Federal and state laws protect consumers—and sometimes competitors—from deceptive and unfair trade practices. At the federal level, the Federal Trade Commission is empowered by a broad statute, Section 5 of the FTC Act, to prohibit such practices. But there are a host of other federal and state laws that regulate trade practices that are enforced not only by the FTC and other federal agencies but also by state attorneys general and private plaintiffs. The FTC’s Bureau of Consumer Protection, for example, enforces over 40 such laws that address everything from advertising and debt collection to product labeling and privacy.
Thompson Hine represents clients dealing with all facets of the FTC’s Bureau of Consumer Protection and concomitant state enforcers, including investigations and litigation, counseling on advertising, particularly over the Internet, rulemakings, policy studies and reports, 6(b) industry-wide investigations, negotiating consent decrees and legislative efforts. Our lawyers have substantive skill to handle a wide range of advertising and marketing issues, including substantiation reviews, “green” claims, comparative advertising, endorsements and testimonials, pricing claims, and “Made in USA” assertions. We advise clients on investigations of telemarketing and telefunding efforts (including TCPA claims), advertising practices, the evolving regulation of the collection and use of personal information, deceptive health and food advertising, shelf allocation, rebate and pricing practices in the retailing industry, financial regulation and credit reporting, and the recent legislative activity regarding privacy.
We also are experienced in defending clients in FTC or state attorneys general investigations and enforcement actions and protect their interests in litigation under state consumer protection statutes and the Lanham Act. In addition, we bring and defend Lanham Act cases and National Advertising Division (NAD) arbitrations, as well as defend our clients in consumer class action litigation. We represent firms in copyright infringement litigation, both as plaintiffs and defendants, and in trade secret misappropriation litigation. We assist firms in developing strategies for protection of confidential business information and trade secrets, including drafting state-specific noncompetition covenants.
Listed below are representative antitrust matters in which our partners have participated.
- Representing three related movie companies and their principal in potentially precedent-setting telemarketing FTC/DoJ litigation involving an attack on charitable fundraising activities with claims brought against the Federal Trade Commission. Corporation for Character v. United States, 2:11-CV-00419 (D. Utah).
- Defending a trade association's public-service advertising campaign in an FTC investigation, with resolution through a consent decree.
- Negotiating a precedent-setting consent decree with the FTC on behalf of a data aggregation company in a data breach matter that threatened the company’s entire business model.
- Defending an international entertainment and media corporation in FTC investigation of the marketing and advertising for online services related to a branded telephone.
- Representing a consumer products distributor and direct marketing telemarketer in FTC and state investigations and private litigation.
- Representing a pharmaceutical company in an FTC of health related claims for a functional food product; matter settled through consent decree.
- Representing an intentional consumer products manufacturer in a multi-jurisdictional investigation of the advertising and marketing of LCD television set characteristics; matter settled with nominal changes to industry business practices.
- Defending an ecommerce website company in an FTC practice of multi-level marketing business practices; matter settled through consent decree.
- Represents businesses and other enterprises in investigating, preventing, mitigating and remediating serious data breach incidents and in defending resulting FTC investigations and enforcement actions or private litigation.
- Represents a publicly held national retailer in internet branding and domain name strategies and disputes.
- Representing a major national restaurant chain in an industry-wide study of advertising practices related to children undertaken by the Federal Trade Commission pursuant to Section 6(b) of the FTC Act.
- Represents major financial institutions in internet branding strategies and strategic alliances.
- Advising and representing companies bringing or subject to complaints about competitor advertising brought before the National Advertising Divisions of the BBB.
- Represented Pro Mold & Tool Co. in successful patent and unfair competition litigation in the sports memorabilia collectables market.
- Represents the largest national distributor of firearms in Computer Fraud and Abuse Act, trade secret and unfair competition litigation.
- Represented a leading food processing machinery supplier in patent and false advertising cases.
- Successfully defended a preliminary injunction motion on behalf of a defendant in Lanham Act false advertising litigation filed in New Jersey federal court. Decision affirmed on appeal to the Third Circuit.
- Defended a manufacturer of golf grips in a patent infringement lawsuit brought in California that included counterclaims for false advertising.
- Counseling clients and drafting of agreements for the transfer of intellectual property, protection of trade secrets, and the drafting and execution of nondisclosure agreements.
- Representing a manufacturer of furnace and air conditioning filters in enforcement action by Federal Trade Commission charging deceptive advertising about health benefits in violation of § 5(a) of FTC Act, In the matter of Filtration Manufacturing, Inc.,123 F.T.C. 23 (1997).
- Representing a manufacturer of heating and air conditioning control equipment in action against competitor for false representations about environmental control equipment for commercial buildings in violation of § 43(a) of the Lanham Act, Honeywell Inc. v. Control Solutions, Inc.,33 U.S.P.Q. 2d 2017 (N.D. Ohio 1994).
- Representing a manufacturer of food equipment in action against competitor for false representations about performance of commercial bakery equipment in violation of § 43(a) of the Lanham Act, Hobart Corp. v. Welbilt Corp.,1989 U.S. Dist. LEXIS 14447 (N.D. Ohio 1989).
- Representing a restaurant franchisee in action by competitor alleging false advertising under § 43(a) of Lanham Act, Frisch’s Restaurants, Inc. v. Elby’s Big Boy,670 F.2d 642 (6th Cir.), denied, 459 U.S. 916 (1982).
- Review of comparative and other advertising claims and materials, and advising clients with respect to deceptive trade practices and Lanham Act allegations and claims.
- Counseling regarding successful operation of operation of promotions, sweepstakes and contests on social media platforms, including Facebook, Twitter, Instagram, Tumblr and Pinterest and compliance with terms and conditions of those platforms.
Is Your Native Advertisement or Sponsored Content Deceptive? - Consumer Protection & Trade Regulation Update
January 14, 2016