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.
