Advertising and Marketing Class Action Defense

• Venable recently secured dismissals, with prejudice, for its clients – manufacturers and retailers of dietary supplements, and certain of their officers and executives – in a putative class action filed in the Central District of California. Challenging the labeling of various testosterone-boosting nutritional supplements as unsupported by reliable scientific evidence, Plaintiffs alleged, among other claims, violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and California and New York consumer protection and false advertising statutes, and sought substantial class-wide monetary damages, punitive damages, and injunctive relief. In its motion to dismiss the individual defendants, Venable principally argued that the California federal court lacked personal jurisdiction over the officers and executives; in the motion to dismiss the corporate defendants argued that Plaintiffs had failed to state any viable claim. The Court agreed, holding that it lacked both general and specific jurisdiction over the individuals, and that Plaintiffs had failed to state a claim against the corporate defendants because, among other things, the RICO claim lacked predicate fraudulent acts, and the purported expert report upon which Plaintiffs relied actually refuted the very claims asserted in the complaint. The Court thus granted both motions to dismiss without allowing Plaintiffs to attempt to replead their claims
• Venable represents multiple defendants who allegedly participated in a marketing campaign to promote the movie Last Ounce of Courage via unlawful pre-recorded telephone calls to plaintiffs' residential telephone line, in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227. Plaintiffs sought to represent a class of consumers who received unsolicited, pre-recorded telephone calls promoting the movie. However, discovery proved that the only message plaintiffs received on their answering machine did not contain a commercial advertisement, and plaintiffs never heard anything about the movie. The court granted the motions to dismiss filed by Huckabee, Leininger, Mission City, and Courage 2012 and dismissed the complaint. The court found that plaintiffs lacked Article III standing to pursue the action because they never heard any commercial advertisement, and further held that plaintiffs were inadequate class representatives because they were subject to a unique defense
• Venable is defending a major producer of poultry products in putative consumer class action lawsuits pending in the District of New Jersey and a more recently filed identical case in the Middle District of Florida. Both lawsuits are being supported by the Humane Society of the United States, an animal rights organization of which the plaintiffs are members. The suits principally claim that the "Humanely Raised" labels on our clients' chicken products are false and deceptive. Venable succeeded in dismissing claims in the New Jersey action concerning our client's "Raised Cage Free" labels. The court in the New Jersey action has granted Venable's motion to bifurcate discovery, so that merits discovery will not occur unless and until a class is certified – a decision which may save our client hundreds of thousands of dollars in discovery costs
• In a case that garnered national media attention, Venable defended an ABA-accredited law school in a putative class action filed in New York State Supreme Court by three of the school's alumni. Plaintiffs alleged that the school published misleading statistical information regarding its graduates' employment rates and salaries, and claimed fraud, negligent misrepresentation, and violations of New York's consumer protection statute. As damages, plaintiffs sought disgorgement of all tuition paid by members of the putative class, which if aggregated, would exceed hundreds of millions of dollars. Plaintiffs also sought an injunction that would affect future publication of the school's graduate employment statistics. In October 2011, Venable filed a motion to dismiss all of the claims against the law school, which prompted plaintiffs to amend their complaint. In December 2011, Venable moved to dismiss the amended complaint. On March 21, 2012, our motion to dismiss the amended complaint was granted in full. Among other things, the Court held that the alleged misstatements were not sufficiently material to support a cause of action, and that plaintiffs had not sufficiently pleaded causation and injury. In December 2012, New York's Appellate Division, First Department, affirmed the decision
• Venable recently obtained final approval of a non-cash settlement in a class action suit brought against a major national footwear retailer. Plaintiffs claimed violations of the federal Telephone Consumer Protection Act and sought class-wide damages that in the aggregate exceeded $4 billion. Venable, as lead settlement counsel, negotiated a non-cash settlement in which class members would receive certificates that could be used to purchase up to $25 worth of items at our client's retail stores. The settlement provides for distribution of $5 million worth of certificates to class members and cy pres recipients, and an award of roughly $1.25 million for plaintiffs' attorneys fees and expenses. This case was a significant victory, as non-cash settlements are very difficult to obtain under the Class Action Fairness Act
• Venable recently defended a foreign consumer products company (and its corporate parent and its two founders) against 16 putative class actions that were filed around the country. The lawsuits challenged the accuracy of our client's marketing claims concerning the efficacy and ingredients of its weight-loss products. The complaints sought classwide damages which, in the aggregate, would exceed $200 million. Venable removed the state court actions to federal court, and successfully opposed efforts to remand them back to state court. Then, on Venable's motion to the Judicial Panel on Multidistrict Litigation, the 16 cases were consolidated and transferred to the District of Massachusetts. The effect of these procedural motions was to streamline the litigation and save our client substantial amounts in legal fees and expenses. Venable then moved to dismiss the complaints. These motions led to the dismissal of the corporate parent on personal jurisdiction grounds, and the elimination of several substantive claims against the remaining defendants. After some discovery, the parties conducted settlement negotiations that culminated in an extremely favorable settlement for our clients – including nationwide consumer releases covering all of our clients' weight-loss products, total settlement payments to class members of less than $50,000, and a payment for plaintiffs' attorney's fees and expenses that was less than 40% of the "lodestar" value of plaintiffs' attorneys' time. In late November 2011, the settlement received final approval from the Court
• In 2008, on behalf of the nation's largest nonprofit credit counseling company, Venable defeated class certification in an action alleging violation of a Georgia consumer protection statute. The District Court for the Northern District of Georgia held that the two named plaintiffs were inadequate to represent the putative class because they lacked basic knowledge about the claims and had effectively abandoned the case to their counsel. As an independent ground, the Court held that class treatment was inappropriate for plaintiffs' strict liability statutory claims, where statutory damages on a classwide basis would exceed $13 million, and where Venable demonstrated that our client had acted in good faith
• In 2008, Venable nipped in the bud a consumer class action filed against a national clothing retailer by a consumer in New York State courts, saving our client hundreds of thousands of dollars in litigation expenses and potential damages. The complaint alleged that the retailer had routinely failed to properly reimburse customers who returned items purchased using coupons, in violation of New York State unfair and deceptive trade practices laws. The suit also included common law breach of contract and fraud claims. After receiving Venable's motion to dismiss the complaint, plaintiff's counsel immediately commenced settlement negotiations. Although similar cases had settled for close to $1 million, Venable resolved the matter for a token payment

Attorneys who have held senior positions at federal agencies, including:

• Department of Justice
• Federal Trade Commission
• Securities and Exchange Commission
• Federal Deposit Insurance Corporation
• Department of Labor
• Office of the Comptroller of the Currency

• U.S. News – Best Lawyers
  • Best Law Firms, Mass Tort Litigation / Class Actions – Defendants (Tier 1), National, 2011 – 2020
  • Best Law Firms, Mass Tort Litigation / Class Actions – Defendants (Tier 1), Baltimore, 2011 – 2020, 2022 - 2023