Mr. Villafranco's litigation experience includes consumer class action defense in state and federal court, and Lanham Act litigation involving Internet, telecommunications, fast food, dietary supplement and consumer product companies. A leading practitioner in this field of law, he represents clients in advertising substantiation proceedings and investigations conducted by the Federal Trade Commission (FTC) and state Attorneys General. Mr. Villafranco also represents challengers and advertisers before the National Advertising Division (NAD) of the Council of Better Business Bureaus and the National Advertising Review Board (NARB). In addition, he counsels clients regarding issues involving privacy, data security, electronic commerce, dietary supplement labeling, promotion and marketing, fair credit reporting, debt collection practices, truth-in-lending, health and safety claims, environmental marketing and standard certification.
Mr. Villafranco's clients include Internet service providers, wireless advertisers, international and domestic telecommunication companies, major retailers and direct marketers, as well as manufacturers of dietary supplements, degradable plastics, automobile tires, engine oils, home appliances and other consumer products.
An editor-in-chief of the American Bar Association (ABA) Consumer Protection Law Developments treatise and author of numerous articles on advertising law, Mr. Villafranco is an authority on a range of issues involving consumer protection law. He also is a frequent speaker at advertising law seminars and at ABA and FTC programs. He has conducted advertising law workshops for many corporations, including Sprint Nextel, America Online, 3M, Whirlpool, Burger King, BellSouth, R.J. Reynolds, XO Communications, Michelin and Bissell, among others. In addition, he has chaired the 2007 and 2009 ABA Conferences on Consumer Protection and the 2011 ABA Antitrust Section Spring Meeting.
Representative Experience
Consumer Class Actions
Successfully settled nationwide class action claims related to wireless carrier program changes and related disclosures.
On behalf of a wireless communications company, obtained dismissal of a class action complaint alleging deceptive billing practices.
Consolidated more than 30 cases challenging wireless telephone carriers' FCC program cost recovery fees. All Writs Act injunction and nationwide class settlement approved and upheld on appeal over objections.
Primary jurisdiction referral to FCC of putative nationwide class action suit challenging wireless carrier's recovery of number porting costs under the Communications Act. Suit subsequently dismissed with prejudice.
Obtained denial of class certification in an action challenging an Internet service provider's rebate fulfillment practices. Denial of certification upheld on appeal.
Represented two Internet service providers in several class action suits filed in Florida, California, Oklahoma, Illinois and New Jersey. Not one case advanced to class certification, let alone a decision on the merits. The California state appellate court issued an opinion in one of these cases that was especially important. That decision affirmed the LA County Superior Court decision sustaining our client's demurrer to the complaint for failure to state a cause of action for violation of the Consumer Legal Remedies Act, Unfair Competition Laws and False and Misleading Advertising Laws.
Lanham Act Litigation
Challenged comparative superiority claims made by an appliance manufacturer for its steam vacuum products.
Successfully defended motions for temporary restraining order (TRO) and preliminary injunction seeking to enjoin the launch of a leading quick service restaurant's new steak burger sandwiches.
On behalf of a telecommunications provider, obtained preliminary injunction in federal court in Atlanta enjoining the defendant's claim regarding the speed of dial up service.
Challenged implied superiority and establishment claims made by a competitor wireless communications company in connection with a new product launch.
Defended allegations brought by a competitor regarding a leading quick service restaurant's advertisements for its original chicken sandwich.
Representation Before the NAD and the NARB
Represented the maker of an over-the-counter allergy drug in an NAD challenge regarding comparative onset-of-action claims. The NAD ruled in favor of our client on all material points.
On behalf of an appliance manufacturer, challenged a competitor’s unqualified germ killing and health-related cleaning and performance claims, endorsement and testimonial claims for ultraviolet vacuum. The NAD recommended that several of the competitor’s claims be discontinued and expressly qualified.
Defended one of the world’s largest consumer electronics firms in a competitor challenge regarding advertising claims comparing the company’s plasma televisions to competing LCD televisions. The NAD determined that our client had reasonable basis and substantiation for the principal claims, and recommended one modification.
On behalf of a chemistry trade association, successfully challenged advertising claims made by the maker of baby bottles. The claims at issue attempted to exploit a minority of scientific opinion in the sale of baby bottles that do not contain bisphenol-A. The NAD agreed that the claims were unsubstantiated and recommended that they be discontinued.
Challenged claims for a deep cleaner that it maintains the temperature of the cleaning water and has maximum suction power. NAD recommended that the claims be modified to more accurately reflect the features and capabilities of the product.
Challenged the maker of a dietary supplement on the substantiation of product performance, exclusivity and testimonial claims in advertising. The ERSP recommended that they modify diet/beauty pill advertising claims.
Challenged a competitor, initiated by our client, the maker of dietary supplement products. The basis of inquiry was substantiation of establishment, performance, comparative and testimonial claims in advertising. The competitor voluntarily discontinued advertising and was advised about future efforts.
The NAD found in favor of our client, an Internet service provider, in a challenge that we brought concerning a competitor's advertising, which compared DSL and cable broadband service. The challenged ads included commercials that poked fun at DSL service and employees, and claimed that all DSL plans have hefty termination fees and annual contracts. We also challenged the competitor’s website claim that it had the “fastest Internet access."
Challenged advertising claims of a deep cleaner vacuum. The NAD decision in favor of the competitor was reversed by NARB in favor of our client, which was one of only two NARB reversals in the past 10 years.
Challenged a number of claims in an Internet service provider company’s advertisements. The NAD agreed that these claims were misleading, and the competitor agreed to comply with all aspects of the NAD decision, except for the NAD's recommendation that the company discontinue the broadband comparisons. The competitor appealed this part of the decision, and the NARB rejected their argument, adopting Kelley Drye & Warren's arguments instead and affirming the NAD's decision.
Defended a wireless communications service provider against a competitor challenge of truth and accuracy of coverage claims promoting its wireless service. The NAD determined that our client’s coverage claims were substantiated, with recommendation of a slight modification to pricing claim.
Provided substantiation for certain express and implied claims by a Fortune 500 athletic equipment and apparel manufacturer for sunglasses, as well as an implied comparative superiority claim, per the request of the NAD. It found that the product’s performance and endorsement claims were all supported.
Challenged truth and accuracy of claims made by a wireless communications service provider regarding the scope of coverage for their in network rate plan. The NAD recommended the company discontinue or modify its claims. In a separate action, demonstrated that our client’s claim that its service was available coast to coast was substantiated.
Defended an appliance manufacturer in an advertising challenge that developed as a result of two consumer inquiries submitted to the Better Business Bureau alleging that the company’s “steamer” did not really use steam to clean carpets. Ultimately, the NAD agreed that the use of the word “steamer” to describe an upright cleaning machine was not likely to mislead consumers, which permitted our client to continue using the term.
Successfully challenged truth and accuracy of advertisements for an Internet company’s dial-up service. The NAD recommended that the company discontinue or modify its claims. It disregarded the NAD's ruling, which led to our filing in U.S. District Court for the Northern District of Georgia.
Challenged ads implying that a quick service restaurant’s hamburgers contained substantially more meat than our client’s burgers. After the competitor voluntarily promised to discontinue its claims, the NAD closed the case.
Representation before the FTC and State AGs
Represented two Internet service providers during a four-year investigation before the FTC of its advertising and member services practices.
Represented a wireless communications company in an investigation and eventual litigation against Attorney General Jay Nixon.
Defended a cigarette manufacturer’s famous advertising campaign in administrative litigation that resulted in the FTC’s withdrawal of its complaint.
Memberships & Associations
American Bar Association, Section of Antitrust Law, International Task Force, member
American Bar Association, Section of Antitrust Law, Consumer Protection Committee, chair 2006-2008
Professional Activities
American Bar Association's Consumer Protection Law Developments treatise, editor-in-chief
American Bar Association, Section of Antitrust Law Spring Meeting, 2011, co-chair
American Bar Association, Section of Antitrust Law Consumer Protection Conference, 2007, 2009, chair
Honors & Awards
Named 2011 D.C. Advertising "Lawyer of the Year" by The Best Lawyers in America.
Selected as one of The Best Lawyers in America in the Advertising Law area, 2007-2012.
Ranked by Chambers USA as a leading practitioner in the Privacy & Data Security area, 2008-2011, and in the Advertising: Litigation area, 2010-2011.
Recognized as one of the leading lawyers in the Marketing and Advertising and Data Protection and Privacy areas in US Legal 500, 2009-2011.
Recognized as a leading attorney in First Amendment/Media/Advertising, Antitrust Litigation practice areas by Washington D.C. Super Lawyers, 2010-2011.
