Proskauer on Advertising Law
Proskauer on Advertising Law
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Lawrence Weinstein

Partner and Co-Head, False Advertising & Trademark Practice

Larry Weinstein is a partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is a distinguished trial lawyer and counselor who concentrates on Lanham Act and consumer class action false advertising litigation, as well as NAD proceedings, trademark, trade secret and copyright litigation and sports, art and other complex commercial cases.

Larry’s clients include medical device and pharmaceutical companies and other owners and advertisers of the world’s most well-recognized brands, as well as sports governing bodies, teams and leagues, an environmental organization, hospitals and art collectors.

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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

Ninth Circuit Clarifies Standing Requirements for Damages Classes

In a decision that will have repercussions for consumer false advertising lawsuits, a Ninth Circuit panel recently ruled in a Fair Credit Reporting Act (“FCRA”) case that all class members must have standing at the trial stage of a class action for monetary damages. Ramirez v. TransUnion, LLC, 951 F.3d 1008 (9th Cir. 2020).… Continue Reading

Single Communication-Based False Advertising Claim Permitted to Proceed

A recent decision out of the District of Massachusetts serves as a reminder that a court may consider even a single communication by an advertiser made directly to a consumer to be advertising under the Lanham Act, particularly where the advertiser competes in a limited market. Allscripts Healthcare v. DR/Decision Res., No. CV 19-11038-NMG, 2020 … 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

Gin Manufacturer Bacardi Avoids Lawsuit for Its Use of “Grains of Paradise”

A federal judge in the Southern District of Florida recently dismissed an action alleging that Bacardi’s use of a botanical called “grains of paradise” in its gin was “harmful and illegal,” holding that the statute on which the lawsuit was based was preempted by federal law. Marrache v. Bacardi U.S.A, 19-cv-23856 (S.D. Fla. Jan. 28, … Continue Reading

Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”

The Ninth Circuit recently affirmed the dismissal of a putative class action alleging that defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) violated various California consumer fraud laws by using the term “diet” in naming and marketing Diet Dr Pepper. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). Plaintiff alleged that this … 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

Hershey Kisses Chocolate Mislabeling Suit Goodbye

A California federal judge recently handed a victory to the Hershey Co. in a suit alleging the company falsely represented that its Brookside chocolate products have no artificial flavors. Clark v. Hershey Co., 18-cv-06113 (N.D. Cal. Nov. 15, 2019). U.S. District Judge William Alsup granted summary judgment in favor of Hershey on the basis of … Continue Reading

Seventh Circuit Remands after District Judge Makes Injunction Stickier in Light Beer Corn Syrup Dispute

The Seventh Circuit has remanded a lawsuit concerning beer advertising to the district court for failure to follow required procedures in issuing a preliminary injunction – the latest development in the case’s torturous procedural history. On May 24, 2019, Judge William Conley of the Western District of Wisconsin issued a preliminary injunction banning Anheuser-Busch from … 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

District Court Judge Finds that Herbal Extract Manufacturer Fails to Capture the Essence of a Lanham Act Claim

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, Judge Katharine Hayden of the District of New Jersey held last month that an herbal extract manufacturer allegedly misled by its supplier into purchasing diluted saw palmetto extract lacked standing to bring a Lanham Act false advertising claim. Jiaherb, Inc. v. MTC … Continue Reading

Food for Thought: Outcomes of Food Labeling Cases Prove Difficult to Predict

As we wrote recently, the past year has seen a proliferation of lawsuits alleging that food product labels mislead consumers about the product’s ingredients. The trend continued last month, with decisions from the Court of Appeals for the First Circuit and one of its district courts reaching different results on motions to dismiss complaints alleging … 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

Court Lets Trader Joe’s Out of Sticky Situation Over Honey Advertising

A magistrate judge in the Northern District of California recently dismissed a putative class action alleging that Trader Joe’s misled its consumers about the purity of its manuka honey.  Moore v. Trader Joe’s Co., No. 4:18-CV-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019). Plaintiffs commenced a putative class action lawsuit alleging that Trader Joe’s … Continue Reading

En Banc Ninth Circuit Reinstates and Clarifies Standard for Nationwide Class Action Settlement

Last month, the Ninth Circuit sitting en banc affirmed, by an 8–3 vote, a nationwide class settlement of a multidistrict litigation against automakers Kia and Hyundai over alleged misrepresentations regarding certain vehicles’ fuel efficiency. In re Hyundai and Kia Fuel Economy Litigation, 15-56014 (9th Cir. 2019). The en banc decision overturned the controversial decision last … 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

NAD Not Influenced by Verification Platform’s Claims

In a recent decision, the advertising industry self-regulatory body NAD recommended that influencer marketing firm Ahalogy tone down some of its claims about the capabilities of its new product, the Tri-Verified influencer marketing platform. The decision comes at a time when influencer marketing is becoming an increasingly popular— and challenging—field. Influencer marketing is what the … Continue Reading

Supreme Court Limits Removal of Class-Action Counterclaims

On May 28, the Supreme Court decided Home Depot U.S.A. v. Jackson, 17-1471 (2019), ruling 5–4 that third-party counterclaim defendants may not remove class actions from state to federal court. The decision, besides keeping in state court certain class actions that otherwise could be removed to federal court, is noteworthy for the highly unusual composition … Continue Reading

Chambers Pharmaceutical Advertising 2019: USA

Proskauer partners Lawrence Weinstein and Alexander Kaplan wrote the book – 11 chapters of it – on U.S pharmaceutical advertising law. The 2019 Chambers Global Practice Guide: Pharmaceutical Advertising is a great, curated resource for drug companies, hospitals, medical practices and other U.S. health care organizations. The guide provides insight to topics such as: FDA and … Continue Reading
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