The Advertising Group at Skadden, Arps, Slate, Meagher & Flom LLP and affiliates (“Skadden”) routinely handles truth-in-advertising and claim-substantiation disputes and counseling, primarily for nationally known businesses offering consumer products and services. We have considerable experience prosecuting and defending false/misleading advertising claims brought under Section 43(a) of the Lanham Act, as well as defending Federal Trade Commission and other regulatory investigations. The group, along with attorneys from other Skadden practices, also defends state-law consumer class actions relating to allegedly deceptive advertising and consumer marketing practices.
We frequently represent clients in advertising disputes before the National Advertising Division and the Electronic Retailing Self-Regulation Program. Our attorneys, several of whom have science degrees and pharmaceutical industry experience, are often called upon to help evaluate claim substantiation, especially in the context of over-the-counter drug advertising and in the areas where claim support is based on clinical testing.
The firm also assists clients in working with the Broadcast Standards staffs of the major national television networks in obtaining network clearance for new advertising. In dealing with claim support issues, we often review copyright, trademark and right-of-privacy/publicity issues.
Skadden was named to The National Law Journal’s 2013 “Intellectual Property Hot List” and ranked as a nationwide Tier 1 firm for Advertising Law by U.S. News — Best Lawyers “Best Law Firms” 2013.
Our recent significant advertising experience includes representing:
- Anheuser-Busch, Inc. in a successful advertising challenge against claims being made by rival MillerCoors LLC for Miller Lite. During the summer of 2009, MillerCoors “named” the metal cap on Miller Lite bottles the “Taste Protector Cap,” and the lid on Miller Lite cans the “Taste Protector Lid,” and began running advertising announcing that these features were new and provided Miller Lite beer with “special” protection. Anheuser-Busch challenged MillerCoors’ claims at the NAD, which sided with Anheuser-Busch.
- Fresh Del Monte Produce, Inc., the exclusive licensee of the DEL MONTE trademark in connection with the sale of fresh fruit, vegetables and produce, in an ongoing false advertising lawsuit in the Southern District of New York against Del Monte Corporation (DMC) alleging that the packaging and labeling of DMC’s preserved fruit products, as well as DMC’s national “Fruit Undressed” advertising campaign, mislead consumers to believe that DMC’s processed fruit products are fresh.
- GlaxoSmithKline Consumer Healthcare in a successful Lanham Act lawsuit challenging a competitor’s advertising claims for a cold sore remedy.
- OPI Products, Inc. in a successful NAD challenge to advertising claims made by Coty, Inc. in support of Coty’s launch of Sally Hansen Complete Manicure.
- Revlon Consumer Products Corporation in its successful challenge of Clairol, Inc.’s superiority claims for a hair coloring product, Clairol Balsam Lasting Color.
- Stiefel Laboratories, Inc. in responding to an ERSP review of its advertising of a new over-the-counter acne medication.
- Verizon Wireless Inc. in a lawsuit brought by AT&T challenging Verizon’s 3G advertising campaign, “There’s a Map for That,” in which Verizon uses nationwide maps to compare the geographic scope of its 3G coverage with AT&T’s 3G coverage. The U.S. District Court for the Northern District of Georgia denied AT&T’s request for emergency injunctive relief, ruling that the ads were not literally false or misleading.
Virgin Mobile in:
- the unanimous affirmance by the New York Appellate Division, Second Department, of a dismissal of a deceptive trade practices and breach of contract putative consumer class action. The plaintiff commenced the action on behalf of herself and all New York state residents who purchased Virgin Mobile cell phones, alleging that Virgin Mobile had failed to advise them of certain terms and conditions of its “pay-as-you go” wireless service plan. In affirming the lower court’s dismissal with prejudice, the Appellate Division found that, contrary to the plaintiff’s assertion, Virgin Mobile had no obligation to disclose the relevant pricing terms on its product packaging, and that the disclosures Virgin Mobile did make were adequate under New York law;
- obtaining dismissal on behalf of Virgin Mobile of four separate putative class action complaints challenging certain of its advertising, subscription and billing practices; and
- a litigation against Metro PCS Communications, Inc., a competing wireless carrier, in the U.S. District for the Southern District of New York alleging false advertising in MetroPCS’s advertisements that claim that Metro PCS offered “unlimited nationwide coverage” and “unlimited calling.”
XM Satellite Radio Inc. in:
- a putative class action lawsuit brought by a New York consumer in the U.S. District for the Southern District of New York. The plaintiff alleges that XM failed to provide customers with notice of the renewal of their service contracts for XM Satellite Radio as required by New York General Obligations Law Section 5-903 and has engaged in a deceptive act or practice in violation of New York General Business Law Section 349; and
- a putative class action on behalf of XM subscribers brought in New York State court challenging XM’s subscription practices as deceptive under state law.