CLASS ACTION QUICK FACTS

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
 

Advertising and Marketing Class Action Defense



Class action lawsuits against advertisers and marketers are on the rise and they pose significant threats to their brands and their businesses. Successfully defending these cases requires mastery of the issues and complexities that are unique to class action litigation, as well as the procedural nuances in courts and jurisdictions around the country.

Venable is widely recognized as one of the nation’s most highly regarded advertising and marketing law practices. We defend clients against class action claims alleging violation of state and federal deceptive trade practices, false advertising, unfair competition and other consumer protection statutes. Our experience ranges from achieving precedent-setting U.S. Supreme Court victories, acting in relation to federal appellate decisions, and defending class actions in state and federal court. 

In addition, we frequently defend clients against false advertising claims before self-regulatory bodies such as the National Advertising Division (NAD). Venable’s experience handling consumer class actions, Lanham Act jury trials, securing federal district court victories against government regulators and staving off advertising-related investigations from the Federal Trade Commission (FTC) sets the firm apart from its competitors. Over the years we have prevailed in some of the toughest advertising-related litigation to go to trial.

Our experience in the courtroom, close ties to federal and state regulatory agencies, intimate understanding of industry self-regulatory bodies, and geographic reach are the primary reasons why clients turn to us for strategic counsel, advice, and legal representation.

If your advertising and marketing cannot stand up to a legal challenge, your product or service offering will most certainly be negatively impacted. Venable is a national leader in advertising and marketing litigation. When leading business need help defending advertising class actions, they turn to us. Over the past year, Venable has defended over a dozen class action cases. Below is a description of some of our current and recently concluded matters in this area.  These matters highlight Venable’s track record of success, our ingenuity, and our ability to find value for our clients even in the face of daunting class action claims.

REPRESENTATIVE MATTERS

  • 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, amongst 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; the motion to dismiss the corporate defendants argued that Plaintiffs had failed to state any viable claim. The Court agreed, holding that it lacked either general or specific jurisdiction over the individuals, and that Plaintiffs failed to state a claim against the corporate defendants because, among other things, the RICO claim lacked predicate fraudulent acts and that 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 in 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 pled 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 in the aggregate exceeded $4 billion. Venable, as lead settlement counsel, negotiated a non-cash settlement in which class members would receive certificates which 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 (as well as its corporate parent and its two founders) in 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 class-wide 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 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 non-profit 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 class-wide 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.