Proskauer on Advertising Law
Proskauer on Advertising Law
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Lee Popkin

Partner

Lee Popkin is a trial lawyer in Proskauer’s Commercial Litigation, Product Liability, and Intellectual Property groups. Lee represents clients in a wide range of industries in high-stakes trials in state and federal courts throughout the country. Lee’s experience includes developing case themes, preparing key witnesses for deposition and trial, taking and defending expert depositions, and drafting and arguing case-dispositive motions.

Lee was recently named to the Best Lawyers in America inaugural “Ones to Watch” list.

Lee’s notable representations and victories include:

  • Universal Standard Inc. v. Target. Counsel to Target in successful defense of Lanham Act trademark infringement action related to its Universal Thread clothing line.
  • Echeverria v. Johnson & Johnson. Trial counsel to Johnson & Johnson in a widely publicized product liability trial relating to the company’s talc-based products and their alleged link to ovarian cancer. After trial, the court entered judgment notwithstanding the jury verdict for the J&J defendants, and, in the alternative, granted J&J’s motion for a new trial.
  • Bed Bath & Beyond Inc. v. 1-800-Flowers.com, Inc. Successfully represented Bed, Bath & Beyond in action to enforce agreement by 1‑800-Flowers to purchase PersonalizationMall.com.
  • Global Holdings v. Church & Dwight, Co., Inc. Secured dismissal of state and federal dilution claims in Lanham Act action regarding a consumer product. The court’s decision made new law in the Second Circuit on the issue of whether a valid registration preempts state law claims of dilution.  Daniels v. Johnson & Johnson. Trial counsel to J&J in product liability trial related to the company’s talc-based products in St. Louis. The jury returned a complete defense verdict on all claims and awarded zero damages.
  • Daniels v. Johnson & Johnson. Trial counsel to J&J in product liability trial related to the company’s talc-based products in St. Louis. The jury returned a complete defense verdict on all claims and awarded zero damages.Daniels v. Johnson & Johnson. Trial counsel to J&J in product liability trial related to the company’s talc-based products in St. Louis. The jury returned a complete defense verdict on all claims and awarded zero damages.
  • Allied Lomar, Inc. v. Diageo North America, Inc. Counsel to Diageo in successful defense of Lanham Act trademark infringement action concerning Blade & Bow Whiskies and the Stitzel-Weller Distillery.
  • Diageo North America, Inc. v. Mexcor. Trial counsel to plaintiff Diageo in a Lanham Act trade dress infringement and dilution action against competitor involving Crown Royal whisky. Obtained a jury verdict and permanent injunction in favor of our client following a two‑week trial.

In addition to her active practice, Lee regularly contributes to the Firm’s false advertising blog, Watch This Space: Proskauer on Advertising Law. Lee also devotes significant time to pro bono matters, and was recognized by KIND for her work representing two sisters from El Salvador fleeing gang violence.

Before joining Proskauer, Lee served as law clerk to the Honorable Sarah S. Vance of the United States District Court for the Eastern District of Louisiana. She received her J.D. cum laude from Harvard Law School.

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Sixth Circuit Says T-bone Steaks and Salmon Filets on Pet Food Packaging Not Misleading

Last month, the Sixth Circuit held that photographs of “premium cuts” of meat on pet food packaging were not enough to mislead a reasonable consumer into believing that the kibble was made from these high-end ingredients.  Wysong v. APN, 889 F.3d 267 (6th Cir. 2018). In 2016, Wysong Corporation, a pet-food manufacturer, sued six other … Continue Reading

New York Federal Court Latest to Dismiss Outlet Pricing Class Action

Last month, Judge Valerie Caproni of the Southern District of New York dismissed with prejudice a putative deceptive pricing class action filed against Burberry.  This is the first decision within the Second Circuit to determine whether shoppers claiming to have been victimized by discount price advertising in outlet stores have suffered actual injury for purposes … Continue Reading

Fourth Circuit Tells District Court Not to Abstain in False Ad Holy War

At the heart of this unique Lanham Act case is a dispute between the Episcopal Church (the “Church”) and one of its “disaffiliated” districts, the Diocese of South Carolina (“Diocese”).  In 2012, led by its Bishop Mark Lawrence, the Diocese withdrew from the Church, but the Church did not recognize the withdrawal, and appointed Bishop … Continue Reading

IntenseX False Advertising Claims Lack Power and Performance

Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that defendant PharmaCare falsely advertised its nutritional supplement, IntenseX, as an aphrodisiac that “would improve. . .sexual power and performance.” … Continue Reading

Not Sweet Enough: Ninth Circuit Tosses Claims Over Fresh Sugar Lip Balm Labeling and Packaging

Plaintiff Angela Ebner filed a putative class action against Fresh, Inc. alleging that the label, design and packaging of its Sugar lip balms deceived consumers about the amount of available product. In a published panel decision, the Ninth Circuit affirmed the district court’s ruling dismissing the plaintiff’s complaint in its entirety. Sugar lip balm, which … 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

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

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

Court’s Maine Message to Plaintiff Suing Poland Spring: You Don’t Have a Leg to Stand on

The District Court of Maine recently provided a reminder that – even in the post-Lexmark world of Lanham Act false advertising standing – Article III standing requirements can still impose a meaningful barrier on plaintiffs. On March 18, 2015, District of Maine Judge George Z. Singal dismissed Maine Springs, LLC’s complaint against Nestle Waters North … Continue Reading

Lawful Waffle: California Courts Dismiss “Natural” Food False Ad Claims

Two California courts have recently dismissed false advertising claims concerning the marketing of food products as “natural,”  marking a departure from the trend in consumer class actions in that state.  In Richards et al. v. Safeway, Inc., 13-cv-04317, the plaintiff alleged that Safeway falsely labeled its Open Nature 100% Natural Multi-Grain Waffles and Open Nature … Continue Reading

L’Oréal Smooths Things Over With FTC, Reaches Proposed Settlement Regarding Anti-Aging Claims For Its Skin Care Products

On June 30, the Federal Trade Commission announced that it had reached a proposed settlement with L’Oréal USA, Inc. related to the Commission’s investigation of anti-aging claims made in advertisements for Lancôme Génifique and L’Oréal Paris Youth Code products. In its complaint, the FTC asserted that L’Oréal falsely represented that the products in these two … Continue Reading

Courts In 9th Circuit Continue To Split On Ascertainability: “All Natural” Class Action Dies On the Vine But Sexual Energy Supplement Suit Has Staying Power

On June 13, 2014, U.S. District Judge Charles R. Breyer of the Northern District of California, issued an order denying class certification to a putative class of consumers who had purchased ConAgra food products labeled as “natural,” finding that the putative class was unascertainable due to the lack of purchase records or any other reliable … Continue Reading
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