Consumer Class Actions

In recent years, every detail of advertising and marketing has come under scrutiny by enterprising class-action plaintiffs’ counsel. Our first priority is to counsel clients to give consumer classes no legitimate basis for a complaint.  When they do sue, we litigate from a position of strength, pushing plaintiffs hard on the merits of their claims and the viability of their purported classes and damages models.Our attorneys have had the experience of:

• Successfully representing numerous consumer products companies in proposed class actions based on allegedly false advertising and marketing practices, often avoiding certification of a class.
• Representing an infant formula manufacturer in a class action alleging misleading communication of allergy information, devising an expert strategy that defeated the plaintiffs’ theory of class-wide damages on summary judgment.
• Defending a beverage manufacturer from class-action allegations that its label overstated the amount of the featured juice contained in its product.
• Defending several packaged food companies in class actions alleging false or misleading labeling and featuring of ingredient and nutrient content.
• Handling 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.
• Defending a consumer class action against health club chains and transportation companies based on alleged illegal terms in its member agreements, obtaining a dismissal that was affirmed on appeal.
• Defending numerous food and beverage companies against class allegations of overstated nutritional claims and the false implication that their products are “natural,” “wholesome” or “nutritious.”

National Advertising Division

NAD is America’s premier alternative forum for the resolution of advertising disputes among competitors.  Our attorneys have been appearing before NAD for decades, including participation in the 2015 assessment of advertising self-regulation by committees of the American Bar Association Antitrust Section.  On behalf of challengers, our lawyers have secured difficult victories, including convincing NAD to recommend, and the NARB to affirm on appeal, discontinuation of an advertiser’s trademarked brand name as inherently deceptive.  Just a few of the cases our attorneys have handled at NAD, either as challenger or advertiser, include:

• Bringing an 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.
• Challenging misleading comparisons of credit card rewards and redeemability.
• Defending a client accused of violating NAD’s little known anti-disparagement and anti-denigration rules in the context of a puffery-based ad campaign.
• Winning a challenge against a competitor’s comparative claims of how much area is covered by competing cans of spray paint.
• Challenging whether a beverage is misleadingly disparaged when an actor is shown discarding it, with apparent disgust, in favor of the advertised beverage.
• Defending the disputed biodegradability of plastic newspaper delivery bags.
• Successfully defending a challenge to a house paint’s advertised ability to reduce ambient odors in rooms with which it is painted.
• Fending off claims of inadequate substantiation for superior skin moisturization in a beauty product.
• Supporting cholesterol benefit claims for a butter substitute product.
• Clawing back allegations that something “smells” about an advertiser’s claims of odor control for its cat litter.
• Defending a food manufacturer 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.

Lanham Act Advertising Litigation

Advertising disputes between competitors sometimes escalate to the point where a plaintiff feels it needs enforceable injunctive relief or monetary damages. In such situations, the federal Lanham Act provides a federal cause of action for false advertising. Our attorneys have litigated Lanham Act advertising cases all the way through jury trial on both sides of the “v.”, and in all parts of the country, with experience including:

• Representing a major national jewelry retailer as the plaintiff in a Lanham Act false advertising case over a competitor’s deceptive marketing of the quality of its diamond jewelry.
• Defending a shower head manufacturer against a competitor’s allegations that it misstated its water flow rates and its compliance with environmental regulations.
• Successfully representing 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.
• Challenging a pet food maker’s claims that its product contained no poultry by-products.
• Successfully defending a Lanham Act advertising case for a major beverage company accused of misleadingly promoting the amount of a particular juice in its blended juice product.The client was absolved by a California jury at trial.
• Obtaining a $20.7 million jury verdict and permanent injunction for a client in a false advertising case under the Lanham Act.
• Defending a generic dietary supplement manufacturer sued by a competitor for alleging comparing its active ingredient content with a branded product.At trial, client prevailed both on its defense and on its counterclaims.
• Litigating a two-way injunction battle between rival makers of smoking cessation aids, each contending that the other falsely advertised its product’s efficacy.

Government Investigations and Enforcement

Unfair and deceptive practices are policed at all levels of government.  The Federal Trade Commission enforces the FTC Act and several other federal statutes, bringing investigations and actions that require advertisers to substantiate their marketing claims.  State Attorneys General often have similar authority under their states’ “little FTC Acts” and other state unfair and deceptive trade practice laws. Even counties and municipalities enforce local consumer protection laws on subjects such as false “sale” pricing. We zealously represent our clients in the Beltway, the state capitals, and in local jurisdictions across the country. Our attorneys’ cases include:

• Opposing FTC allegations that a major house paint manufacturer understated the volatile organic compounds (VOCs) emitted by its interior house paints.
• Representing a dietary supplement marketer in an FTC investigation of the purchase of allegedly false product reviews on a major marketplace web site.
• Defending a maker of automotive engine treatments in an FTC administrative proceeding alleging that it overstated claims for prolonging engine life and improving performance.
• Representing a company in an FTC investigation focused on the claims that nutritional supplement was tailored to the consumers’ DNA.
• Representing parties before the FDA with respect to labeling and advertising inquiries involving our clients or our clients’ competitors.
• Responding to state Attorney General allegations that a dietary supplement maker misrepresented the herbal ingredients that it contained.
• Representing private University in Massachusetts Attorney General and U.S. Senate inquiry into marketing claims.
• Representing 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.