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.