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Practice Overview

Advertising Enforcement, Investigations & Litigation

Olshan's regulatory enforcement litigation group is comprised of highly experienced litigation attorneys, including former government prosecutors, who frequently defend government enforcement investigations and enforcement actions. The group represents marketers and related suppliers on advertising compliance, marketing practices, and other compliance matters. The group routinely represents clients in regulatory inquiries and defends litigation brought by federal, state and local regulatory bodies. Clients appreciate the experience Olshan brings to the table when facing a government enforcement effort.

The regulatory enforcement litigation law group regularly represents clients facing investigations for violations of Section 5 of the FTC Act as well as rules enforced by the agency. For example, we handle investigations and litigation focusing on the level of substantiation support for product efficacy claims. In addition, we handle investigations and litigation involving calls subject to the FTC's Testimonial and Endorsement Guides, CAN-SPAM, the Telemarketing Sales Rule, Regulation E relating to billing practices, as well as other industry specific guides.

We are frequently called upon to handle investigatory and challenges asserted by other regulatory agencies regarding advertising and marketing practices, including the United States Senate, the United States Postal Service, United States Food and Drug Administration, United States Department of Justice, Federal Communications Commission, state attorneys general (either individually or collectively through NAAG), county district attorneys, and various state public utility commissions.

Whenever possible, we seek to resolve investigations by addressing government concerns outside of litigation. However, if we are unable to do so on a reasonable basis, our firm has extensive experience defending against FTC and state attorney general actions. We have significant experience defending regulatory enforcement matters involving:

  • Allegations of false or unsubstantiated claims, unfair or deceptive practices, or violations of trade regulations enforced by the FTC and state attorneys general
  • Allegations of false advertising or violation of postal requirements before the United States Postal Service (USPS) Administrative Judicial System
  • Multi-state matters involving sweepstakes advertising
  • Allegations of false advertising, failure to substantiate claims, labeling violations, misbranding or adulteration before the Food and Drug Administration (FDA)
  • Allegations of false or deceptive marketing activities (including slamming and cramming allegations) before the Federal Communications Commission (FCC), state attorneys general, and state public utility commissions or public service commissions
  • Allegations of unfair business practices and violations of local and state business regulations and privacy laws before state attorneys general and county district attorneys
  • Product recalls by the Consumer Product Safety Commission (CPSC)

Clients and Industries

Examples of businesses and marketing practices involved in government enforcement actions our attorneys have handled include:

  • Internet Marketing
  • Mobile Marketing
  • Products and Services utilizing LEC (landline) and Mobile billing
  • Text Messaging Campaigns
  • Direct Mail Campaigns
  • Payment Processing (credit card; demand draft; check)
  • List Management/List Brokerage
  • Continuity/Auto-renewal program/Advance Consent Marketing
  • Catalog Programs
  • Dietary Supplements and Rx Drugs
  • Medical Devices
  • Cosmetic Products
  • Food Marketing/Health Foods
  • Sweepstakes and Contests
  • Payday Lending
  • Telecommunications Services
  • Travel Services
  • Lead Generation
  • Toys/Children's Products
  • Membership Clubs
  • Astrology Programs

Private Plaintiff/Class Action Defense

The firm defends consumer fraud lawsuits around the nation, whether filed on an individual or a class action basis. This includes defending allegations of false advertising/deceptive trade practices relating to health, household, and collectible products, as well as online and telecommunications services. In addition, we regularly defend consumer class and individual actions challenging direct marketing practices, such as claims brought under the Telephone Consumer Protection Act (TCPA), unauthorized charges, shipping and handling charges, BOGO, and telemarketing.

Class Action Defense Clients/Industries

Examples of businesses and marketing practices involved in class action defense include:

  • Mobile/SMS Campaigns
  • Internet Marketing Practices
  • Products and Services utilizing LEC (landline) and Mobile billing
  • Telemarketing Campaigns
  • BOGO Offers
  • Shipping and Handling Charges
  • Dietary Supplements/Nutritional Products
  • Health Products and Exercise Devices
  • Cosmetic Products
  • Household Products

Competitor Litigation

We regularly represent companies in consumer and business litigation involving false and deceptive advertising issues, intellectual property, unfair competition and trade secrets, and commercial matters in federal district courts and state courts as well as before administrative and arbitral bodies. The firm has significant experience prosecuting and defending false or deceptive advertising claims under Section 43(a) of the Lanham Act as well as analogous state unfair competition claims, including claims involving marketing practices.

In addition to cases in state and federal courts, we frequently represent clients before self-regulatory bodies, such as the National Advertising Division (NAD), the Electronic Retailing Self-Regulation Program (ERSP), the Children's Advertising Review Unit (CARU) and the National Advertising Review Board (NARB). The firm initiates and defends challenges before these bodies on behalf of advertisers who wish to take advantage of the benefits of the self-regulatory processes. In addition, the firm represents national advertisers whose advertising becomes the focus of a challenge.

Recent self-regulatory matters include travel services, Internet gaming, men's health and cosmetic products, dietary and nutritional supplements, cosmetic products, household products, construction products, and credit cards/financial services.

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