Proskauer on Advertising Law
Proskauer on Advertising Law
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Jeff Warshafsky

Partner

Jeff Warshafsky is a partner in the Litigation Department. A versatile commercial litigator and strategic advisor, Jeff specializes in consumer class actions, sports litigation, false advertising, trademark, and other intellectual property disputes.

Jeff defends companies in connection with consumer class actions involving advertising and privacy issues. He has handled dozens of class actions around the country for multinational companies across diverse sectors including consumer product companies, retailers, and sports leagues. Jeff also counsels clients to avoid being targeted in such actions, helps them respond to demand letters from plaintiffs’ counsel, and negotiates resolutions.

Additionally, Jeff represents clients in competitor versus competitor advertising disputes, including in Lanham Act cases and advertising self-regulation disputes before the National Advertising Division and the National Advertising Review Board. He also counsels companies on advertising substantiation issues, with an emphasis on complex scientific testing, such as clinical trials and sensory testing. Jeff regularly advises major sports leagues on complex business disputes.

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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Conagra Slips Away from Parkay Oil Spray Serving Size Claims

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

Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger

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

Court Tosses Hogwash Claims, OKs Pork Producer’s Use of “Prime” in Advertising

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

No “White” Lie: Plaintiffs Fail to Show Reasonable Consumer Would Expect “White Morsels” to Contain White Chocolate

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

Seventh Circuit Cans District Court Injunction in Beer Brands Corn Syrup Suit

Last month, the Seventh Circuit reversed a district court’s decision preliminarily enjoining Anheuser-Busch from making various advertising claims related to the absence of corn syrup in Bud Light, including that Bud Light has “no corn syrup,” that Molson Coors’s competing Miller Lite and Coors Lite beers are “made with” or “brewed with” corn syrup, and … Continue Reading

Judge Dismisses Half-Baked False Advertising Claims Against Ghirardelli

On April 8, 2020, Judge Phyllis J. Hamilton of the U.S. District Court for the Northern District of California granted Ghirardelli Chocolate’s motion to dismiss a putative nationwide class action brought by several consumers who alleged Ghirardelli deceptively marketed its “premium classic white” baking chips as containing white chocolate. Cheslow v. Ghirardelli Chocolate, No. 19-CV-07467-PJH, … Continue Reading

Fifth Circuit Rains on Plaintiff’s Parade, Vacates Award in Dispute over Windshield Water Repellant Ad

Last month, a Fifth Circuit panel vacated in part a judgment in a false advertising case that disgorged the defendant’s profits, awarded corrective advertising damages under the Lanham Act and enjoined the disputed claims. Illinois Tool Works v. Rust-Oleum, 955 F.3d 512 (5th Cir. 2020). The panel held that the plaintiff failed to show the … Continue Reading

Second Circuit Finds Consumer Suit Against Dunkin’ Not Well Done

A Second Circuit panel recently affirmed the dismissal of a putative false advertising class action against Dunkin’ Brands, which alleged the company misled consumers as to the contents of products Dunkin’ described as “Angus steak.” Chen v. Dunkin’ Brands, 18-cv-3087 (2d Cir. Mar. 31, 2020). The complaint asserted claims under various state consumer protection laws, … Continue Reading

La Croix Loses Rule 11 Battle but Wins War, as Plaintiff Retracts Lawsuit Allegations

National Beverage Corporation, the maker of the popular LaCroix sparkling water products, failed to obtain Rule 11 sanctions against a consumer plaintiff, but ultimately scored a major victory recently, when the plaintiff not only withdrew her lawsuit, but also took the remarkable step of publicly retracting her claims alleging that LaCroix “all natural” and “100% … Continue Reading

The RealReal Falls Seven Bags Short of 100% Compliance with Advertising Claims

Judge Vernon Broderick of the U.S. District Court for the Southern District of New York recently decided a motion to dismiss by luxury consignment goods reseller The RealReal (“TRR”) in an action brought by famous French brand Chanel. Chanel v. The Realreal, 2020 WL 1503422 (S.D.N.Y. Mar. 30, 2020). In addition to the false advertising … Continue Reading

Beverage Mislabeling Suit Runs Out of Juice

On February 6, the California Court of Appeals (Second Appellate District) sustained a lower court’s dismissal of a putative class action alleging that the claim “no sugar added” on the label of tangerine juice is deceptive because it falsely implies that competing products do contain added sugar. Schaeffer v. Califia Farms, BC654207 (Cal. App. 2d … Continue Reading

The Fun Did Stop for Pringles False Advertising Class Action

On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).… Continue Reading

Update on Oral Argument in Romag: Supreme Court Considers Whether Willfulness is Required to Disgorge a Defendant’s Profits under the Lanham Act

Last summer, we covered  the Supreme Court’s decision to grant certiorari in Romag Fasteners v. Fossil in order to decide whether § 1117(a) of the Lanham Act requires that a plaintiff make a showing of willfulness in order to obtain a trademark infringement defendant’s profits for a violation of § 1125(a). As we noted in … Continue Reading

Proskauer in San Diego at the 41st Annual ANA/BAA Marketing Law Conference

The Association of National Advertisers and the Brand Activation Association will be hosting their 41st annual Marketing Law Conference at the Marriott Marquis in San Diego, CA from November 4-6. Proskauer is a sponsor of the conference, and will be speaking on two separate panels. Lawrence Weinstein, the co-chair of Proskauer’s Intellectual Property Litigation Group and … Continue Reading

Plaintiff Fails to Butter Up Court with Mashed Potato Suit

We have previously written about decisions addressing food product labels, and the messages that these labels convey about the products’ ingredients. In Jessani v. Monini, the Second Circuit found that a product label for “white truffle flavored” olive oil did not imply that the product contained actual white truffles. Not long afterwards, the Second Circuit … Continue Reading

SCOTUS to Decide Whether the Lanham Act Requires Proof of Willfulness for Disgorgement of Profits

On Friday, June 28, 2019, the Supreme Court granted certiorari in Romag Fasteners, Inc. v. Fossil, Inc. to decide whether a showing of willfulness is necessary to obtain a defendant’s profits under the Lanham Act. In Romag, the plaintiff, a manufacturer of magnetic snap fasteners, sued Fossil and various retailers for, among other things, infringement … Continue Reading

California Court Sours on Starbucks Gummies Lawsuit

Several months ago we covered two Second Circuit decisions that addressed false advertising claims related to ingredients and product labeling of foods, which reached differing results. Applying similar principles, a recent decision from the Southern District of California found that Starbucks’ packaging for its sour gummy candies did not reasonably suggest that the candies were … Continue Reading

Ninth Circuit Sends Brain-Booster Claim Case Back to District Court

After Ninth Circuit review, it remains to be seen whether a nutritional supplement maker can claim that ginkgo biloba leaf extract and vinpocetine supplements improve “alertness,” “mental clarity, and memory” in the face of contradictory scientific studies. In Korolshteyn v. Costco Wholesale, No. 17-56435 (2019), the Ninth Circuit reversed a district court order granting summary judgment in favor … Continue Reading

SDNY Judge Not Sweet on Dannon’s Bid for a Preliminary Injunction

In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false advertising suit against Chobani. The result of Judge McMahon’s decision is that Chobani can continue to sell its yogurt drinks … Continue Reading

SCOTUS to Decide If Courts Must Defer to the FCC’s Interpretation of “Unsolicited Advertisements” under the TCPA

On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading

No Use Crying Over Spilled (Almond) Milk: Ninth Circuit Upholds Dismissal of Almond Milk Labeling Suit

On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages was misleading. Painter v. Blue Diamond Growers, — Fed.Appx. —, 2018 WL 6720560 (9th Cir. Dec. 20, 2018). The named … Continue Reading

Cheez-Its Class Action Revived in “Whole” by Second Circuit

We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a complaint alleging that the label of an extra virgin olive oil product advertised as “truffle flavored” falsely implied that the product contained … Continue Reading

Eleventh Circuit Works Out Preclusion and Preemption Issues in Protein Powder Dispute

On December 4, 2018, the Eleventh Circuit partially reversed the dismissal of Hi-Tech Pharmaceuticals’ suit against HBS International Corp. for alleged violations of the Lanham Act and Georgia’s Uniform Deceptive Trade Practices Act. Hi-Tech Pharmaceuticals, Inc. v. HBS International Corp., No. 17-13884 (11th Cir. 2018). Hi-Tech alleged that the label of HBS’s protein-powder supplement – … Continue Reading
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