Jeff Warshafsky
Senior Counsel
Jeff Warshafsky is a senior counsel in the Litigation Department. Jeff is a versatile commercial litigator with a particular emphasis on sports litigation and false advertising, trademark and counterfeiting disputes.
Jeff regularly represents clients in consumer class actions, Lanham Act cases, and advertising self-regulation disputes before the National Advertising Division and the National Advertising Review Board. Jeff frequently counsels clients on advertising substantiation issues, anti-counterfeiting strategies, and cybersquatting prevention. He also regularly advises major sports leagues in connection with arbitrations and other confidential matters.
Jeff maintains a robust pro bono immigration practice, assisting clients with asylum and U-Visa applications and in connection with removal proceedings. In addition to his active practice, Jeff is an editor of and contributor to the Firm’s false advertising blog, Watch This Space: Proskauer on Advertising Law.
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This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time, the FTC also announced an updated accompanying guidance document, “FTC’s Endorsement Guides: What People are Asking.” While the revised … Continue Reading
Please join us on Tuesday, September 13, for a Proskauer panel at ANA covering the latest legal developments related to environmental advertising claims. Our panelists, Jeff Warshafsky, Jennifer Yang, and Nicole Sockett, will discuss carbon offsets and lifecycle assessments, recyclability and recycled content claims, general environmental benefit claims, and other key takeaways from the FTC … Continue Reading
Last month, the FTC announced that it reached a $62 million proposed settlement with Opendoor Labs, related to the Commission’s investigation of the company’s representations in advertising to prospective home sellers. Opendoor is an online real estate business in the “iBuying” (or “instant buying”) space. iBuying companies use algorithms to determine a home’s value and … Continue Reading
2021 saw well over 500 new class actions in the advertising space. With the number of these cases increasing, it is more important than ever for businesses to stay on top of the latest trends, including the types of products and claims that are being targeted. Our full report, available here, goes into detail on … Continue Reading
With more than 80 closed cases, 2021 was another unprecedented year at the National Advertising Division and National Advertising Review Board. Proskauer’s False Advertising Group closely tracks these decisions from the advertising industry’s self-regulation system to stay apprised of the latest developments and trends, and has compiled a guide providing case summaries, with our insights … Continue Reading
Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and is “100 % Whole Grain – 18g or more per serving.” Plaintiffs alleged these labels communicate that the oatmeal is … Continue Reading
In Yamasaki v. Zicam, LLC, Case No. 21-cv-2596 (N.D. Cal. 2021), Plaintiff alleged certain Zicam® cold remedy products were falsely advertised as “clinically proven to shorten colds.” On this basis, Plaintiff sought to represent a putative class of California consumers for seven different Zicam products. Zicam, represented by Proskauer, moved to dismiss Plaintiff’s amended complaint … Continue Reading
Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted in its Notice as unfair or deceptive. In particular, the FTC stated that: It is an unfair or deceptive trade practice to make claims which … Continue Reading
Prompted by the proliferation of social media advertising that often blurs the line between authentic content and sponsored posts, the Federal Trade Commission last week sent more than 700 companies a Notice of Penalty Offenses warning them against the use of deceptive endorsements in their online advertising. The Notice advises recipient companies that engaging in … Continue Reading
Beginning in 2020, the advertising world saw an explosion of putative class-actions challenging the use of “vanilla” to describe products where the vanilla flavoring allegedly is not derived exclusively from the vanilla bean plant. We previously blogged about several such cases. One plaintiff’s attorney alone, Spencer Sheehan, has filed—and continues to file—hundreds of these cases. … Continue Reading
Judge Victor Marrero of the Southern District of New York recently largely denied a motion to dismiss claims that Canada Goose misled consumers by representing that the fur on Canada Goose jackets is ethically and sustainably sourced. In doing so, the court determined plaintiff’s allegations were “thin,” but viewing the complaint in the light most … Continue Reading
Judge Todd W. Robinson of the Southern District of California recently dismissed a putative class action against Edgewell Personal Care, the makers of Wet Ones antibacterial hand wipes, alleging it misled consumers by representing Wet Ones kill 99.99 percent of germs and are “hypoallergenic” and “gentle.” In dismissing plaintiff’s claims, the court found no reasonable … Continue Reading
A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act. In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading
Minnesota federal district court Judge Patrick J. Schiltz recently dismissed with prejudice an alleged class action claiming that Champion Petfoods misrepresented the quality of its dog food and ingredients by failing to disclose traces of heavy metals and barbiturates. In dismissing the suit, Judge Schiltz found no reasonable consumer was likely to interpret the contested … Continue Reading
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils as an ingredient in Pop Secret popcorn. McGee v. S-L Snacks Nat’l, Case No. 17-55577 (9th Cir. December 4, 2020). Plaintiff Jacquelyn … Continue Reading
With more than 100 closed cases, 2020 was another busy year at the National Advertising Division and National Advertising Review Board. Proskauer’s False Advertising Group closely tracks these decisions from the advertising industry’s self-regulation system to stay apprised of the latest developments and trends, and has compiled a guide providing case summaries, with our insights … Continue Reading
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading
The beverage industry came out on top in a pair of recently dismissed lawsuits alleging the use of the term “vanilla” on drink labels was misleading, where the vanilla flavor allegedly did not come exclusively from the vanilla bean plant. Howard Clark v. Westbrae Natural, No. 20-cv-03221-JSC (N.D. Cal. December 1, 2020); Ryan Cosgrove et … Continue Reading
Judge Alison Nathan of the U.S. District Court for the Southern District of New York recently dismissed with prejudice a putative class action alleging Starbucks misrepresented itself as a “premium” coffee retailer. In doing so, the Court found that plaintiffs failed to allege Starbucks made any statements likely to mislead reasonable consumers, and that nearly … Continue Reading
NPR and PBS recently released an attention-grabbing investigation titled “How Big Oil Misled The Public Into Believing Plastic Would Be Recycled.” According to the investigation, beginning in the late 1980s, “big oil” began a $50 million-a-year ad campaign promoting the benefits of plastic, while simultaneously informing the public that plastic is recyclable. In fact, according … Continue Reading
Conagra Brands recently emerged victorious when Judge William H. Orrick of the U.S. District Court for the Northern District of California granted summary judgment in its favor, tossing claims that the company disguises the fat and calorie content of its Parkay Spray vegetable oil spray product (“Parkay”) with artificially small serving sizes. Allen v. Conagra … Continue Reading
Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020). Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible … Continue Reading
Judge Paul C. Huck of the U.S. District Court for the Southern District of Florida recently granted a motion to dismiss brought by Defendants The Fresh Market and Tyson Fresh Meats in a putative consumer class action alleging that defendants deceptively marketed their “Chairman’s Reserve Prime Pork” product as graded prime by the federal Department … Continue Reading
After the recent dismissal of nearly identical claims, the same consumer plaintiffs have once again been thwarted in their attempt to challenge labeling and advertising that supposedly misleads consumers into believing the product contains white chocolate. Prescott v. Nestle USA, Inc., No. 19-CV-07471-BLF (N.D. Cal. June 4, 2020). Here, the plaintiffs alleged that Nestle’s use … Continue Reading
FTC Finalizes Updates to Endorsement Guides, Reflecting Increased Focus on Online Reviews and Social Media Marketing
Proskauer Panel on Environmental Advertising Claims at ANA
By Jeff Warshafsky, Nicole Sockett and Jennifer Yang on Posted in Events and Announcements, NAD/NARB/CARU/ERSP
A Slammed (Open)Door: FTC Reaches $62 Million Proposed Settlement with Real Estate Company
By Baldassare Vinti, Jeff Warshafsky and Jana R. Ruthberg on Posted in Deceptive Trade Practices, FTC, Regulatory
Advertising Class Action Trends in 2021
Key 2021 Decisions from the NAD and NARB
By Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Announcements, NAD/NARB/CARU/ERSP
Instant Dismissal: Court Dismisses Instant Oatmeal Case against Whole Foods Market
By Baldassare Vinti, Jeff Warshafsky and Reut N. Samuels on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Court Cuts Short Challenge to Zicam’s “Clinically Proven to Shorten Colds” Claims
By Baldassare Vinti, Jeff Warshafsky and Jessica Griffith on Posted in Deceptive Trade Practices, Labeling Claims
On Notice: Misattributed, False, or Mischaracterized Endorsements
On Notice: FTC Issues Warning to Hundreds of Companies Regarding the Use of Fake Reviews and Other Misleading Endorsements in Online Marketing Campaigns
By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Announcements, Deceptive Trade Practices, FTC, Regulatory
The Rise and Fall of “Vanilla” Labeling Challenges
By Lawrence Weinstein, Jeff Warshafsky and Alyson Tocicki on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
More Than “Puffery”: Claims Against Canada Goose Survive Motion to Dismiss
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Wipes Out “Wet Ones” False Advertising Suit
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Supreme Court Curtails FTC Power to Seek Restitution in Court
By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Deceptive Trade Practices, Regulatory, Supreme Court
Top Dog: Champion Petfoods Wins Dismissal of Dog Food Suit
By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Not a Kernel of Standing: Ninth Circuit Affirms Dismissal of Complaint Against Pop Secret
By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices
Key 2020 Decisions from the NAD and NARB
By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Announcements, NAD/NARB/CARU/ERSP
2020 Advertising Law Year in Review
By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory
Judges Toss Plain “Vanilla” Deceptive Labeling Claims
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Much A-Brew About Nothing: Court Dismisses False Ad Suit Against Starbucks
By Lawrence Weinstein, Jeff Warshafsky and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
As Challenges to Recycling Claims Rise, Use Caution When Giving the “Green” Light
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, NAD/NARB/CARU/ERSP, Regulatory
Conagra Slips Away from Parkay Oil Spray Serving Size Claims
By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Primary Jurisdiction/Preemption, Regulatory
Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger
By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices
Court Tosses Hogwash Claims, OKs Pork Producer’s Use of “Prime” in Advertising
By Lawrence Weinstein, Jeff Warshafsky and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
No “White” Lie: Plaintiffs Fail to Show Reasonable Consumer Would Expect “White Morsels” to Contain White Chocolate
By Lawrence Weinstein, Jeff Warshafsky and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
