Kelley Drye’s Advertising and Marketing practice has a national reputation for excellence. No other firm can match our record in advertising litigation and National Advertising Division (NAD) proceedings, our substantive strength in the area of advertising, promotions marketing and privacy law, and our experience at the Federal Trade Commission (FTC), the offices of state Attorneys General, the NAD, and the broadcast networks. Kelley Drye has successful, longstanding relationships with clients in a broad range of industries, from communications and technology, to manufacturing and marketing. Our advertising attorneys practice exclusively in this area of law, which provides you with comprehensive legal support as well as greater efficiency for the breadth of your advertising-related legal matters. Whether you seek to substantiate your advertising claims, execute preventative marketing strategies, or challenge your competitor’s claims, Kelley Drye’s lawyers know where to begin and how to finish on top.
Our Advertising and Marketing practice is highly respected in the field, ranked by U.S. News/Best Lawyers in Tier 1 - National for Advertising Law. Chambers USA 2015 ranks Kelley Drye in the National Advertising Litigation and Transactional & Regulatory categories, recognizing the firm's prominent billing in the advertising sector with impressive coast-to-coast coverage. Chambers heard from one client, "They have a robust practice. They are one of the stellar firms in this space." In addition, US Legal 500 recognizes this practice, which they observe is “particularly well regarded for its regulatory prowess, with core strength in FTC matters and proceedings before NAD and NARB.” Our attorneys are frequently given individual accolades. For example, four years in a row Best Lawyers named a Kelley Drye attorney the Washington, D.C. Advertising “Lawyer of the Year.”
We serve an extensive client base, which includes wireless carriers, telecommunication companies, media companies, Internet service providers, consultants, major retailers and direct marketers, as well as manufacturers of computers, dietary supplements, fast food, engine oils, paint, home appliances, sporting goods and other consumer products.
This group has particular experience and capabilities in:
- Advertising and marketing counseling services that emphasize risk analysis and responsiveness. We regularly review advertising and promotional materials for legal compliance, including the review of television, radio, print, Internet, merchandising, financial offers and product packaging for truth in advertising, claim substantiation, the proper use of intellectual property rights, and compliance with state and federal consumer protection rules. Based on our findings, we work with clients to modify claims as necessary to mitigate risk and ensure their goals are accomplished in a manner that complies with applicable laws.
Consumer class action defense of unfair and deceptive trade practice allegations. From our home base in D.C. and litigation strongholds in New York and Los Angeles, this team actively defends consumer class action cases throughout the country. The firm has defeated class certification in a number of recent client cases and has negotiated favorable settlements in many others. We have defended clients against class actions involving cancellation fulfillment policies, pricing practices, call monitoring practices, promotional rebate policies, e-mail marketing campaigns, and a range of other issues.
Lanham Act false advertising litigation, on behalf of both plaintiffs and defendants. With one of the nation's largest and most effective advertising litigation practices, we have brought or defended a range of false or comparative advertising cases in recent years under Section 43(a) of the Lanham Act, which prohibits false or misleading claims in national advertising.
Investigations and litigation brought by the Federal Trade Commission and state Attorneys General. This team comprises several attorneys who have worked at various levels at the FTC's Bureau of Consumer Protection and has unparalleled experience representing businesses that are investigated by federal and state government agencies for false or deceptive advertising, or illegal sales or marketing practices. No matter the scope of the action, we guide clients through this process swiftly and negotiate favorable agreements with federal agencies, individual states and multi-state groups.
National Advertising Division (NAD) of the Council of Better Business Bureaus and television network challenges. We help clients take advantage of the NAD's resolution process to tackle advertising disputes with more speed and efficiency than traditional litigation typically offers. At the NAD and before the networks, we have been successful in both forcing competitors to modify or discontinue challenged advertisements and demonstrating that our clients' advertising claims are substantiated.
Counseling on privacy and information security compliance. We counsel clients on privacy and data security laws governing the collection, use and protection of personal information, and on managing risks and reducing exposure to investigations and litigation arising from how companies handle personal data.
Structuring and running promotions. Our team advises a range of clients and their affiliate brands as they run promotions, including sweepstakes, contests, charitable campaigns, gift cards and loyalty programs. We also draft and negotiate promotion, endorsement and sponsorship agreements. From the moment an idea for a promotion is conceived, we work closely with our clients to ensure that their goals are accomplished in a manner that complies with applicable laws and offers as much protection as possible.
Kelley Drye takes specific steps to understand the unique goals and challenges of our clients' businesses. For example, the firm's junior attorneys spend time in clients' offices, working directly with marketers and in-house attorneys. This experience enables these associates to develop a practical business context to match their substantive legal skills - a combination that delivers dividends to clients and that reinforces the practice group's business - and client-focused philosophy.
Current Leadership Positions
- Alysa Z. Hutnik, Council Member, ABA Antitrust Section
- William C. MacLeod, Vice Chair, ABA Antitrust Section
- Gonzalo E. Mon, Editorial Board Member, ABA Consumer Protection Law Developments – Update
- Sarah Roller, Member, Institute of Medicine Food Forum
- Lewis Rose, Editorial Board Member, Journal of Internet Law; Author, CCH’s Advertising Law Guide treatise
- Dana B. Rosenfeld, Vice Chair, Privacy and Information Security Committee, ABA Antitrust Section
- Christie Grymes Thompson, Vice Chair, Membership and Diversity Committee; ABA Antitrust Section
- John E. Villafranco, Chair, Advertising Disputes and Litigation Committee, ABA Antitrust Section
Former Leadership Positions
- August T. Horvath, Vice Chair, ABA Advisory Board on Section Reserves, 2014; Council Member, ABA Antitrust Section, 2013; Chair, ABA Antitrust Section, Consumer Protection Committee, 2009; Co-Editor-in-Chief, ABA Consumer Protection Law Developments; Editor-in-Chief, ABA Consumer Protection Manual
- Alysa Z. Hutnik, Co-Chair, ABA Antitrust Section, Committee Operations Committee. 2014; Chair, ABA Antitrust Section, Privacy & Information Security Committee; Editor-in-Chief, ABA The Secure Times newsletter; Editor-in-Chief, Data Security Handbook; Co-Chair, ABA Antitrust Section Consumer Protection Conference, 2011; Vice-Chair, ABA Antitrust Section, Privacy & Information Security Committee, 2006 – 2008
- William C. MacLeod, ABA Antitrust Section Program Officer, 2014; Section Delegate to the ABA House of Delegates, 2013; Director, FTC Bureau of Consumer Protection; Regional Director, FTC; Attorney Advisor, FTC; Chair, ABA Antitrust Section Spring Meeting, 2010; Consumer Protection Officer, ABA, 2011 – 2012
- Sarah Roller, At Large Member, Institute of Food Technology Food Laws and Regulations Section Executive Committee, 2008-2011; Food and Drug Law Institute Food and Drug Law Journal Editorial Advisory Board Member, 2002-2007, and Chair, 2006-2007
- Lewis Rose, Assistant Director, FTC Bureau of Consumer Protection; Attorney Advisor, FTC
- Dana B. Rosenfeld, Assistant Director, FTC Bureau of Consumer Protection; Attorney Advisor, FTC Chairman Robert Pitofsky; Associate Editor, ABA ANTITRUST magazine, 2014; Vice-Chair, ABA Antitrust Section, Private Advertising Litigation Committee, 2009 – 2012
- Christie Grymes Thompson, Member, ABA Antitrust Section, Nominating Committee, 2014; Chair, ABA Antitrust Section, Consumer Protection Committee, 2011 – 2013; Vice Chair, ABA Antitrust Section, Long Range Planning Committee, 2011 – 2012
- John E. Villafranco, Chair, Private Advertising Litigation Committee, 2014; Member, ABA Antitrust Section, Presidential Transition Report Task Force, 2013; Member, ABA Antitrust Section, International Task Force, 2012; Chair, ABA Antitrust Section, Consumer Protection Committee, 2006 – 2008; Co-Editor-in-Chief, ABA Consumer Protection Law Developments; Co-Chair, ABA Antitrust Section Spring Meeting, 2011; Chair, ABA Antitrust Section Consumer Protection Conference, 2007, 2009
Consumer Class Action Defense
- Represented a global food company in three class actions filed against the company, arising out of its advertising for a probiotic product. The first case was dismissed. In the second, a New Jersey court ruled in favor of our client, finding that prior substantiation does exist for the product’s health benefit claims. A Florida court denied the plaintiff’s motion to certify a class in the third suit.
- Successfully obtained dismissal of a class action lawsuit concerning alleged violations of the Telephone Consumer Protection Act (TCPA). The case centered on third party liability issues for this Fortune 100 producer of consumer products and aerospace systems.
- Convinced the California Court of Appeal, 1st Dist. to compel a putative class action, which accused a wireless carrier of misrepresenting cell phone rates to consumers, to be settled through arbitration, citing the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion.
- Successfully represented a cooperative association of 450 family-owned dairies, maker of the best selling brand of butter in the Western U.S., in a class action filed in the Los Angeles Superior Court, alleging that the labeling of certain of their dairy products were false and misleading in violation of the California Unfair Competition statutes, as well as the Consumer Legal Remedies Act. Judge dismissed the case with prejudice on federal preemption grounds.
- On behalf of a beverage manufacturer, obtained favorable resolution of claims brought under California Business and Professions Code § 17200 and § 17500 regarding the packaging and labeling of energy drinks. The plaintiff, on behalf of a class of all purchasers of our client's products, alleged that the labeling of our client’s beverages contained false and misleading information.
- On behalf of a leading online brokerage company, obtained dismissal of a class action in the Central District of California alleging claims for false advertising and unfair business practices in violation of California's Business & Professions Code § 17200 regarding the assessment of online broker fees. The dismissal of all claims was affirmed by the Ninth Circuit.
- Represented a major online floral retailer in state and federal courts in California against claims for false advertising and unfair business practices in violation of California's Business & Professions Code § 17200 regarding the imposition of delivery charges. The case was favorably resolved during the pendency of a class certification motion.
- Represented a major motion picture studio in a dispute with a company that makes "mockbuster" movies, alleging that the business practices were in violation of California's Business & Professions Code § 17200.
- Represented a sporting goods retailer in the Western District of Kentucky in two putative class actions alleging a "bait and switch" advertising campaign. Class certification was not granted, and the parties agreed to a stipulated dismissal with prejudice.
- Defeated motion for a preliminary injunction in a purported class action challenging a dietary supplement's advertising claims. Plaintiffs sought to enjoin the company's allegedly false advertising for the product throughout California, arguing that the advertising representations were false and deceptive, and violated the state's "baby FTC Act."
- Secured dismissal of virtually all claims arising from a tax service's allegedly improper disposal of customers' private information, including obtaining a ruling of first impression holding that commercial tax preparers are not subject to the privacy provisions (and potentially substantial statutory penalties) of the federal Tax Reform Act.
- Kelley Drye has led the defense of more than 30 class action cases brought against a leading wireless carrier. In several related matters, we successfully petitioned for multidistrict litigation over the objections of several noted plaintiff class action firms, transferring over twenty cases to the Western District of Missouri.
- Kelley Drye has 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.
FTC and State AG Investigations/Litigation
- Represented a major U.S. department store in an FTC investigation involving the alleged mislabeling of fur clothing as “faux fur.” We successfully demonstrated that the client relied in good faith on a third party’s representations and persuaded the staff to close the matter without formal action.
- Represented a cloud-based technology provider in an FTC investigation concerning the issue of third party liability. Investigation closed without enforcement action after staff presented a proposed complaint and order.
- Negotiated successfully with the FTC staff to close an investigation regarding concussion health and safety-related claims for one of the largest manufacturers of football helmets.
- Represented a Fortune 100 retailer in an FTC investigation into the company’s handling of customer information. After a robust defense of the client’s privacy practices, the FTC staff closed the investigation.
- Represented a mobile app developer in an FTC investigation concerning the company’s compliance with privacy and information security obligations. We negotiated successfully with the FTC and the matter was closed.
- Defended an international developer and publisher of mobile video games in a regulatory investigation involving in-app purchases.
- Represented a major discount retail company with respect to an inquiry from the New York City Department of Consumer Affairs into the company’s handling of a merchandising promotion. Following our explanation of the advertising practices leading up to and following the launch of the campaign, the NYC DCA abandoned the investigation.
- Represented a subsidiary of the world's largest food and nutrition company in the FTC's first case challenging advertising for probiotics. Successfully negotiated a settlement for the case, which alleged deceptive advertising claims about the health benefits of a children's nutrition drink.
- Represented a national pharmacy chain in a settlement with the FTC regarding advertisements for a line of cold-and-flu treatment dietary supplements. The FTC's allegations related to alleged unsubstantiated health claims involving cold and flu prevention and immune boosting.
- Represented the largest provider of pre-paid legal plans in the country in an FTC investigation regarding their advertising and privacy business practices. Kelley Drye convinced the Commission to reject the FTC staff's proposal to file a complaint, and the FTC closed the investigation - an extremely rare result.
- Represent a provider of direct broadcast satellite TV service in litigation initiated by the Department of Justice on behalf of the Federal Trade Commission and the states of North Carolina, Illinois, Ohio and California seeking civil penalties for violations of the FTC's Telemarketing Sales Rule by allegedly calling telephone numbers listed on the Do Not Call Registry. The case is pending in the United States District Court for the Central District of Illinois (Rock Island Division).
- Represent a company that provides marketing services to Internet-based commerce businesses in litigation filed by the U.S. Federal Trade Commission alleging insufficient disclosure of material terms and conditions made in connection with a negative option free trial offer. Litigation pending in the United States District Court for the Central District of California.
- Represented an auto chemical manufacturer in an investigation by the U.S. Federal Trade Commission regarding substantiation for performance claims made for the product. Case initiated by a referral from the National Advertising Division of the Council of Better Business Bureaus, Inc. Case closed by the staff without formal action.
- Represented a leading wireless carrier in an investigation by the U.S. Federal Trade Commission regarding pricing claims made by the carrier. Case closed by the Commission despite recommendation by the staff that the Commission file a lawsuit challenging the pricing claims.
- Represented a major retailer in settlement with the FTC regarding the Textile Act and references to bamboo fibers. Citing an infrequently-used provision of the FTC Act, the FTC relied on a synopsis of previous cases to seek civil penalties.
- Represented a Fortune 500 paint company in a settlement with the FTC regarding green marketing claims of zero volatile organic compounds (VOCs) in some of their paint products.
- Represented a drugstore retailer and its wholly owned subsidiary in relation to complex negotiations with FTC staff to close an investigation, ending a potential enforcement action. The inquiry focused on substantiation for express and implied claims that its plastic trash bags were degradable, recyclable, and made with recycled content.
- Obtained a closing letter for an FTC investigation into the environmental advertising claims of a construction materials company.
- Worked with a large food and beverage trade association to prepare comments concerning possible revisions to the FTC’s Guides for the Use of Environmental Marketing Claims (“the Green Guides”). The comments focused on claims relating to the following issues: renewable energy, carbon offsets, renewable energy certificates, carbon neutrality, carbon footprint, sustainability, life cycle assessments, seals, logos, third party certifications and source reduction claims.
- Represented a consumer products company in an NAD challenge involving green claims for cleaning products.
- On behalf of a Fortune 50 technology company, successfully challenged a competitor’s claim that they sell the “world’s greenest notebooks.”
- Represented a plastics manufacturer in a challenge before the NAD relating to bio-degradability and recyclability claims.
- Represented a leading jewelry retailer in a Lanham Act suit challenging a competitor’s claims for the performance of its diamonds. Negotiated a settlement prior to trial.
- On behalf of a maker of automotive products, successfully negotiated the settlement of a Lanham Act challenge regarding comparative advertising claims for an automotive product.
- Successfully defended a beverage producer in a Lanham Act false advertising case that went to trial in the Central District Court of California. On behalf of our client, we counter-alleged false advertising by its competitor, which we were prepared to litigate, but this became unnecessary when, after nine trial days, the jury completely exonerated our client of the false advertising of which it was accused.
- Assisted an advertiser in securing a $125 million settlement of its false advertising and antitrust claims against a competitor in the District of Minnesota. The case over in-store marketing promotions was settled after the first day of trial.
- Defended the maker of dietary supplements in a false advertising lawsuit brought in the U.S. Eastern District Court of New York. The jury unanimously found that our client's statement, used on wholesalers' and retailers' store brand packaging for joint care products, inviting consumers to compare the products to a competitor's products, is not false and misleading and does not violate Section 43 of the Lanham Act.
- Defended a toy manufacturer in a trade dress and copyright infringement action. Case was dismissed by the plaintiff following early discovery and motion practice.
- Defended the manufacturer of packaging machinery against patent infringement claims. A global settlement was negotiated after Markman briefing and argument.
- Served as litigation counsel in a closely-watched search engine advertising case. Case settled after successful oppositions to both the plaintiff's motion to dismiss Lanham Act counterclaims and a subsequent motion for summary judgment.
- Defended a leading apparel company in trade dress infringement claims arising from pocket stitching designs.
- Defended the manufacturer of carpet cleaners in false advertising case.
- Represented leading pet food manufacturer in a NAD challenge regarding tartar reduction and "clinically proven" claims for dental dog treats. The NAD ruled in favor of our client on all challenged claims.
- Represented a global electronics company in a successful challenge involving comparative advertising claims made by its primary rival with respect to 3D TVs.
- Successfully represented a Fortune 100 home improvement retailer in challenging two of its competitors before the NAD regarding deceptive sales and promotional practices. NAD ruled in favor of our client in both challenges.
- 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.
- Represented a major over-the-counter headache relief tablet manufacturer in an NAD challenge and an appeal before the National Advertising Review Board (NARB) of the Council of Better Business Bureaus regarding pain relief claims.
- Represented a leading paint and wall coverings company in an NAD challenge and NARB appeal relating to claims of odor reduction.
- 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.
- On behalf of an air conditioning system provider, challenged the truth and accuracy of a competitor's express and warranty disclosure claims for HVAC products and 10-year warranty. The NAD recommended that the competitor's advertisements be modified to clearly and conspicuously disclose the conditions of the warranty.
- Provided substantiation of performance and warranty claims for exterior paint coating, per the NAD's request. The NAD determined that a reasonable basis for substantiation of claims was provided by our client, a paint company.
- Defended a maker of dietary supplements in a challenge regarding substantiation of performance, exclusivity, establishment and expert endorsement claims made in advertising a sleep formula. The ERSP determined that our client had substantiated claims and recommended one minor modification.
- 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 Fortune 50 consumer products company, challenged the truth and accuracy of comparative advertising claims made by a competitor. The NAD determined that the competitor's comparative claims lacked substantiation.
- Defended the maker of dietary supplements in a challenge brought by a competitor regarding substantiation of establishment, performance and comparative claims. The ERSP determined that our client provided reasonable basis for performance claims.
- 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.
New Media Marketing
- Assisted various clients with contests involving consumer-generated content, including contests where consumers were invited to create commercials, develop software, and even design sneakers. We drafted rules for the promotions, helped protect our clients from problematic content, and secured rights to the winning submissions.
- Assisted various clients in designing sweepstakes that allow consumers to enter by sending text messages via their mobile phones. We helped these clients structure the promotions in such a way as to avoid the lawsuits that have recently plagued other companies that have offered text-to-win sweepstakes.
- Advised clients on the risks associated with allowing consumers to post content on the clients' sites and drafted terms of service designed to protect the clients from the potential liability associated with content posted by consumers.
- Advised clients on the risks associated with employee blogs and helped clients develop internal policies addressing blogging by employees in order to minimize legal exposure to the company.
- Counseled several clients, including a Fortune 500 athletic apparel company, a national wireless telecommunications carrier, and a children’s retailer on issues in product design and services that involve online/wireless gaming and social media components.
- Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.
Privacy and Information Security
- Provide consumer protection counseling to several major mobile application developers and marketers, including privacy-related counseling.
- Represented a diversified mass media company on children’s privacy issues and submitted comments on behalf of the client in response to the FTC’s proposed revisions to the Children’s Online Privacy Protection Rule.
- Represent a group of prominent doctors who own and run a teleradiology business in a dispute with a major university, alleging invasion of privacy, interference with a contract and interference with prospective business advantage. Additional allegations include misappropriation of trade secrets and unfair competition in violation of § 17200.
- Assisted a major retailer with a gap analysis for privacy compliance. This involved dividing the business units into discreet parts with similar privacy compliance issues. Our analysis then cataloged every applicable privacy law in the United States (federal and state) in the form of easy-to-follow questions for the business units to answer, which allowed the legal department to identify compliance gaps and most efficiently focus resources on those areas that needed it most.
- Represented a financial institution in an investigation by the FTC concerning an information security breach the business incurred, and whether the company's business practices complied with Section 5 of the FTC Act, the Gramm-Leach-Bliley Act (GLBA), the GLBA Safeguards Rule and the GLBA Privacy Rule. The case resolved with a settlement that included relatively narrow injunctive relief (compared to other similar FTC settlements), and no monetary damages or penalties.
- Counseled a Fortune 50 computer and technology company on global privacy and data security compliance, including assisting on compliance with the various U.S. state developments, enforcement trends and strategies for managing vendor relationships worldwide. Our work included drafting appropriate contractual language and developing and counseling on oversight and monitoring procedures for a company that maintains a very large and diverse set of vendors that raise varied data security compliance issues in the European Union and Asian countries in which they do business.
- Worked with an international retailer to review and certify its data practices under the Safe Harbor program to permit it to lawfully transfer its European Union employee and customer data to the United States.
- Assisted a major consumer electronics retailer in connection with implementing a behavioral advertising initiative.
- Regularly advise a Fortune 1000 clothing retailer on privacy and data security matters, including working closely with the company in designing a tailored privacy and data security compliance program that meets federal and state regulatory requirements.
- Provide comprehensive privacy and data security advice for a major online retailer. This includes advising on compliance with the Children's Online Privacy Protection Act, CAN-SPAM, and relevant FTC and state consumer protection, privacy, and data security laws.
- Counseled a Fortune 500 clothing manufacturer on enterprise-wide data security compliance. This included strategies for data protection compliance, legal policies, managing vendor relationships, negotiating privacy and data security terms in vendor contracts and exercising privacy and due diligence in the company's acquisition of new businesses, data assets and service providers.
- Counseled numerous clients - retailers, financial service entities, and telecommunications providers - on appropriate responses to a data breach event in accordance with legal obligations and business risks.
- Assisted a leading quick-service restaurant in structuring and advertising various instant win games offered in conjunction with the release of a major motion picture. As part of these projects, we assisted in drafting rules, reviewing ads, obtaining rights to movie content and negotiating agreements with various prize providers.
- Helped a game developer run an international promotion in which players competed against each other for cash prizes.
- Helped a food company structure an international contest with user-generated content.
- Assisted a leading travel company in running the largest Facebook promotion in history, including 13 trips and over $1 million in prizes. Drafted rules for the promotion, coordinated with counsel in the UK and Canada, and drafted agreements with prize providers.
- Advised a footwear retailer regarding their role in promotions for the (RED)TM Campaign, in which a portion of proceeds from the sale of certain products are donated to The Global Fund to Fight AIDS, tuberculosis, and malaria.
- Assisted a diversified consumer products company in a promotion to benefit The Susan G. Komen Breast Cancer Foundation.
- Managed national and international taste tests, preference tests and other consumer surveys. We provide legal counseling based on the results of these tests and surveys to help businesses determine whether they have adequate substantiation for advertising claims.