Advertising and marketing: litigation

Ross Weisman

Ross Weisman is the head of the advertising, marketing and promotions group at Kirkland & Ellis. He counsels a variety of clients in virtually all aspects of advertising and promotions law, including: reviewing advertising and marketing copy; counseling advertisers with respect to substantiation for claims made in advertisements; drafting and negotiating advertising, public relations and media agreements; advising clients with respect to rights of publicity, false endorsement and unfair competition issues in advertisements; drafting various release forms for national advertisers, including, without limitation, releases to use names, photos, testimonials, property or intangible property in advertisements; and assisting clients with Federal Trade Commission and State Attorney General inquiries. He also has extensive experience defending and challenging advertising claims in federal court under 43(a) of the Lanham Act (and working with the experts who conduct the consumer perception surveys so critical to these cases), as well as before the National Advertising Division (NAD) and National Advertising Review Board (NARB) of the BBB National Programs, Inc.

Steven Zalesin

Steve Zalesin is a nationally recognized trial lawyer with extensive experience in intellectual property, false advertising and complex commercial matters. He has successfully tried cases and argued appeals in numerous courts throughout the United States. For more than 30 years, Mr. Zalesin has represented the nation’s leading manufacturers and service providers in a series of landmark cases that have shaped the law of false advertising, while helping to preserve and grow the markets for our clients’ products. In recent years he has successfully defended major beverage, pet food, health care and confectionary companies, defeating claims by key rivals. He currently represents several of the world’s largest consumer products companies in high-profile disputes over the labeling and advertising for their flagship products. Mr. Zalesin has substantial experience defending consumer class actions, and regularly represents biopharmaceutical and medical device innovators in patent, trademark and licensing disputes. Mr. Zalesin was recently recognized in the 2021 Chambers USA Guide, and is described by references as “terrific - highly strategic and remarkably efficient, bringing the value of years of experience and a myriad of professional contacts to bear on each matter in a straightforward, soft-spoken way. That ensures we get to great outcomes in a very efficient way.” “He is extremely smart and knows the law backwards and forwards.” “He is terrific - a go-to lawyer in the industry and a force to be reckoned with in the Lanham Act space.” In 2016, Mr. Zalesin secured a federal jury verdict for the world’s leading beverage company in a closely-watched advertising dispute over juice labeling. Mr. Zalesin initially obtained summary judgment dismissing the claims against our client, and successfully defended that ruling before the Ninth Circuit. The U.S. Supreme Court subsequently vacated the Ninth Circuit’s decision, and remanded the case for trial. The Los Angeles jury rejected the plaintiff’s claim in full, returning a verdict in our client’s favor after a six-day trial and less than a day of deliberation. As a result of the favorable verdict, Mr. Zalesin was named “Litigator of the Week” by The American Lawyer (March 24, 2016). In 2020, he obtained dismissal of a class action complaint that targeted a leading online petitioning platform and its efforts to promote racial justice.

Jared Kagan

Jared Kagan is a counsel in the firm’s Intellectual Property group. His practice includes litigation and counselling on trademark, false advertising, copyright, and defamation matters, and has litigated cases in both state and federal court, before the Trademark Trial and Appeal Board and before the National Advertising Division of the Better Business Bureau.

Jennifer Yang

Jennifer Yang is a senior counsel in Proskauer's Litigation Department. She is a commercial litigator with a particular emphasis on false advertising and other intellectual property disputes, including Lanham Act and consumer class action false advertising litigation, advertising challenges before the National Advertising Division, as well as trademark, trade secret and copyright litigation. She has experience representing clients in a variety of industries, including medical device companies, consumer products companies, food and beverage companies, fashion retailers and art foundations. Jennifer is an author and editor of Proskauer’s advertising law blog, Proskauer on Advertising.

Boaz I. Cohen

Boaz I. Cohen works on litigation matters, including Lanham Act false advertising cases and proceedings before the National Advertising Division.

Jeffrey Warshafsky

Jeff Warshafsky is a partner in Proskauer's Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes. Jeff defends companies in connection with consumer class actions involving advertising and privacy issues. He has handled dozens of class actions around the country for multinational companies across diverse sectors including consumer product companies, retailers, and sports leagues. Jeff also counsels clients to avoid being targeted in such actions, helps them respond to demand letters from plaintiffs’ counsel, and negotiates resolutions. Additionally, Jeff represents clients in competitor versus competitor advertising disputes, including in Lanham Act cases and advertising self-regulation disputes before the National Advertising Division and the National Advertising Review Board. He also counsels companies on advertising substantiation issues, with an emphasis on complex scientific testing, such as clinical trials and sensory testing. Jeff regularly advises major sports leagues on complex business disputes. Jeff maintains a robust pro bono immigration practice, assisting clients with asylum and U-Visa applications and in connection with removal proceedings. In addition to his active practice, Jeff is an editor of and contributor to the Firm’s false advertising blog.

Robyn Bladow

Robyn Bladow is a litigation partner in the Los Angeles office who has handled numerous complex commercial disputes in United States and foreign courts as well as arbitration matters. She has represented and advised major corporate clients regarding contract disputes, unfair business practices and other business tort claims, consumer class actions, product liability claims, bankruptcy matters, intellectual property claims and employment disputes. Over the course of Robyn's career, she has increasingly focused her practice on defending clients against consumer and other class actions. She has been an integral member of multiple trial and arbitration teams.

David Mallen

Partner and Co-Chair, Advertising Disputes; Chair, Retail & Consumer Brands

Robin McCue

Robin McCue is a partner in Kirkland’s Chicago office who specializes in advertising and trademark law. Robin has extensive courtroom experience on such matters, and has considerable experience litigating advertising matters in the context of requests for expedited relief. In addition, Robin also has extensive experience at BBB National Programs National Advertising Division (“NAD”) and has been the attorney primarily responsible for both bringing and defending actions before the NAD. Robin regularly counsels clients in the areas of trademark and advertising and has primary responsibility for maintaining, protecting and enforcing clients' trademark portfolios at the PTO. Robin also has extensive experience in handling the damages side of intellectual property litigation. She has been the attorney primarily responsible for litigating multi-million dollar damages claims on advertising and trademark litigation matters, including working extensively with damages experts.

Jane Metcalf

Jane Metcalf is a Partner in the Firm’s Litigation department. Her practice focuses on complex commercial litigation, with an emphasis on class action defense, false advertising, intellectual property, and litigation involving FDA-regulated products. Ms. Metcalf has defeated numerous putative consumer fraud cases through dispositive motion practice, and in so doing has helped to stake out crucial limits on claims of this sort. For example, Ms. Metcalf won dismissal of a complaint alleging that the brand name of a world-famous soft drink was misleading, and then successfully argued the appeal of that dismissal in the Second Circuit – resulting in a crucial and frequently-cited opinion reinforcing the “reasonable consumer” standard applicable to consumer-fraud claims. In the Superior Court of the District of Columbia – an emerging hotbed of consumer litigation – Ms. Metcalf and her colleagues have defended two cases brought by nonprofit organizations purportedly on consumers’ behalf, and have won complete dismissal of both cases at the pleading stage. The most recent such case involved claims of purported corporate “greenwashing,” and the court’s dismissal articulated crucial limits on claims of this nature. Given Ms. Metcalf’s track record, clients entrust her with consumer-fraud claims of all types, across industries and jurisdictions. She is currently serving as lead counsel to a national drugstore chain in a Northern District of Illinois case claiming fraudulent marketing of prepaid gift cards, and she is also lead counsel to a preeminent financial technology company in a Central District of California case with similar allegations. Ms. Metcalf has also found swift and creative paths to victory in consumer-fraud cases that move beyond the pleading stage. She represented a leading confectionery company in an N.D. Cal. case attacking the labeling claim “No Artificial Flavors” on a product that contained malic acid. While a rash of virtually identical class actions led to high-priced class settlements, Ms. Metcalf elicited admissions at the named plaintiffs’ depositions that they had never been injured by the purported misrepresentation, and won summary judgment on that basis. She and her colleagues similarly defeated a “slack fill” case in Missouri federal court by eliciting admissions of the named plaintiff’s lack of injury. And in a multi-district litigation in the Northern District of California involving the labeling of her client’s flagship product, she and her colleagues appealed the district court’s certification of an injunction-only class on the grounds that the plaintiffs lacked standing to pursue injunctive relief. The Ninth Circuit agreed, in a ruling that distinguished several of its own recent decisions on consumer standing, and put an end to the multidistrict litigation. In addition to her class action defense work, Ms. Metcalf also regularly represents clients in Lanham Act disputes with competitors. She represented a leading household products company in a Northern District of California suit against its primary competitor, whose advertising drew “apples-to-oranges” comparisons between non-analogous products to falsely communicate that its own products outperformed the competition. The court denied the competitor’s motion to dismiss, in a detailed ruling that accepted the “apples-to-oranges” allegations of falsity, and the case was resolved shortly thereafter. Ms. Metcalf has also successfully defended a telecommunications provider against a competitor’s claim that it misrepresented its WiFi speed; a confectionery company against a rival company’s claims of trademark abandonment and trade dress infringement; and a cosmetics manufacturer against claims that it engaged in “unfair competition” by purportedly to get proper regulatory approvals for an eyelash-enhancing product. She also frequently represents clients in negotiating pre-suit resolution of advertising disputes with their competitors. Ms. Metcalf also maintains a diverse commercial litigation practice beyond the false advertising realm. She is currently representing a leading financial technology company in a False Claims Act case seeking to expand the reach of Delaware escheat law, and has also successfully represented clients in employment, fraud, and contract matters. She has served as lead trial counsel for a consumer products company in an arbitration involving claims for breach of contract, and defended a leading financial services firm in an arbitration involving claims of defamation by a former employee. Ms. Metcalf has been named to Benchmark Litigation’s “40 & Under Hot List,” recognizing practitioners who “are among the top young talent in their respective communities, for each of the past four years. Ms. Metcalf was also named to Ad Age’s elite ‘40 Under 40’ list, which recognizes influential people under 40 in the advertising, marketing, and media industries.

Randi Singer

Partner

Baldassare Vinti

Baldassare (“Baldo”) Vinti chairs Proskauer’s Intellectual Property Litigation Group. Baldo’s practice focuses on litigating patent, false advertising, trade secret, life sciences, trademark and contractual matters in federal and state courts and before the International Trade Commission. He is a seasoned trial attorney responsible for all aspects of litigation, including Markman hearings, appeals before the Federal Circuit, case preparation and strategy, depositions, motion practice, and settlement negotiations. He has represented clients in high-stakes matters involving a broad range of technologies, including medical devices, diagnostics, immunoassays, prosthetics, pharmaceuticals, dental implants, electronic medical records systems, encryption technology, wound dressings, digital video compression, electronic book delivery and security systems, mobile media technologies, navigation and location-based services, bandwidth management, bar code scanning, lasers , and other technologies. Baldo has represented numerous major corporations, including Arkema S.A., British Telecommunications PLC, Church & Dwight Co., Inc., Henry Schein, Inc., Maidenform Brands Inc., Mitsubishi Electric Corp., Ossur North America Inc., Panasonic Corp., Sony Corp., Welch Foods, Inc., and Zenith Electronics LLC. In addition, Baldo regularly handles transactional work, including intellectual property due diligence, licensing, intellectual property structural transactions, patentability studies, infringement/non-infringement opinions, and client counseling in intellectual property matters.   Baldo is an author and frequent commentator on patent issues pertaining to medical devices and a host of other intellectual property topics, and has been quoted in the National Law Journal, Bloomberg BNA, Law360, Westlaw Journal and Inside Counsel magazine. He is also a regular contributor of articles published in Medical Product Outsourcing magazine that deal with the medical device industry. Baldo served as a judicial intern for Hon. John E. Sprizzo of the United States District Court for the Southern District of New York and for Hon. Charles A. LaTorella of the New York Supreme Court.