Barry M. Benjamin

Representative Matters

• Represented a Mexican food company in an NAD action and successfully defended against false carbohydrate and advertising claims against "carb lean" on certain tortilla products
• Represented a Mexican food company in an NAD action and successfully challenged advertising by a competitor relating to serving size claims and "zero net carb" claims. Competitor agreed to voluntarily discontinue its claim "absolutely ZERO net carbs" and adopt NAD recommendations to conform its products to Food and Drug Administration (FDA)-required serving sizes and all claims related to those new serving sizes
• Represented a telecommunications company in an NAD action and successfully challenged competitor advertising claims of faster speeds of up to 12 times those of client. NAD recommended that the competitor discontinue its claim in markets where client offered faster speeds and modify its claim to more clearly identify the products being compared
• Represented a telecommunications company in an NAD action and successfully challenged advertising by a competitor stating that it has "the fastest speeds in more neighborhoods than any other provider." NAD recommended that the competitor modify or discontinue the claim to avoid conveying the unsupported message that it offers the fastest speeds and is available in more "neighborhoods"
• Represented a telecommunications company in an NAD action and successfully challenged advertising by competitor stating that its wireless backup service provided the same level of connectivity and reliability during a power outage, among other benefits. NAD recommended that the competitor modify its advertising to avoid conveying these unsubstantiated claims
• Represented a telecommunications company in an NAD action and successfully challenged advertising by a competitor, arguing its commercial was false and misleading because (i) it falsely claimed that all of its subscribers can get its fastest service, and (ii) the service is widely available, when neither of those claims were true. NAD concluded that the competitor’s commercial misled viewers as to the actual geographic availability of its service, and recommended that the claim be withdrawn or altered, or a clear and conspicuous disclaimer be included going forward
• Represented a telecommunications company in an NAD action and successfully challenged advertising of a competitor's mobile service, arguing the advertisement was false and misleading because (i) the competitor’s advertisement falsely claimed the client intentionally conceals taxes and fees from consumers, and (ii) the competitor’s advertisement falsely claims that its mobile subscribers will pay only the price identified, without any additional costs or fees. The NAD recommended that the advertiser discontinue the challenged claim against the client and that the competitor's second claim be qualified with a far more prominent disclaimer
• Represented a telecommunications company in an NAD action and successfully challenged a competitor’s argument that the client falsely claims to have a "faster internet experience" than cable with respect to having the bandwidth to handle large file uploads, and that its company delivers "consistent speed, even at peak times.” However, NAD found that the client's claims were supported
• Represented a telecommunications company in an NAD action and successfully challenged advertising by a competitor that (i) falsely implied that the client imposes a hard data limit on its internet subscribers, (ii) falsely claimed that the competitor’s internet service offered "better performance" than its competitors with respect to gaming, (iii) falsely claimed that its internet was more reliable, (iv) falsely claimed that the client charges customers for equipment that it provides for free, (v) falsely claimed that it provides the "fastest internet starting speeds for the price," and (vi) it has "over 99.9% network reliability." The NAD recommended the competitor discontinue claims (i)-(iii) and modify claims (iv)-(vi) to disclose additional qualifying information
• Negotiated a data platform as a service MSA on behalf of a data science and software provider, with an affiliate of an American multinational pharmaceutical, biotechnology, and medical technologies corporation, for research and analysis of patient response and cancer treatment efficacy
• Negotiated a retail mobile security platform as a service in a master service agreement (MSA) on behalf of a major discount variety retailer intended to aggregate video and business data analytics around network camera and digital video platform integration, enterprise data integration, video analytics, reporting, and workflows
• Negotiated a retail data cooperation and MSA and SOWs on behalf of a major discount variety retailer, including e-commerce, in-store, and product purchase data, with a national data ratings aggregator
• Negotiated a Distributed Antenna Systems (DAS) Site License Agreement on behalf of a global real estate and investment company to engage its service provider to design, install, operate, and manage wireless systems throughout new development projects, in New York City and San Francisco
• Negotiated a Global Media Buying MSA, DPA, and statement of work (SOW) on behalf of a major social media platform. Focus included ensuring compliance with applicable privacy laws and protection of customer data
• Negotiated a sourcing and contract management SaaS license agreement on behalf of a real estate asset management company
• Negotiated an influencer agreement on behalf of a major cruise line with multiple social media influencers and celebrities
• Negotiated a customer service and feedback SaaS license agreement on behalf of national full-service restaurants and convenience stores
• Negotiated an outsource MSA on behalf of an international hotel company's vendor to provide end-to-end call center operations, including sales and service-related telephone work, managed network services, telecommunications, and related IT services
• Represented a designer clothing brand with its development of an SMS text message marketing program
• Successfully represented the world's leading manufacturer of home furnishings in forcing a competitor to stop making false and/or unsubstantiated "Made in the USA" claims in advertising
• Advised a global telecommunications leader about FTC privacy regulations and the COPPA rule specifically
• Drafted the "Welcome Home Joe" licensing and promotional contract for an apparel company and with Iraq and Afghanistan Veterans of America (IAVA), and a major clothing retailer. This promotion provides Iraq and Afghanistan veterans with $1 million in certificates to purchase professional attire as they transition to the civilian workforce. Representation of the clothing company in this contract also included providing clearing advertising copy, negotiating terms and conditions for the promotion, and advising on trademark clearance issues
• Successfully represented a children's clothing designer in a copyright infringement case relating to the defendant making knockoffs of its toddler dress designs. The firm negotiated a favorable monetary settlement for the client and obtained a final judgment on consent with permanent injunction
• Advised a marketing agency on all 50 states' regulations governing a sweepstakes promotion by wine and spirits distributors
• Represented the maker of pesticide-free head lice solution products at the NAD against a competitor challenging certain advertising claims
• Represented a corporate printing company in the development of email marketing policy and CAN-SPAM compliance
• Advised a television network broadcaster on state gambling laws in connection with a proposed televised charity poker tournament
• Advised a financial institution on compliance with 50 states' telemarketing laws
• Advised a medical device manufacturer on state regulations around corporate fundraising efforts, including raffles and a casino night
• Represented a men's apparel designer in negotiation of a major sports event's on-air talent clothing outfitting agreement
• Represented an over-the-counter drug manufacturer in the negotiation of a race car sponsorship agreement
• Advised an advertising agency on the use of landmarks in advertising
• Advised a global supplier of medical devices on the privacy and advertising laws of various foreign countries in preparation for a global marketing campaign
• Successfully represented a solar technology company in separate investigations by the NAD and CARU of the Advertising Self-Regulatory Council seeking substantiation for the client's explicit nutritional content claims for its cookie product and inquiring whether the client's advertising included an unsubstantiated implied overall equivalency claim concerning the benchmark foods used to illustrate the product's nutritional content
• Advised a major cruise line on privacy and cross-border consumer personal data transfer issues
• Represented a footwear maker in defense of right of privacy/publicity claims by models whose images appeared on packaging
• Represented a website operator in an advisory capacity regarding compliance with state lottery and gambling laws concerning internet sales of lottery and gambling devices
• Represented an international apparel brand owner in a charitable commercial co-venture, coordinating compliance with state law registration and filing obligations
• Advised a light bulb manufacturer in the creation of a warranty and advertising that complied with FTC light bulb regulations and the Magnusson-Moss Warranty Act
• Represented a financial media publisher defending against claims of copyright infringement and hot news misappropriation
• Defended an internet marketer and web hosting company from fraudulent advertising practices and unfair and deceptive trade practice allegations by a state attorney general

Education

• J.D. Fordham University School of Law 1993
• B.A. University of Michigan 1990

Bar Admissions

• New York
• New Jersey

Professional Memberships and Activities

• Association of National Advertisers (ANA)
  • Member, Legal Affairs Committee
  • Member, Government Relations Committee
• Member, Consumer Affairs Committee, New York City Bar Association, 2021 – 2024

• Chambers USA, America's Leading Lawyers for Business, Transactional and Regulatory Advertising, 2018 – 2025
• The Best Lawyers in America, Advertising Law, 2011 – 2026
• Super Lawyers, New York, 2009 – 2026
• Lexology Index, Data -Telecoms and Media Law, 2016 – 2025

Pro Bono

• Represented clients in advertising clearance and nonprofit partnerships
• Advises nonprofits on legal aspects of commercial co-ventures and promotional campaigns