False Advertising Litigation: Affirmative Challenges, Defense Strategies, and Risk Mitigation

Andrew Lustigman | Olshan Frome Wolosky LLP

Andrew Lustigman offers comprehensive counsel to domestic and international clients on advertising, marketing and promotions matters and represents them in regulatory investigations, enforcement actions, and litigation. He chairs Olshan’s Advertising, Marketing & Promotions Group and co-chairs its Brand Management & Protection Group.

Marketers, advertisers, agencies and suppliers, among others, regularly seek Andy’s counsel regarding legal aspects of their advertising and promotional marketing businesses. He’s pragmatic and always looks for solutions that meet each client’s specific needs.

Andy advises them on the clearance of advertising, promotions, and marketing materials, and structures some of the most creative sweepstakes, games of skill, fundraising promotions, and other contests, development of social media programs, and direct marketing campaigns from both legal and compliance standpoints. He also conducts advertising and marketing due diligence in the context of mergers, acquisitions and investments. He is frequently called upon to help clients navigate the nation’s complex subscription marketing laws.

Andy advises clients across all media channels—social media, Internet, television, print, radio, direct mail, mobile, telemarketing, and other electronic media. He has significant experience with FTC and FDA regulatory requirements regarding health claims, advertising, labeling and distributing health-related products including OTC products, dietary supplements, medical devices, cosmetics, and medical foods. Clients also rely on Andy’s pragmatic approach in representing them in investigations, enforcement actions, and litigation brought by those agencies, the United States Department of Justice, the FCC, the U.S. Postal Service, state attorneys general, district attorneys, and other governmental authorities. Andy’s experience also extends to single-plaintiff, multiparty and class action cases and related commercial litigation alleging false and deceptive advertising, intellectual property-related claims, and corporate disputes, as well as a wide array of competitor advertising, IP and privacy challenges.

Proactive and strategic, Andy takes on emerging threats and conceives creative and aggressive defense theories to protect his client’s interests both in and out of court, including in alternative dispute venues. In prosecuting and defending his clients’ cases, he frequently appears in federal and state court and before the National Advertising Division of the Better Business Bureau.

Repeatedly recognized as a leader in his field and as an authority on advertising and promotional marketing law, Andy regularly appears on television, radio, and in publications such as The Wall Street Journal, New York Post, The National Law Journal, New York Law Journal, Inside Counsel, Bloomberg BNA, Law360, Mobile Marketer, and Luxury Daily, discussing important new cases and trends that advertisers and marketers need to know about. He has testified as an expert witness on advertising compliance in federal court.

A growing area of work Andy handles includes advising on and structuring a broad range of international business transactions. He also is retained by Am Law 100 and other leading firms as special counsel on advertising compliance matters in connection with their clients’ business investments.

In addition to maintaining his active practice, Andy is a co-managing partner of the firm and a member of its Executive Committee. He frequently speaks on advertising and promotional marketing law topics throughout the country and has been the publisher of Olshan’s Advertising Law Blog since its inception in the early 2000s.

Barry Benjamin | Kilpatrick Townsend & Stockton LLP

Barry M. Benjamin chairs Kilpatrick’s Advertising and Marketing group and is the managing partner of the firm’s New York office. His practice focuses on advertising, technology, and privacy, advising clients small and large, from multinational corporations to start-up ventures, across numerous industries including retail, fashion, gaming, telecommunications, cosmetics, food and beverage, consumer products, and technology. He regularly drafts and negotiates advertising, technology, and commercial contracts, assists clients with advertising review, social media engagement, and promotions marketing, represents companies in court, in competitor challenges and investigations through the self-regulatory advertising industry process (NAD, CARU), and in governmental and regulatory (FTC, State AG) inquiries and investigations.

I. Plaintiff side pre-litigation strategies and alternatives to consider | 1:00pm – 1:20pm

II. Plaintiff considerations in choice of forum, developing the complaint and satisfying the varying burdens of proof | 1:20pm – 1:40pm

III. Plaintiff analysis of whether a survey is necessary | 1:40pm – 2:00pm

Break | 2:00pm – 2:10pm

IV. Defendant side substantiation considerations, including pre-campaign and internal game-planning, puffery v. claims substantiation | 2:10pm – 2:30pm

V. Defendant response strategies, including involving experts | 2:30pm – 2:50pm

VI. Defendant evaluation of forums and burdens of proof: NAD versus Federal Court versus regulatory complaint, as well as the impact of an adverse decision and remedies | 2:50pm – 3:10pm