Prosecuting and Defending False Advertising Cases
As economic factors squeeze advertising budgets and advertising content becomes more aggressive, companies are closely monitoring their competitors’ ads for false or misleading claims. Meanwhile, government regulators and the plaintiffs’ bar have been quicker to initiate investigations and lawsuits. Indeed, it’s not uncommon for an advertising campaign to face multiple and simultaneous challenges by a competitor, regulator and consumer class action lawyer.
Entrusting the prosecution or defense of such matters to an occasional practitioner is risky business, particularly in view of inconsistencies among different states’ laws, the frequent need for swift action to secure injunctive relief and the difficulties in proving damages in a digital environment, among other factors. Experience matters, and Manatt has one of the nation’s deepest benches of lawyers who are solely dedicated to handling advertising litigation and regulatory inquiries. We’ve also won some of the most important advertising cases of the past two decades. Such cases include federal and state court trials, FTC investigations and enforcement actions, National Advertising Division (NAD) proceedings, and individual and multistate enforcement actions brought by state attorneys general.
Managing Multiforum Cases
In addition to litigating novel competitive and comparative false or deceptive advertising claims in court, we have sparred outside the courtroom with the FTC’s Division of Advertising Practices, state attorneys general and in NAD proceedings. We've also managed and coordinated the defense of many multiforum cases, so we’re familiar with their unique challenges—from the weight an NAD decision carries with the FTC to the possibility that non-simultaneous settlements will produce inconsistent remedial obligations.
Contributing greatly to our litigators’ track record of success in defending and challenging advertising claims is their ready access to the lawyers of our advertising group. They have extensive knowledge of advertising law and doctrines, are well-versed in new media marketing campaigns and have a keen understanding of our clients’ marketing objectives and strategies.
Better Evidence Through Science
The close relationships we’ve cultivated with consumer research authorities have greatly enhanced our litigation capabilities. We have embraced the scientific method in our litigation strategy and have retained many of the nation’s leading consumer researchers at universities and top consulting firms to evaluate competitor and client ads for false or misleading claims. Through the use of empirical and measurable evidence, we have helped clients develop and strengthen the evidence necessary to prove their claims or refute those of their competition, and we can do the same for you.
Experience Across Brand Categories, Media Types
Through our long-standing representation of marketing communications agencies and advertisers across a broad spectrum of product and service categories, we’ve seen a lot of advertising trends and challenges, as to both content and placement across virtually every medium, from television, radio and print to direct mail, billboards and endcaps to Internet, mobile devices and social media. We are also familiar with every type of partnering arrangement.
Lanham Act Suits
Unlike many firms that claim to have “some experience” in Lanham Act false or misleading advertising cases, Manatt has brought and defended literally dozens of such lawsuits throughout the country that involved many of the nation’s leading brands. Not only do we know Section 43(a) inside and out, but we have also collaborated with the best marketing science experts to assess the impact of allegedly false or deceptive ads on consumer perceptions and behavior. In addition, our team includes an attorney who has handled some of the most high-profile, widely cited Lanham Act cases in the country.
The investigative arm of the advertising industry’s voluntary self-regulation program, the NAD monitors advertising claims made in traditional and new media, accepts cases filed by competing advertisers and initiates review proceedings based on complaints from local Better Business Bureaus, individual consumers and consumer groups. All of our advertising litigators have prosecuted or defended such challenges. Our familiarity with the review process, the staff attorneys who adjudicate such disputes and many of the professionals who sit on the National Advertising Review Board (NARB), which reviews appeals from NAD decisions, has helped us engineer more favorable outcomes for our clients.
Consumer Class Actions
While consumer class actions carry the threat of substantial damage awards, such actions are also subject to a high level of judicial scrutiny at the pleading stage, making them vulnerable to skilled and experienced counsel. Manatt has handled many such cases across the country and particularly in California, where we have an impressive track record defending clients in actions brought under the state’s false advertising law (FAL) and unfair competition law (UCL).
Few law firms have handled as many FTC investigations and enforcement actions as has Manatt. We have three attorneys who worked at the FTC and whose keen insight into how the agency works and the factors it considers in deciding whether to initiate enforcement activity has proved to be a true value-add for our clients. In addition, over the course of our many years representing clients before the FTC, we’ve developed a strong working relationship with Commission staff.
Our work in this area has included highly sensitive investigations, which we have expeditiously resolved by convincing the agency not to bring an enforcement action, either by legal argument and evidentiary substantiation, or by negotiating a cease-and-desist order, corrective advertising disclosure or other nonmonetary form of consumer redress. Where actions have been filed, our track record of resolving such matters by negotiating a significant reduction in civil penalties is second to none. On the other hand, when we’ve remained far apart on settlement terms, we’ve mounted an aggressive defense.
State Regulatory Enforcement Actions
We have significant experience representing clients that have been targets of investigations or lawsuits initiated by state attorneys general under various state consumer protection and deceptive practices acts, an increasing occurrence. Our frequent contact with state AG offices, both in connection with such matters and through our participation in programs sponsored by the National Association of Attorneys General (NAAG), the Conference of Western Attorneys Generals (CWAG) and similar organizations, has led to strong working relationships with many state AG offices.
Ranked Nationally for Advertising Law 2007–2015
Named 2015 Law Firm of the Year for Advertising Law
Ranked Nationally in Tier 1 for Advertising Law 2010–2016
Ranked Nationally for Marketing & Advertising 2009–2015
© 2016 Manatt, Phelps & Phillips, LLP. All rights reserved.