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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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
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
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the case we are covering today: Frompovicz v. Niagara Bottling, LLC, 2018 WL 4465879 (E.D. Pa. Sept. 18, 2018).… Continue Reading
Last fall, we covered the Southern District of New York’s dismissal of Board-Tech Electronic Company’s Lanham Act false advertising claim. Based on its own internal testing, Board-Tech alleged that light switches sold by its competitor, Eaton Corporation, were falsely labeled as complying with an Underwriters Laboratories (“UL”) certification standard. However, the district court found that … Continue Reading
Recently, a plaintiff’s purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term “Diet” alone on a soft drink label does not constitute a claim that the soft drink will assist in weight loss. In Becerra v. Dr. Pepper/Seven Up, Inc., Plaintiff Shana Becerra brought a putative … Continue Reading
Earlier this month, Judge William H. Pauley III in the Southern District of New York stayed a lawsuit against the snack bar maker KIND LLC, styled as a class action, alleging that KIND falsely marketed its products as “all natural” and “non-GMO.” In re KIND LLC “Healthy & All Natural” Litigation, 2018 WL 1156009 (S.D.N.Y. … Continue Reading
The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws. Bruton v. Gerber Products Co. et al. The plaintiff had previously moved to certify a damages and an injunctive relief class in 2014. However, … Continue Reading
In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs. Wandering Dago, Inc. v. Destito et al. This case is an early example of how the Supreme … Continue Reading
Last week, a federal judge in Manhattan examined the intersection of false advertising and trademark infringement law in connection with the alleged misuse of a certification mark, and found the plaintiff to be entitled to neither body of law as a means to stop a competitor from advertising its products as “UL Certified.” The court … Continue Reading
It’s not every day that a law firm sues a competing firm for false advertising. Earlier this month, however, a Wichita, Kansas personal injury law firm did just that. Brave Law Firm sued rival firm Truck Accident Lawyer’s Group and allegedly related entities in the U.S. District Court for the District of Kansas, alleging violations … Continue Reading
Recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court’s denial of class certification after plaintiff voluntarily dismissed his claims with prejudice. While 28 U.S.C. § 1291 allows appeals from final … Continue Reading
Last week, we covered a summary judgment decision holding that posts on the “Science-Based Medicine” blog were not “commercial speech” under the Lanham Act, and therefore the defendant in that case was not liable for false advertising in violation of that statute. In a similar recent decision, a judge in the Eastern District of Michigan … Continue Reading
The Second Circuit recently affirmed a district court’s grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by Abbott Laboratories under the “Freestyle” trademark. The decision is notable because the authentic test strips were identical to the gray-good versions. Read more here. *** Want to talk advertising? We welcome … Continue Reading
The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest. This post addresses Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 2016). As part of its ongoing monitoring program, NAD reviewed Intraceuticals’ advertising claims that … Continue Reading
On May 10, 2016, Judge Joseph F. Leeson, Jr. of the Eastern District of Pennsylvania granted summary judgment on false advertising and trademark claims in favor of defendant Tyson Foods, Inc. and a subsidiary, the makers of “Park’s Finest” frankfurters. The decision illustrates important distinctions between two causes of action—trademark infringement and false advertising—both covered … Continue Reading
In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff had alleged a particularized injury, and failed to assess whether the alleged injury was “concrete”. Although Spokeo was … Continue Reading
In December, the California Supreme Court held that a challenge to a farm’s labeling of its herbs as “organic” under state false advertising laws is not preempted by the federal Organic Foods Production Act of 1990 (“Organic Foods Act”). Although the Defendant, Herb Thyme Farms, Inc., typically used conventional herb-growing methods, one of its farms … Continue Reading
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
It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no surprise that a California state appellate court recently rejected attempts by several plaintiffs to impose different … Continue Reading
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
Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is disseminated” against Skinnygirl Cocktails, LLC, Bethenny Frankel, SGC Global, LLC, and Beam Global Spirits & Wine, Inc. According to Langendorf, … Continue Reading
On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet supplements.” In addition to ordering a recall, the court also ordered the Hi-Tech defendants to disgorge not only their profits … Continue Reading
Cheez-Its Class Action Revived in “Whole” by Second Circuit
By Lawrence Weinstein and Jeff Warshafsky on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Eleventh Circuit Works Out Preclusion and Preemption Issues in Protein Powder Dispute
By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Labeling Claims, Lanham Act, Primary Jurisdiction/Preemption
District Court Filters Out Preempted “Spring Water” False Advertising Claim
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Update: Second Circuit Affirms Dismissal of Lanham Act Claims Based on Allegedly False UL Certification
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Diet Soda Lawsuit Fizzles Out
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Snack Bar Class Action is KIND-ly Stayed Pending USDA Regulation on Bioengineered Food
By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Class Actions, Primary Jurisdiction/Preemption, Regulatory
No More Baby Talk: Class Certification Denied in Gerber False Advertising Suit
By Lawrence Weinstein, Jeff Warshafsky and Evelyn Pang on Posted in Class Actions, Labeling Claims
Justice (and Lunch) is Served: Second Circuit Holds that Food Truck Branded with Ethnic Slurs is Entitled to First Amendment Protection
By Alexander Kaplan and Jeff Warshafsky on Posted in First Amendment
Court Says “Lights Out” on UL Certification Lanham Act Claim
By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Can Inflating Jury Verdicts and Settlements Injure More than Just Your Reputation? Kansas Law Firm Sues Competitor For False Advertising
By Lawrence Weinstein, Jeff Warshafsky and Sara Schlafstein on Posted in Lanham Act
Game Over: Supreme Court Denies Plaintiff’s Class Certification Appeal after Voluntary Dismissal in Xbox 360 Lawsuit
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in Class Actions
Michigan District Court Won’t Hear Lanham Act Claim Against Tinnitus Treatment Certifier
By Lawrence Weinstein, Jeff Warshafsky and Tiffany Woo on Posted in Lanham Act
Second Circuit Affirms Preliminary Injunction of “Identical” Gray Goods
By Brendan O'Rourke, Jeff Warshafsky and Russell Kostelak on Posted in Injunctions, Lanham Act
A Wrinkle in Time: Anti-Aging Advertising Claims Unsubstantiated by Testing Methods
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in NAD/NARB/CARU/ERSP
Parks’ Allegations Against “Finest” Franks Not In the “Ball Park” of False Advertising Claims
By Lawrence Weinstein, Jeff Warshafsky and Tiffany Woo on Posted in Lanham Act
Supreme Court: Class Action Plaintiffs Must Show ‘Concrete’ Harm to Satisfy Article III
By Lawrence Weinstein and Jeff Warshafsky on Posted in Class Actions
California Supreme Court Holds Organic Labeling Suit a Natural Fit in State Court
By Lawrence Weinstein, Jeff Warshafsky and Sarah Sullivan on Posted in Labeling Claims, Primary Jurisdiction/Preemption
Punch to the Gut: Government Denied Contempt Ruling in Bayer Probiotic Case
By Alexander Kaplan and Jeff Warshafsky on Posted in Regulatory
Sun-Blocked: California Court Dismisses Sunscreen Labeling Case
By Lawrence Weinstein, Benjamin Rattner and Jeff Warshafsky on Posted in Deceptive Trade Practices, Labeling Claims, Regulatory
In Consumer Class Actions, Discovery is not Insured
By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Daniel Werb on Posted in Class Actions, Typicality Requirement
Wasted Away in Margaritaville: With Unascertainable Class, District Court Denies Class Certification in Skinnygirl Margarita Case
By Joelle Milov and Jeff Warshafsky on Posted in Ascertainable Class, Class Actions, Deceptive Trade Practices, Labeling Claims
Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling
By Jeff Warshafsky and Jennifer Yang on Posted in Deceptive Trade Practices, Labeling Claims, Regulatory
