Proskauer on Advertising Law
Proskauer on Advertising Law
Daniel Werb

Daniel Werb

Associate

Daniel Werb is an associate in the Litigation Department.

Prior to joining Proskauer, Dan was a judicial intern for the Honorable Eric N. Vitaliano of the U.S. District Court for the Eastern District of New York. At Columbia Law School, he served as an Articles Editor of the Columbia Journal of Law & the Arts and was an extern at Volunteer Lawyers for the Arts.

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Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation … Continue Reading

Second Circuit Dismisses Claims of Would-Be Ad-Blockers

On November 22, 2017, the Second Circuit in Heskiaoff v. Sling Media affirmed the dismissal of a class action complaint against Sling Media that alleged deceptive business practices in connection with Sling’s introduction of advertisements into its television streaming service.  In a summary order, the panel affirmed the district court’s holding that the complaint and proposed … Continue Reading

New Jersey Supreme Court Announces Last Call for TCCWNA Happy Hour

In recent years, creative plaintiff-side class action attorneys in New Jersey have attempted to seek relief under the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), which allows for $100 in statutory damages per violation to “aggrieved consumers” when terms in certain contracts or other writings violate a “clearly established legal right of a … Continue Reading

SEC Issues Risk Alert on the Most Frequent Advertising Rule Compliance Issues and Use of Accolades in Advertisements

On September 14, 2017, the staff of the SEC’s Office of Compliance Inspections and Examinations (OCIE) issued a National Examination Program Risk Alert on the most frequent advertising rule compliance issues identified in OCIE examinations of investment advisers.  This Risk Alert reflected issues identified in deficiency letters generated in the course of over 1,000 adviser examinations … Continue Reading

Jury Tests the Limits in AndroGel False Ad Verdict

In late July, an Illinois jury came to a bizarre verdict in a case over an alleged link between heart attacks and AndroGel, a gel product used for treating low testosterone (or “low T”). The jury found that AbbVie, Inc., the drug company behind AndroGel, although not strictly liable or negligent in allegedly causing a … Continue Reading

Athletic Tape Maker Feels the Pain, Settles Misleading Advertising Suit

Proskauer’s sports law newsletter, Three Point Shot, recently covered a proposed $1.75 million settlement in a false advertising case involving athletic tape.  The case is Vuckovic v. KT Health Holdings, LLC, No. 15-cv-13696 in the U.S. District Court for the District of Massachusetts, and Proskauer’s coverage may be found here. *** Want to talk advertising? We welcome your … Continue Reading

Foreign Importer Hanging by a Thread, but International Trade Commission Cuts It Off

The International Trade Commission recently issued a general exclusion order barring the importation of bed sheets with falsely advertised thread counts as a remedy for Section 337 violations.  The decision in In re Certain Woven Textile Fabrics and Products Containing Same demonstrates the potential reach of Section 337, which prohibits unfair practices related to the … Continue Reading

Larry Weinstein and Brendan O’Rourke Named to the Inaugural Class of the Legal 500 Hall of Fame

Larry Weinstein and Brendan O’Rourke, co-chairs of our False Advertising and Trademark Practice, were recently named to the inaugural class of the Legal 500 Hall of Fame. This award honors individuals who have, according to Legal 500, received constant praise by their clients for continued excellence. The Hall of Fame highlights the law firm partners … Continue Reading

The Institute for Perception’s 2017 Advertising Claims Support Course

Alexander Kaplan is a featured instructor for The Institute for Perception’s upcoming course, Advertising Claims Support: Case Histories and Principles. The course takes place on April 18–20, 2017, at the Greenbrier Resort in White Sulphur Springs, West Virginia. This is a professional development course for attorneys specializing in advertising law, market research managers, product developers, in-house counsel, … Continue Reading

Elsevier Wins Summary Judgment Over Use of 3-D Medical Animations in Copyright Case

Although this blog typically focuses on legal developments in marketing and false advertising, its authors and editors are of course active legal practitioners in related areas of IP and other creative industries. Proskauer recently received a favorable summary judgment decision for the defendant, its client Elsevier, Inc., a leading publisher in the fields of science, … Continue Reading

Proskauer’s Larry Weinstein at 2017 ANA Advertising Law & Public Policy Conference

On March 28 and 29, the Association of National Advertisers hosted its thirteenth annual Advertising Law & Public Policy Conference at the Ritz-Carlton in Washington, DC. Proskauer was a sponsor of the conference, and Proskauer’s Larry Weinstein participated on the “Tweeting with Words” panel, in which the panel fielded a wide-range of questions live-tweeted from attendees. … Continue Reading

California Court Issues Surprising Decision in Discount Advertising Case

On December 15, 2016, the California Court of Appeals in Los Angeles came to a surprising summary judgment decision in Sajid Veera et al. v. Banana Republic, LLC.  The court held that plaintiffs who claimed they were misled by 40% off signs raised a triable issue of whether they suffered an injury-in-fact even though they … Continue Reading

Proskauer’s Larry Weinstein Discusses Implications of Bautista v. Cytosport in Legal NewsLine Article

Last week, this blog covered the slack-fill decision in Bautista v. Cytosport, Inc., 2016 WL 7192109 (S.D.N.Y. Dec. 12, 2016), in which the court dismissed the putative class action complaint for failure to allege non-conclusory facts. Larry Weinstein, co-head of Proskauer’s False Advertising & Trademark practice, was quoted at length in Legal NewsLine discussing the … 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

Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California

Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.” Last month, the Ninth Circuit rejected plaintiff’s petition for rehearing en banc but also amended its earlier opinion. Though … Continue Reading

Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?

On January 20, 2016, the Supreme Court held in Campbell-Ewald v. Gomez, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016) that an unaccepted pre-certification settlement offer of complete relief in a putative class action, made to an individual plaintiff, does not moot that plaintiff’s claims.  As discussed in our previous coverage of … 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 Promise & Peril of Comparative Advertising — Webinar Held on May 17

Comparative advertisements can be powerful drivers of consumer purchasing decisions. However, such ads are also highly unpopular with the competitor that is the subject of the comparison, and therefore are among the most frequently challenged advertisements both in Lanham Act false advertising suits and at NAD. In this webinar, Proskauer partner Larry Weinstein discussed best … Continue Reading

Want to Settle Before Class Certification? The Supreme Court Raises the Stakes

Recently, the U.S. Supreme Court held in Campbell-Ewald Co. v. Gomez, a putative class action case, that an unaccepted pre-certification settlement offer to the named plaintiff does not moot either the plaintiff’s claim or that of the supposed class.  The case involved a claim under the Telephone Consumer Protection Act (“TCPA”) and was decided on … Continue Reading

FTC Issues Enforcement Policy Statement on Native Advertising in New Media

Proskauer’s New Media and Technology Law Blog recently provided a helpful summary of the FTC’s Enforcement Policy Statement on native advertising.  Check it out here. *** Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer … Continue Reading
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