Kelley Drye & Warren LLP

Advertising Litigation

Overview
Experience
People
Honors

We’re not litigators who’ve handled a few advertising cases. We’re nationally ranked and highly respected courtroom-tested litigation attorneys with deep and ready knowledge of advertising law, advocating for clients in advertising disputes across all spectrums, including government agencies investigations, competitive advertising claims in Lanham Act suits or challenges before the NAD, and defending clients against claims by consumers or competitors in state or federal court.

Our Advertising and Marketing attorneys have a long and successful record of advocating for our clients in state and federal courts across the country, before the National Advertising Division (NAD), the Federal Trade Commission (FTC), the offices of state Attorneys General, and the broadcast networks.

Government Investigations and Enforcement

Kelley Drye attorneys guide companies through the complex and daunting process of defending against regulatory investigations, enforcement actions and litigation brought by the FTC and state attorneys general for false or deceptive advertising and illegal sales or marketing practices, with the goal of achieving the best possible outcome for the client, whether that’s closure of an inquiry, a favorable negotiated settlement or successful litigation of an enforcement action. Members of our team have a unique regulatory perspective developed from years of serving with the FTC’s Bureau of Consumer Protection, including as bureau director, assistant director and attorney advisor, and strong relationships we’ve built working with attorneys at every level of the FTC and in the offices of state attorneys general. We have an unparalleled record of success negotiating with state and federal regulators to close investigations amicably, including dozens of cases over the last decade in which we’ve convinced FTC staff not to recommend enforcement action to the Commission. We’ve used the same skills and similar relationships when working on numerous investigations by state attorneys general and negotiated assurances of voluntary compliance in both single- and multi-state matters.

Lanham Act False Advertising Litigation

Our advertising litigation attorneys both initiate and defend against false or comparative advertising suits under the Lanham Act, the federal law that prohibits false or misleading claims in national advertising. The Kelley Drye team consists of attorneys who are both respected trial litigators and authorities on advertising law. They know every aspect of federal litigation unique to Lanham Act false advertising claims—doctrines of substantiation and disproof, how to allege and defend counterclaims and unclean-hands defenses, the role of establishment claims, the handling of friendly and enemy consumer survey witnesses for implied claims, the science for attacking or defending technical and medical advertising claims, and the intricacies of Lanham Act damages issues, to name a few. We provide clients competing in a wide range of industries with strategic insights and innovative approaches to successfully litigate and resolve competitor suits, to protect both their national advertising and their competitive advantage in the marketplace.

National Advertising Division and Television Network Challenges

We help clients take advantage of the advertising self-regulatory resolution process with the National Advertising Division of the Better Business Bureau to resolve competitive advertising disputes with more speed and efficiency than traditional litigation provides. Our team, which includes the former assistant director of the NAD, represents global consumer brands on both sides of numerous challenges before the NAD every year, and before the National Advertising Review Board in appeals of NAD decisions. We initiate and argue challenges on behalf of our clients to compel their competitors to modify or discontinue challenged advertisements. When our clients’ advertising is challenged, we assist them in demonstrating that their advertising claims are properly substantiated. We also represent advertisers as both complainants and respondents in advertising standards challenges with the major broadcast networks.

Consumer Class Action Defense of Unfair and Deceptive Trade Practice Allegations

We defend companies across a range of industries in state and federal consumer class actions involving advertising and labeling claims, deceptive trade practices, promotional “sale” pricing practices, telemarketing and Telephone Consumer Protection Act (TCPA), call monitoring practices, rebate policies, e-mail marketing campaigns and a range of other issues. Our trial litigators have an outstanding record of success securing dismissal of class claims on dispositive motions before discovery, defeating class certification and dispatching the claims of class representatives in some of the most plaintiff-friendly jurisdictions in the country, including courts in California, Illinois, New York, New Jersey and Texas.

Government Investigations and Enforcement

Closings

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 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.
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. The FTC staff closed the investigation.
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 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.
Represented a national retailer in an investigation by the U.S. Federal Trade Commission regarding compliance with the Fur Products Labeling Act. Case closed by the staff without formal action.
Represented a domestic shoe and boot manufacturer in an investigation by the U.S. Federal Trade Commission regarding compliance with the Made in the USA standard. Case closed by the staff without formal action.
Represented an insulation manufacturer in an NAD referral. Case closed by the staff without formal action.
Represented the maker of educational products for children in an FTC investigation regarding educational and developmental claims of a video product. The FTC staff closed the investigation.
Represented a telecommunications company in an FTC investigation concerning claims of unlimited web plan usage. The FTC staff closed the investigation.
Represented Fortune 50 computer and technology company and its financial services arm in an FTC investigation into the company’s financing promotions. The case was closed without action.
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. Case closed by the staff without formal action.
Represented a leading children’s specialty retailer in an FTC investigation of the company’s in-store and online privacy practices. Successful in convincing the FTC to close the investigation without pursuing law enforcement or remedial action.
Represented a major online retailer in an FTC investigation of Mail Order Rule violations, resulting in closing of investigation.

Settlements

Represented a major retailer in a 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 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.
Settled allegations brought by the Office of the Attorney General of New Jersey regarding unfair and deceptive practices related to prepaid telephone companies. Settled a similar case with the state of Florida.
Represented Fortune 50 computer and technology company and its financial services arm in obtaining settlement with attorneys general of 49 states, resolving allegations related to clients’ financing promotions, service contract and warranty offers, and rebate fulfillment. Case settled by payment of $4,075,000 for consumer redress, costs, penalties and disgorgement (averaging less than $85,000 per state) and implementation of injunctive relief.
On behalf of a large Internet company, settled allegations regarding violations of state Uniform and Deceptive Trade Practices Act (UDTAP) claims related to cancellation, reactivation, telephone billing and disclosure of terms of service with 48 state Attorneys General, with the Texas Attorney General’s office acting as the lead for the multi-state group throughout the investigation and settlement. Also settled similar allegations with the Attorneys General of Florida and New York.
Represented leading academic research company in separate privacy investigations by the FTC and 42 state Attorneys General, and negotiated FTC consent order and state Assurance of Voluntary Compliance.
Represented major telecommunications company in an FTC investigation of Fair Credit Reporting Act and Equal Credit Opportunity Act violations, resulting in negotiation of favorable settlement.
Represented a provider of financial services in an FTC challenge to its credit card marketing practices. The FTC also alleged that a subsidiary debt collection company engaged in deceptive conduct in marketing credit cards as part of its debt collection activities and violated the FDCPA.
Represented numerous companies seeking FTC support or guidance on consumer protection regulatory issues, legislation or enforcement policy.

Litigation

Represented a Fortune 100 telecommunications company in a lawsuit brought by the Minnesota Attorney General in Minnesota state court asserting claims under Minnesota’s consumer fraud act and deceptive trade practices act.
Represented a national marketer of satellite television services in litigation filed by the Department of Justice on behalf of the FTC 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.
Defended an Internet marketer in litigation filed by the FTC seeking civil penalties and injunctive relief regarding continuity programs.
Represented a Fortune 50 computer and technology company in litigation initiated by the Attorney General of the State of New York (Andrew Cuomo) alleging that the company violated Sections 349 and 350 of NY’s General Business Law and Section 63(12) of NY’s Executive Law in connection with the company’s financing promotions, service contract and warranty offers, and rebate fulfillment. Negotiated a settlement providing for injunctive relief and restitution on terms that were previously agreed to with the remaining 49 state Attorneys General.
Defended a manufacturer of pesticides in the first effort by the FTC and eight states to obtain a preliminary injunction in a substantiation case.
Represented a large telecommunications company in investigation and eventual litigation against AG Nixon.
Represented a sub-prime lender in litigation filed by the FTC, six state Attorneys General, AARP and related consumer class actions.
Represented a national marketer of nutritional supplements in an investigation by the Department of Justice alleging violations of a prior FTC order.
Represented a national marketer of discount buying clubs in litigation brought by the FTC and 47 state Attorneys General.
Defended a cigarette manufacturer’s famous advertising campaign in administrative litigation that resulted in the FTC’s withdrawal of its complaint.

Lanham Act False Advertising Litigation

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 an unfair competition 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.
Prosecuted claims in the Eastern District of New York for Lanham Act violations and unfair competition arising out of defendant's marketing of a toy product improperly based upon client's Laser ChallengeTM system. A temporary restraining order (TRO) was granted after an evidentiary hearing and the case was subsequently favorably settled.
Defended a toy manufacturer in a trade dress and copyright infringement action. Case was dismissed by the plaintiff following early discovery and motion practice.
Represented the producer of rums and spirits in a protracted dispute involving courts in three circuits, two federal agencies, and the World Trade Organization, involving the establishment of the company's rights to a trademark in the United States.
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.
Challenged comparative superiority claims made by an appliance manufacturer for its steam vacuum products.
Defended a distributor of motor scooters from claims of reverse passing off under the Lanham Act. Case was dismissed with prejudice after denial of plaintiff’s preliminary injunction motion.
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 competitor wireless communications company in connection with new product launch.
Defended a toy maker in an 18-day bench trial in the Eastern District of New York in which an inventor claimed violations of the Lanham Act. The Court ruled in our client’s favor.
Obtained summary judgment dismissal of Lanham Act and state law claims arising out of alleged misappropriation of plaintiff’s concept for a toy product.

National Advertising Division and Television Network Challenges

Obtained full dismissal with prejudice of consumer class action claims alleging deceptive pricing by major national retailer. In 2017, the First Circuit affirmed the dismissal of the suit.
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.
Challenged two advertising claims made by a dating website, which the NAD recommended they discontinue due to lack of substantiation.
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.
On behalf of a Fortune 500 athletic equipment and apparel manufacturer, challenged a competitor regarding express and implied superiority claims about its ice hockey helmets. The NAD recommended that the competitor discontinue its comparative performance, endorsement and fatigue claims.
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’s arguments instead and affirming the NAD’s decision.
On behalf of a Fortune 100 industrial conglomerate, challenged product packaging claims made by a competitor’s antifreeze product. The NAD recommended that the competitor modify its packaging to substantiate the truth and accuracy of its claims.
Challenged the truth and accuracy of a dietary supplement manufacturer’s comparative pricing claims related to a vitamin supplement. The NAD recommended that the competitor discontinue these claims and modify pricing structure to comply with FTC regulations.
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 one of the largest enterprise software companies in a challenge from a competitor for claims made in a database software ad campaign. The NAD determined that our client’s price comparison claims were substantiated.
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.

Consumer Class Action Defense of Unfair and Deceptive Trade Practice Allegations

Obtained full dismissal with prejudice of consumer class action claims alleging deceptive pricing by major national retailer. In 2017, the First Circuit affirmed the dismissal of the suit.
Represented a leading video-game developer in a consumer class action involving alleged claims of violation of California’s false advertising and unfair competition laws in connection with the release of one of the most hotly anticipated video game releases in history. Obtained dismissal of the suit at the pleading stage.
Represented Hydroxatone, the maker of cosmetic consumer products in a class action lawsuit. The suit claimed that Hydroxatone’s marketing was misleading and asserted claims of unjust enrichment, breach of contract and violation of the New Jersey Consumer Fraud Act. Negotiated a favorable settlement which was upheld during a fairness hearing over a vehement challenge by an objector.
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 Section 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. Settled at the pleading stage.
On behalf of a leading online brokerage company, obtained dismissal at the pleading stage of a class action on a Rule 12 motion 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.
Worked to secure insurance coverage for a client in connection with a class action brought against the studios and talent agencies by Hollywood writers in an age discrimination suit.
Represented an organization that provides recreational access to elephants in a false advertising case and secured the dismissal of a false advertising claim on a 12(b)(6) motion.
Defended several entertainment lawsuits that included unfair competition and false advertising claims, in connection with the failure to credit joint copyright holders or trademark owners with regard to entertainment works.
Defending a national bank against Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) claims related to commercial debt cancellation services.
Represented a sporting goods retailer in the Western District of Kentucky in two putative class actions alleging a “bait and switch” advertising campaign.
Defended a marketing group in a putative class action challenging the cancellation fulfillment policies and practices.
Obtained summary judgment for defendant, a call center and debt collection company, in putative class action challenging ordinary course of business call monitoring practices under the Fair Debt Collection Practices Act (FDCPA) and California privacy statutes.
Defeated motion for a preliminary injunction in a purported class action challenging a dietary supplement maker’s advertising claims for one of its products. 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.”
Obtained dismissal of a putative class action challenging coupon redemption policies for a children’s apparel retailer.
Obtained dismissal of a putative class action suit alleging violations of the Fair Credit Reporting Act (FCRA) in connection with prescreened marketing offers for a wireless communications company.
Successfully defended a mail order retailer against a consumer class action complaint that attacked its e-mail marketing campaign. Importantly, both the trial and appellate court rejected the plaintiff’s claim that he was damaged by mere receipt of the unsolicited e-mail advertisement on account of the time that he wasted to open and read it online and on account of any potential increase in Internet service charges by his Internet service provider as a result of the volume of unsolicited e-mail advertisements.
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.

Overview

Government Investigations and Enforcement

Lanham Act False Advertising Litigation

National Advertising Division and Television Network Challenges

Consumer Class Action Defense of Unfair and Deceptive Trade Practice Allegations

Experience

Government Investigations and Enforcement

Closings

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 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.
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. The FTC staff closed the investigation.
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 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.
Represented a national retailer in an investigation by the U.S. Federal Trade Commission regarding compliance with the Fur Products Labeling Act. Case closed by the staff without formal action.
Represented a domestic shoe and boot manufacturer in an investigation by the U.S. Federal Trade Commission regarding compliance with the Made in the USA standard. Case closed by the staff without formal action.
Represented an insulation manufacturer in an NAD referral. Case closed by the staff without formal action.
Represented the maker of educational products for children in an FTC investigation regarding educational and developmental claims of a video product. The FTC staff closed the investigation.
Represented a telecommunications company in an FTC investigation concerning claims of unlimited web plan usage. The FTC staff closed the investigation.
Represented Fortune 50 computer and technology company and its financial services arm in an FTC investigation into the company’s financing promotions. The case was closed without action.
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. Case closed by the staff without formal action.
Represented a leading children’s specialty retailer in an FTC investigation of the company’s in-store and online privacy practices. Successful in convincing the FTC to close the investigation without pursuing law enforcement or remedial action.
Represented a major online retailer in an FTC investigation of Mail Order Rule violations, resulting in closing of investigation.

Settlements

Represented a major retailer in a 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 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.
Settled allegations brought by the Office of the Attorney General of New Jersey regarding unfair and deceptive practices related to prepaid telephone companies. Settled a similar case with the state of Florida.
Represented Fortune 50 computer and technology company and its financial services arm in obtaining settlement with attorneys general of 49 states, resolving allegations related to clients’ financing promotions, service contract and warranty offers, and rebate fulfillment. Case settled by payment of $4,075,000 for consumer redress, costs, penalties and disgorgement (averaging less than $85,000 per state) and implementation of injunctive relief.
On behalf of a large Internet company, settled allegations regarding violations of state Uniform and Deceptive Trade Practices Act (UDTAP) claims related to cancellation, reactivation, telephone billing and disclosure of terms of service with 48 state Attorneys General, with the Texas Attorney General’s office acting as the lead for the multi-state group throughout the investigation and settlement. Also settled similar allegations with the Attorneys General of Florida and New York.
Represented leading academic research company in separate privacy investigations by the FTC and 42 state Attorneys General, and negotiated FTC consent order and state Assurance of Voluntary Compliance.
Represented major telecommunications company in an FTC investigation of Fair Credit Reporting Act and Equal Credit Opportunity Act violations, resulting in negotiation of favorable settlement.
Represented a provider of financial services in an FTC challenge to its credit card marketing practices. The FTC also alleged that a subsidiary debt collection company engaged in deceptive conduct in marketing credit cards as part of its debt collection activities and violated the FDCPA.
Represented numerous companies seeking FTC support or guidance on consumer protection regulatory issues, legislation or enforcement policy.

Litigation

Represented a Fortune 100 telecommunications company in a lawsuit brought by the Minnesota Attorney General in Minnesota state court asserting claims under Minnesota’s consumer fraud act and deceptive trade practices act.
Represented a national marketer of satellite television services in litigation filed by the Department of Justice on behalf of the FTC 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.
Defended an Internet marketer in litigation filed by the FTC seeking civil penalties and injunctive relief regarding continuity programs.
Represented a Fortune 50 computer and technology company in litigation initiated by the Attorney General of the State of New York (Andrew Cuomo) alleging that the company violated Sections 349 and 350 of NY’s General Business Law and Section 63(12) of NY’s Executive Law in connection with the company’s financing promotions, service contract and warranty offers, and rebate fulfillment. Negotiated a settlement providing for injunctive relief and restitution on terms that were previously agreed to with the remaining 49 state Attorneys General.
Defended a manufacturer of pesticides in the first effort by the FTC and eight states to obtain a preliminary injunction in a substantiation case.
Represented a large telecommunications company in investigation and eventual litigation against AG Nixon.
Represented a sub-prime lender in litigation filed by the FTC, six state Attorneys General, AARP and related consumer class actions.
Represented a national marketer of nutritional supplements in an investigation by the Department of Justice alleging violations of a prior FTC order.
Represented a national marketer of discount buying clubs in litigation brought by the FTC and 47 state Attorneys General.
Defended a cigarette manufacturer’s famous advertising campaign in administrative litigation that resulted in the FTC’s withdrawal of its complaint.

Lanham Act False Advertising Litigation

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 an unfair competition 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.
Prosecuted claims in the Eastern District of New York for Lanham Act violations and unfair competition arising out of defendant's marketing of a toy product improperly based upon client's Laser ChallengeTM system. A temporary restraining order (TRO) was granted after an evidentiary hearing and the case was subsequently favorably settled.
Defended a toy manufacturer in a trade dress and copyright infringement action. Case was dismissed by the plaintiff following early discovery and motion practice.
Represented the producer of rums and spirits in a protracted dispute involving courts in three circuits, two federal agencies, and the World Trade Organization, involving the establishment of the company's rights to a trademark in the United States.
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.
Challenged comparative superiority claims made by an appliance manufacturer for its steam vacuum products.
Defended a distributor of motor scooters from claims of reverse passing off under the Lanham Act. Case was dismissed with prejudice after denial of plaintiff’s preliminary injunction motion.
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 competitor wireless communications company in connection with new product launch.
Defended a toy maker in an 18-day bench trial in the Eastern District of New York in which an inventor claimed violations of the Lanham Act. The Court ruled in our client’s favor.
Obtained summary judgment dismissal of Lanham Act and state law claims arising out of alleged misappropriation of plaintiff’s concept for a toy product.

National Advertising Division and Television Network Challenges

Obtained full dismissal with prejudice of consumer class action claims alleging deceptive pricing by major national retailer. In 2017, the First Circuit affirmed the dismissal of the suit.
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.
Challenged two advertising claims made by a dating website, which the NAD recommended they discontinue due to lack of substantiation.
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.
On behalf of a Fortune 500 athletic equipment and apparel manufacturer, challenged a competitor regarding express and implied superiority claims about its ice hockey helmets. The NAD recommended that the competitor discontinue its comparative performance, endorsement and fatigue claims.
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’s arguments instead and affirming the NAD’s decision.
On behalf of a Fortune 100 industrial conglomerate, challenged product packaging claims made by a competitor’s antifreeze product. The NAD recommended that the competitor modify its packaging to substantiate the truth and accuracy of its claims.
Challenged the truth and accuracy of a dietary supplement manufacturer’s comparative pricing claims related to a vitamin supplement. The NAD recommended that the competitor discontinue these claims and modify pricing structure to comply with FTC regulations.
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 one of the largest enterprise software companies in a challenge from a competitor for claims made in a database software ad campaign. The NAD determined that our client’s price comparison claims were substantiated.
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.

Consumer Class Action Defense of Unfair and Deceptive Trade Practice Allegations

Obtained full dismissal with prejudice of consumer class action claims alleging deceptive pricing by major national retailer. In 2017, the First Circuit affirmed the dismissal of the suit.
Represented a leading video-game developer in a consumer class action involving alleged claims of violation of California’s false advertising and unfair competition laws in connection with the release of one of the most hotly anticipated video game releases in history. Obtained dismissal of the suit at the pleading stage.
Represented Hydroxatone, the maker of cosmetic consumer products in a class action lawsuit. The suit claimed that Hydroxatone’s marketing was misleading and asserted claims of unjust enrichment, breach of contract and violation of the New Jersey Consumer Fraud Act. Negotiated a favorable settlement which was upheld during a fairness hearing over a vehement challenge by an objector.
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 Section 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. Settled at the pleading stage.
On behalf of a leading online brokerage company, obtained dismissal at the pleading stage of a class action on a Rule 12 motion 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.
Worked to secure insurance coverage for a client in connection with a class action brought against the studios and talent agencies by Hollywood writers in an age discrimination suit.
Represented an organization that provides recreational access to elephants in a false advertising case and secured the dismissal of a false advertising claim on a 12(b)(6) motion.
Defended several entertainment lawsuits that included unfair competition and false advertising claims, in connection with the failure to credit joint copyright holders or trademark owners with regard to entertainment works.
Defending a national bank against Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) claims related to commercial debt cancellation services.
Represented a sporting goods retailer in the Western District of Kentucky in two putative class actions alleging a “bait and switch” advertising campaign.
Defended a marketing group in a putative class action challenging the cancellation fulfillment policies and practices.
Obtained summary judgment for defendant, a call center and debt collection company, in putative class action challenging ordinary course of business call monitoring practices under the Fair Debt Collection Practices Act (FDCPA) and California privacy statutes.
Defeated motion for a preliminary injunction in a purported class action challenging a dietary supplement maker’s advertising claims for one of its products. 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.”
Obtained dismissal of a putative class action challenging coupon redemption policies for a children’s apparel retailer.
Obtained dismissal of a putative class action suit alleging violations of the Fair Credit Reporting Act (FCRA) in connection with prescreened marketing offers for a wireless communications company.
Successfully defended a mail order retailer against a consumer class action complaint that attacked its e-mail marketing campaign. Importantly, both the trial and appellate court rejected the plaintiff’s claim that he was damaged by mere receipt of the unsolicited e-mail advertisement on account of the time that he wasted to open and read it online and on account of any potential increase in Internet service charges by his Internet service provider as a result of the volume of unsolicited e-mail advertisements.
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.

People

Honors

MICHAEL C. LYNCH

Partner

Email (212) 808-5082(212) 808-5082

Michael Lynch is chair of the firm’s Litigation practice and a member of the firm’s Executive Committee. Michael has extensive trial experience, both from his days as a prosecutor...

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CHRISTIE GRYMES THOMPSON

Partner

Email (202) 342-8633(202) 342-8633

Christie Grymes Thompson chairs the firm’s Advertising and Marketing and Consumer Product Safety practice groups. Named the 2016 and 2019 Washington, D.C. advertising “Lawyer of t...

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JOSEPH A. BOYLE

Partner

Email (973) 503-5920(973) 503-5920

Joseph Boyle focuses his practice on class actions and commercial litigation. His experience includes various areas of consumer class action litigation and litigation involving telecommunicat...

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ANDREA L. CALVARUSO

Partner

Email (212) 808-7853(212) 808-7853

Andrea Calvaruso chairs the firm’s Trademark and Copyright practice group and is a member of the firm’s Executive Committee. She represents clients from a wide range of industries...

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GEOFFREY W. CASTELLO

Partner

Email (973) 503-5922(973) 503-5922

A formidable litigator, compelling advocate and dynamic negotiator, Jeff Castello has represented a number of large corporations in complex food, beverage and consumer product false advertising and...

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JONATHAN K. COOPERMAN

Partner

Email (212) 808-7534(212) 808-7534

Jon Cooperman is an experienced trial attorney. His practice focuses on all aspects of civil litigation, including commercial litigation and contract disputes; environmental law claims pertai...

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ALYSA Z. HUTNIK

Partner

Email (202) 342-8603(202) 342-8603

Alysa Hutnik chairs the firm’s Privacy and Information Security practice and delivers comprehensive expertise in all areas of privacy, data security and advertising law. Her experience ...

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LAURI A. MAZZUCHETTI

Partner

Email (973) 503-5910(973) 503-5910

Lauri Mazzuchetti’s practice focuses on commercial litigation and consumer-oriented class action defense, representing clients in FTC and state attorneys general investigations and other liti...

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JACLYN M. METZINGER

Partner

Email (212) 808-7843(212) 808-7843

Jaclyn Metzinger focuses her practice on commercial and complex civil litigation in both state and federal courts. Her experience includes consumer class actions, false advertising claims, an...

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LEWIS ROSE

Partner

Email (202) 342-8821(202) 342-8821

Lew Rose serves as managing partner of Kelley Drye, and is a member of the firm’s Executive Committee. Lew also served as managing partner of the Washington, D.C. office and past chair o...

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JOHN E. VILLAFRANCO

Partner

Email (202) 342-8423(202) 342-8423

A member of the firm’s Executive Committee, John Villafranco provides litigation and counseling services, with a focus on advertising law matters and consumer protection. John is highly respe...

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DAVID I. ZALMAN

Partner

Email (212) 808-7985(212) 808-7985

David Zalman’s practice involves commercial and complex civil litigation, including class action defense, contract disputes, unfair competition, false advertising, real estate disputes, corpo...

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JENNIFER FRIED

Special Counsel

Email (202) 719-6022(202) 719-6022

Jennifer Fried is special counsel in the firm’s Washington, D.C. office. Her practice focuses on advertising and consumer protection law. Jennifer, formerly the Assistant Director of the Nati...

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GLENN T. GRAHAM

Special Counsel

Email (973) 503-5917(973) 503-5917

Glenn Graham focuses on all aspects of civil litigation. His experience includes consumer class action defense, commercial litigation and contract disputes, and law enforcement investigations...

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JOEL A. HANKIN

Special Counsel

Email (212) 808-7928(212) 808-7928

Joel Hankin’s practice includes complex domestic and foreign commercial litigation and arbitration. Joel has experience in a number of substantive litigation disciplines, including secu...

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JENNIFER I. FISCHER

Senior Associate

Email (973) 503-5960(973) 503-5960

Jennifer Fischer is a senior associate in the Litigation and Labor and Employment practices. She focuses her practice on all aspects of commercial litigation, employment law, and consumer cla...

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JAMES B. SAYLOR

Senior Associate

Email (212) 808-5052(212) 808-5052

James Saylor is a senior associate in Kelley Drye’s litigation group. James has a diverse breadth of subject matter expertise, having consulted and managed complex litigations and arbit...

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DAVID M. REAP

Associate

Email (212) 808-7636(212) 808-7636

David Reap is a litigation associate who focuses on commercial litigation, consumer class action defense, and law enforcement investigations involving consumer protection. David was previously...

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August 15, 2019

The Best Lawyers in America© Names 48 Kelley Drye Lawyers to 2020 Edition

April 25, 2019

Chambers and Partners Recognizes 21 Kelley Drye Attorneys, 8 Practices, in 2019 Chambers USA Rankings

November 1, 2018

U.S. News & World Report and Best Lawyers® (Woodward/White, Inc.) Honor Kelley Drye with National Rankings in 2019 Report of Best Law Firms

August 15, 2018

May 3, 2018

Chambers USA Recognizes 24 Kelley Drye "Leading Lawyers" and 9 Practice Areas

January 29, 2018

Kelley Drye Named Law360 “Consumer Protection Practice Group of the Year”