Proskauer on Advertising Law
Proskauer on Advertising Law
Alexander Kaplan

Alexander Kaplan

Partner

Alexander Kaplan is a partner in the Litigation Department. Alex is a commercial litigator and trial lawyer with broad expertise in intellectual property litigation and counseling. He has substantial experience in the fields of copyright, trademark, advertising and trade secrets law, representing clients in a wide array of fields and industries.

In trademark and false advertising matters, Alex represents and advises a range of consumer product, fashion, food and beverage, pharmaceutical and medical device companies before the federal courts, TTAB and NAD. He has represented both plaintiffs and defendants in numerous Lanham Act matters in courts across the country, including in multiple preliminary injunction hearings and jury trials. Beyond litigation, Alex frequently counsels clients concerning advertising and marketing claim substantiation and review. He is an editor of and contributor to Proskauer’s advertising law blog, Watch This Space: Proskauer on Advertising Law, and is a frequent speaker at advertising law conferences and courses.

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FTC and DeVry University Settle False Advertising Claims for $100M

In December 2016, DeVry University agreed to pay $100 million to settle a lawsuit with the Federal Trade Commission (FTC) over allegations stemming from DeVry’s advertising about the employment rates and salaries of its graduates. According to the FTC press release announcing the settlement in FTC v. DeVry Educ. Group in the district court for … Continue Reading

Update on Second Circuit Ruling in Church & Dwight v. SPD Swiss Precision Diagnostics “Weeks Estimator” Home Pregnancy Test Litigation

Last month we summarized the Second Circuit’s important decision in a dispute between plaintiff-appellee Church & Dwight and its principal competitor, defendant-appellant SPD Swiss Precision Diagnostics, concerning SPD’s false advertising of its Clearblue Weeks Estimator Home Pregnancy Test.  As we reported, a Second Circuit panel in September unanimously affirmed rulings by Judge Alison Nathan of … Continue Reading

Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously

In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously affirmed orders by Judge Alison Nathan of the Southern District of New York, following a bench trial on liability, (i) holding that SPD … Continue Reading

Proskauer: Principal Sponsor of 38th Annual BAA Marketing Law Conference

On Wednesday November 9 through Friday November 11, the Association of National Advertisers and the Brand Activation Association (BAA) held their 38th annual Marketing Law Conference at the Downtown Chicago Marriott Hotel, 540 N. Michigan Avenue, Chicago, IL 60611.  Proskauer was a principal sponsor of the conference, and two of our partners – Lawrence Weinstein, the … Continue Reading

FDA New-trition Rules

Last month, the FDA finalized amendments to the Nutrition Facts labeling rules for packaged foods and dietary supplements to reflect developments in nutrition science, including new scientific information regarding the link between diet and chronic diseases such as obesity and heart disease. Here are the highlights:… Continue Reading

The FTC Trims the Fat Off Even More Companies Selling Weight Loss Products

Hungry to prevent more companies from selling allegedly bogus weight loss products, the FTC has settled yet another false advertising suit against various sellers of diet pills, in a case similar to February’s Sale Slash settlement blogged about here.  The FTC’s latest diet pill settlement enjoins distributors of the dietary supplement known as Pure Green Coffee … Continue Reading

Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align. Last August, a divided panel of the Sixth Circuit affirmed class certification. In October, the Sixth Circuit stayed its … Continue Reading

Fourth Circuit Extends Section 43(a) Lanham Act Standing to Companies Not Selling Their Product or Using Their Mark in the U.S.

Last week, an appellate court held that a plaintiff has standing to bring a false association and false advertising claim under Section 43(a) of the Lanham Act, even though it did not use its mark or sell its competing product in the United States. In Belmora LLC v. Bayer Consumer Care AG, a Fourth Circuit … Continue Reading

SPF 70 Claims Blocked

A putative class action got burned at the certification stage earlier this month when U.S. Magistrate Judge Edwin G. Torres for the Southern District of Florida found that the proposed class failed to satisfy the ascertainability and typicality requirements. Plaintiff Nathan Dapeer sued Neutrogena, claiming that he and similarly situated consumers had been deceived by … Continue Reading

Snack Time: Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive

Last month, the Northern District of California held that prominent photographs of fruits and vegetables on Plum Organics’ food packaging were not enough to mislead a reasonable consumer into believing that the pictured produce were the product’s predominant ingredients. A picture on food packaging may speak a thousand words but, according to the court, reasonable … Continue Reading

Follow Instructions For Use Carefully: NARB Affirms Clorox Advertisement Is Unsubstantiated

A recent National Advertising Review Board (“NARB”) decision reminds advertisers to adhere to a fundamental principle of product testing: competing products should be tested in accordance with their usage instructions to substantiate comparative claims. The September 8, 2015 decision involved a Clorox advertisement showing side-by-side white t-shirts with large spaghetti stains. One shirt was treated … Continue Reading

Staying Natural: Hain Label Dispute Must Wait for Ninth Circuit Decisions

A district judge in the Northern District of California pressed pause on a mislabeling suit involving “natural” claims pending the outcome of two Ninth Circuit appeals. Astiana v. The Hain Celestial Group, Inc., et al., No. 11-cv-06342 (PJH) (N.D. Cal.) is a putative class action in which the consumer plaintiffs alleged that Hain misleadingly labeled … Continue Reading

BAA’s 37th Marketing Law Conference-Walking the Line: Between Innovation and Regulation

Larry Weinstein and Alex Kaplan recently presented on cutting-edge topics in advertising law at the Brand Activation Association’s Marketing Law Conference, Walking the Line: Between Innovation and Regulation, one of the industry’s most important marketing and advertising law conferences. The BAA’s 37th annual Conference was held on November 10th and 11th at the Chicago Marriott … Continue Reading

Punch to the Gut: Government Denied Contempt Ruling in Bayer Probiotic Case

Bayer recently avoided a contempt finding concerning its Phillips’ Colon Health (“PCH”) probiotics advertising. Bayer advertised PCH as “Promot[ing] Overall Digestive Health” and “Help[ing] Defend Against Occasional Constipation, Diarrhea, Gas and Bloating.” The Government contended Bayer violated a 2007 consent decree requiring Bayer to possess “competent and reliable scientific evidence” substantiating such claims. To support … Continue Reading

A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing mislabeled yarn lacked standing to bring a Lanham Act false advertising claim. Knit With v. Knitting Fever, … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

For plaintiffs concerned that the Fourth Circuit Court of Appeals’ June 19, 2015 decision in Brown v. GNC Corp. signaled the muscling in of a stricter new pleading standard for false advertising class actions nationwide, a recent ruling out of the Central District of California likely acted as a pacifier. On July 14, 2015, U.S. … Continue Reading

Irreparable Harm and Trademark Law Demystified! A 2015 Perspective LIVE Webcast

Alex Kaplan was one of three panelists speaking at the Knowledge Congress’ webcast “Irreparable Harm and Trademark Law Demystified! A 2015 Perspective LIVE Webcast” This event was scheduled for Thursday, October 1, 2015 @ 12:00pm-2:00pm ET.  Complimentary passes were available for the first 30 registrants courtesy of Proskauer at https://gkc.memberclicks.net/index.php?option=com_mc&view=mc&mcid=form_199984.  The event synopsis is below: … Continue Reading

Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

A recent Sixth Circuit decision that affirmed certification of a multi-state consumer class action asserting false advertising claims concerning Align – a Proctor & Gamble probiotic product promising digestive health benefits – has left us with an uneasy feeling in the pit of our stomachs. In Rikos v. P&G, the judge writing the opinion of … Continue Reading

Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin Disclaimers

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern District of Florida. Marty et al. v. Anheuser-Busch Cos., 13-cv-23656-JJO (S.D. Fla.). Anheuser-Busch’s decision to settle the Beck’s suit … Continue Reading

Tailoring the Suit: Plaintiffs File Amended Complaint in Nordstrom Rack Price-Tag False Advertising Lawsuit

Nordstrom Rack has recently found itself at the center of an unwelcome suit over its labeling practices. Nordstrom Rack discloses the savings it offers customers by placing “compare at” labels on its price tags which show two prices: the “compare at” price and a lower, actual sale price. A recent class action filed in the … Continue Reading

In Consumer Class Actions, Discovery is not Insured

Consumer class action defendants in New Jersey state courts may be able to avoid costly discovery following a New Jersey state appeals court’s recent affirmance of a pre-discovery denial of class action certification in Myska v. New Jersey Manufacturers Co. The putative class alleged that the defendants violated New Jersey’s Consumer Fraud Act by improperly … Continue Reading

A Court in the Sunshine State Blocks Injunctive Relief against Neutrogena Sunscreen Claims; Meanwhile P&G Cannot Flush Charmin Claims for the Same Relief in New York

Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However, plaintiff vows never to buy the product displaying the allegedly false advertising again or cannot purchase the product so-labeled because the … Continue Reading

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

Although consumer class actions in California are dime-a-dozen, a recent Northern District of California case involving One A Day vitamins stands out because it demonstrates how federal regulations can preempt certain state law claims regarding the health benefits of dietary supplements. The putative class alleged that three statements made by Bayer on their One A … Continue Reading

Upcoming Event with the Institute for Perception

The Institute for Perception’s 2015 Advertising Claims Support Course April 13-15, 2015 The Greenbrier Resort White Sulphur Springs, WV Alexander Kaplan is a featured instructor for The Institute for Perception’s Annual Advertising Claims Support course. This is a professional development course for market research managers, product developers, intellectual property lawyers, in-house counsel, sensory and consumer … Continue Reading
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