including:
  • Claim substantiation
  • Lanham Act false advertising
  • Social media promotions
  • State unfair competition
  • Trademark
  • Copyright
  • First Amendment protection for commercial speech
  • Product disparagement
  • Right of publicity
  • Keyword advertising disputes
  • Sweepstakes and contests
  • Privacy and data security
  • Food-related and other class actions
  • FDA labeling rules
  • Consumer protection

Experience


ADVICE & REVIEW
  • Advised clients regarding state and federal regulations concerning claim substantiation and the sufficiency of studies to support proposed claims.
  • Reviewed advertising materials and campaigns for compliance with relevant laws and regulations, including Federal Trade Commission guidance, false advertising laws, intellectual property rights and issues regarding social media and internet advertising.
  • Drafted social media marketing policies, intellectual property policies, website terms of use, sweepstakes rules and privacy policies. 

FALSE ADVERTISING LITIGATION
  • Represented multiple food and beverage companies in false advertising disputes with competitors in federal court.
  • Representing a software manufacturer in a Lanham Act false advertising litigation challenging comparative claims in an alleged survey-based research paper commissioned by a competitor
  • Representing a consumer product manufacturer in a Lanham Act false advertising litigation challenging false and misleading animation depicting the operation of client’s product
  • Successfully represented a major automobile company in the U.S. Court of Appeals for the First Circuit in a dispute with a dealer over internet advertising policies and practices. 

CLASS ACTIONS
  • Worked with numerous consumer products companies in proposed class actions based on allegedly false advertising and marketing practices, avoiding certification of a class in every case.
  • Handled actual and proposed class actions around the country alleging that our client falsely advertised insurance policies, defeating class action certification and obtaining favorable verdicts, dismissals or settlements in all cases.
  • Defended a consumer class action against health club chains and transportation companies based on alleging illegal terms in its member agreements, obtaining a dismissal that was affirmed on appeal.

NAD
  • Brought a NAD action based on a comparative advertising campaign, resulting in a successful and groundbreaking decision providing guidance as to whether and how advertisers can recirculate social media posts of consumers.
  • Defended a food manufacturer in a NAD proceeding involving the calculation of nutritional information, as well as in a companion court case, which involved the complicated interplay between the NAD and court rules.
  • Defended a client accused of violating NAD’s little known anti-disparagement and anti-denigration rules in the context of a puffery-based ad campaign.

REGULATORY PROCEEDINGS (FTC, FDA and STATE ATTORNEYS GENERAL)
  • Worked on behalf of clients going before the Federal Trade Commission, including in connection with advertising claims in the fields of health, wellness and cosmetics.
  • Represented parties before the FDA with respect to labeling and advertising inquiries involving our clients or our clients’ competitors.
  • In conjunction with our State Attorneys General practice, represented clients before the attorneys general of New York and Massachusetts with respect to allegations of unfair and deceptive trade practices, false advertising and unfair competition.