With one of the top false advertising teams in the country, Norton Fulbright Rose helps their domestic and international clients promote and protect some of the world's top-selling consumer and pharmaceutical brands.
Breadth of litigation and consulting experience
Norton Rose Fulbright's False Advertising Team has brought and defended Lanham Act false advertising cases throughout the country — from New York and Washington, D.C. to San Francisco and Los Angeles; from Minneapolis and Milwaukee to San Antonio and New Orleans. We regularly represent companies in consumer class actions alleging false advertising and unfair competition under California's Business & Professions Code §§17200 and 17500 and the California Consumer Legal Remedies Act.
In recent years, the team has litigated some of the most important cases brought under the Lanham Act and its state law counterparts.
In addition to litigation, the firm's False Advertising lawyers have advised clients on advertising and marketing matters, including FTC investigations. We also represent advertisers in challenges before the National Advertising Division (NAD) of the Better Business Bureau and the National Advertising Review Board (NARB).
Litigation strategies and strengths
While most suits are resolved by settlement, the False Advertising Team prepares each false advertising case as if it will go to trial. We work closely with our clients to develop a strategy at the very beginning of the suit — a strategy that will help a judge and jury understand often complex scientific principles and marketing campaigns.
Once the False Advertising Group has established a strategy, we field a fully integrated trial team capable of putting our plan into action. Our strengths include:
Standing and jurisdiction. The False Advertising Team is intimately familiar with the often complex manufacturing, marketing and distribution hierarchies of the industries in which the firm's clients participate. We are therefore able to advise our clients early on whether standing issues present an impediment to a false advertising suit. Similarly, we often litigate the fundamental issue whether a suit should proceed in light of the potential primary or pre-emptive jurisdiction of federal agencies such as the FDA or FTC.
E-discovery and document management
False advertising cases are document intensive. That fact, coupled with the prevalence of electronic documents, can create significant challenges and expenses during discovery. Norton Rose Fulbright utilizes Ringtail software to store and manage virtually every document - paper and electronic - produced in a case. The system has the capability to store, organize and cross-reference enormous volumes of information to which the firm's lawyers, in-house counsel, and any co- or local counsel have 24-hour secure access. Moreover, the firm's unparalleled experience with electronic discovery and familiarity with our clients' industries minimize the burden on in-house counsel in gather responsive documents, and maximizes the responsive documents we obtain from the opposing party.
TROs and preliminary injunctions
As a practical matter, many false advertising cases are fully or substantially resolved at an early stage with the Court ruling on a request for interim injunctive relief. The depth of the False Advertising Team's knowledge of both false advertising law and injunctive relief requirements allows us to move immediately to pursue or defend such requests. The team's ability to marshal quickly experienced trial counsel, gather necessary evidence through discovery and present qualified experts in a compressed time frame gives us an important edge in these crucial early proceedings.
Consumer surveys and scientific testing
Norton Rose Fulbright's false advertising litigators have extensive experience in consumer survey design and interpretation. Likewise, with more than 100 lawyers with scientific backgrounds — including many with advanced degrees in chemistry, biology and engineering — we have unparalleled experience in scientific testing methodology and statistical analysis. This experience enables us to select and assist the most qualified scientific experts, including many who have literally “written the book” in their field.
Complex damages analysis
In addition to lost profits analysis, our False Advertising Group is experienced in prosecuting and defending claims to obtain:
- an accounting of defendants' profits,
- “additional” (treble) damages, and
- corrective advertising and/or corrective advertising costs (including the interplay between the FTC guidance on corrective advertising and the developing case law).
The False Advertising Group draws upon a nationally recognized antitrust service, enabling us to assist our companies in structuring settlements that minimize the risk of FTC scrutiny.
Norton Rose Fulbright's False Advertising Team believes our greatest asset is our courtroom experience. We draw upon a group of more than 400 intellectual property and general litigators that is consistently described as one of the top litigation services in the country. Our False Advertising Team has tried many false advertising cases to judges and juries across the country.