INTELLECTUAL PROPERTY LITIGATION: ADVERTISING & MARKETING
- We represented Harpo Inc., the owner of the Oprah family of trademarks, and Dr. Mehmet Oz, who hosts the Dr. Oz television show, in the prosecution of an action for false endorsement, trademark infringement and violation of the right of publicity, among other claims, against numerous internet marketers of dietary supplements and other products that used Oprah Winfrey’s and Dr. Oz’s names and likenesses without their consent.
- We represented Anheuser-Busch and its advertising agency, Mother, in a right of publicity action brought by a 1970s supermodel, Evelyn Kuhn, who asserts that she did not consent to the use of her image in a photograph Mother licensed from Corbis, a stock photography company, even though the photographer provided Corbis with a model release.
- We represented the advertising agency BBDO Worldwide in a lawsuit brought by Levon Helm, a former member of the rock group called “The Band.” We obtained summary judgment dismissing Helm’s claim that the use of his vocal performance on “The Weight,” The Band’s signature song, in a television commercial violated his statutory right of privacy.
- We represented E*TRADE and Grey Advertising in a lawsuit brought by Lindsay Lohan, the actress and singer, who asserted that a commercial that E*TRADE debuted during the 2010 Super Bowl infringed her right of publicity.
- We defended Tagged, Inc., the operator of a social networking website, and a number of its officers and employees against a lawsuit related to an email membership campaign. Several senders and recipients of invitation emails to join Tagged.com argued that the emails resulted in false advertising and similar violations of California law.
- We represented AllStar Marketing Group, LLC in a putative consumer class action alleging deceptive practices in violation of the consumer protection laws of six states by AllStar’s use of the terms “Buy One, Get One Free” in its marketing of a women’s apparel accessory.
- We defended an online media company in consumer class actions and related federal and state government enforcement proceedings alleging deceptive practices in connection with the distribution of the company’s software that delivers pop-up advertisements.
- We have represented various companies that market consumer products through continuity programs in class actions alleging that they send and charge consumers for products that they have not ordered.
INTELLECTUAL PROPERTY LITIGATION: TRADEMARK, COPYRIGHT & OTHER DISPUTES
- We defended a trademark infringement action brought against American Express in connection with its MY LIFE. MY CARD. advertising campaign, obtaining summary judgment in American Express’ favor.
- We represented Mars and its advertising agency, BBDO Worldwide, in a trademark infringement, false designation of origin and dilution action in connection with a Halloween commercial for M&M’s. Zorro Productions, the owner of the “Zorro” trademark, claimed that an image of a child wearing a masked crusader costume infringed its trademark and trade dress.
- We represented Levi Strauss in a copyright infringement action in which the plaintiff, a photographer, asserts that a number of images contained in Levi’s print and television advertisements infringe her copyrights in various photographs. We successfully moved to dismiss the complaint on the ground that the allegedly infringing images are not substantially similar to her photographs as a matter of law.
- We represented a major consumer electronics company in a copyright infringement and right of publicity action in which the plaintiff asserted that they were liable for a third-party software developer’s allegedly unauthorized use of her photograph as the icon for one of its apps.
- We represented American Express in a copyright infringement action in which photographer Louis Psihoyos alleged that American Express used one of his photographs in its marketing materials without authorization.
- We represented BBDO Worldwide, an advertising agency, and PHD Media, a media buying and planning firm, in an idea misappropriation lawsuit alleging that TMR Multimedia’s ideas were wrongfully incorporated into the “Ram Challenge,” a web-based reality competition showcasing the Dodge Ram.
- We defended Coty, Inc., one of the world’s largest perfume manufacturers, and its advertising agency, Laird & Partners, in an action for copyright and trademark infringement and false advertising in connection with an advertising campaign for Vera Wang Princess perfume.
- We represented the plaintiffs in a high-profile copyright-infringement lawsuit in which two screenwriters alleged that the hit movie Dodgeball: A True Underdog Story infringed the copyright in their screenplay Dodgeball: The Movie.
- We represented Vevo LLC, the world’s leading all-premium music video and entertainment platform, against patent infringement claims relating to a patent that allegedly covered the use of advertisements in connection with the playing of audio or visual data on the internet.
POST-EMPLOYMENT RESTRICTIONS ON COMPETITION
- We successfully defended a global packaging and labeling company and its new employee against an injunction sought by the employee’s former employer. We conducted extensive expedited discovery and depositions and presented our case at an evidentiary hearing, convincing the court that the plaintiff’s restrictive covenants did not bar the employee – a former United States-based sales executive – from taking an operations position at our client’s facility in Hong Kong.
- We represented a global healthcare software company in an AAA arbitration against another software company regarding a covenant not to compete contained in a business partner agreement between the two companies. We defeated the plaintiff’s attempt to obtain an injunction that would have forced our client to shut down a component of its software based on the covenant, and then defeated the plaintiff’s motion to vacate or modify the arbitration award in federal court.
- We represented a marketing services firm in a matter against a former employee who was providing services to clients of her former employer after she resigned in violation of her restrictive covenant. The court granted our client’s request for an injunction against the defendant, and referred the matter of the defendant’s perjury to the District Attorney’s office.
- We obtained a temporary restraining order and a preliminary injunction against an employee of one of our clients who was soliciting clients and employees to join a competing venture while he was still employed by our client.
- We brought suit on behalf of our client, the world’s largest limousine company, to enforce post-employment restrictive covenants against six key employees who formed a competing company. We moved for a temporary restraining order, stabilized our client’s business from unfair competition and successfully obtained standstill agreements in which defendants agreed not to solicit or service the limousine company’s clients or employees for a 15-month period.
- We obtained injunctions barring individuals from soliciting their former employer’s clients and employees and using the employer’s confidential information on behalf of software companies servicing the pharmaceutical and healthcare industries.
- We counseled a leading brokerage house in connection with the hiring of three dozen executives from one of the largest banks in the world. No suits were filed even though the employees had restrictive covenants in their contracts and in the bank’s employee manual.
- We counseled a new financial advisory firm on the Protocol for Broker Recruiting, an agreement among various financial institutions regarding how brokers may resign from one firm, join a competing firm and solicit customers from the prior firm without liability. We facilitated our client becoming members of the Protocol and then successfully used the Protocol to defeat a lawsuit brought against brokers who our client had hired from another firm that was a party to the Protocol.
- We represented a group of financial advisors who sought to resign immediately from a major investment bank and start a competing business despite their garden leave and restrictive covenant agreements with their current employer. We developed a strategy for combating these restrictions and counseled the financial advisors on how to resign and immediately start their competing business without a lawsuit.
- We have represented a leading global alternative asset management with regard to labor and employment disputes and restrictive covenant litigation for the past five years.
- We defended a media and communications recruitment agency against a former commissioned employee who claimed business costs were improperly deducted from her earnings. This case made new law. The New York Court of Appeals decided for the first time that under New York law it is legal to have commission employees on a formula by which they are incentivized to reduce costs and increase sales.
- We represented a large Manhattan restaurant in an action brought by seven of its employees involving overtime and minimum wage claims.
- We represented a major media buying agency in an employment discrimination lawsuit brought by a senior executive who remained with the agency after filing suit. Because the executive’s work performance deteriorated and the executive began characterizing routine business issues as retaliation, we litigated the case and concurrently counseled the agency on day-to-day performance issues to ensure that there was appropriate support for the agency’s eventual decision to terminate the executive’s employment. We obtained summary judgment dismissing all discrimination and retaliation claims relating to the executive’s termination.
- We represented a Dutch public broadcasting organization and its Editor-in-Chief against allegations that they violated federal, New York State and New York City disability anti-discrimination laws by transferring the plaintiff, a disabled Dutch reporter, back to the Netherlands upon expiration of his temporary reporting assignment in New York City.
- We defended a recruitment advertising agency against claims filed by a former employee with the Equal Employment Opportunity Commission and New York State Division of Human Rights alleging that the employee was subjected to sexual harassment during employment.
- We obtained a New York state court jury verdict for our advertising agency client in a discrimination action brought by an executive whose employment was terminated as a cost-saving measure.
- We obtained a New York state court jury verdict rejecting a gender discrimination claim brought by a former senior executive.
- We obtained a Chicago federal court jury verdict rejecting an age discrimination claim brought by a former senior executive.
FINANCIAL SERVICES INDUSTRY: EMPLOYMENT DISPUTES
- We represented a major financial institution in a whistleblower suit regarding whether a section of the Dodd Frank Act invalidating mandatory arbitration of Sarbanes-Oxley claims can be applied retroactively. We successfully compelled arbitration of the plaintiff’s claim in a ruling that was affirmed by the U.S. Court of Appeals for the Second Circuit.
- We defended an investment bank in the successful dismissal of a $20 million claim by two former employees who had alleged that the bank breached oral employment agreements that would have entitled them to future income from the business on which they had worked.
- We represented an investment bank and securities firm in a FINRA arbitration regarding the alleged breach of a fixed-term employment contract.
- We represented an investment bank’s leveraged buyout division in a FINRA arbitration regarding the firing of two senior executives with multimillion dollar guaranteed bonuses for having their lawyer write a letter to the company’s chairman. The investment bank asserted that the writing of the letter was cause - insubordination - and the FINRA panel agreed and the executives did not receive their guaranteed bonuses.
- We defended an investment bank against an employee’s claims concerning a long-term disability insurance policy. The case against the bank was dismissed on summary judgment while the case against the co-defendant went to trial.
- We represented an investment bank against claims by an executive who sued for race, national origin and disability discrimination, retaliation and violation of the FMLA. We successfully moved for summary judgment and obtained an affirmance by the Second Circuit despite an amicus brief by the EEOC.
- We defended several senior investment bankers in an action brought by a major financial institution against the bankers and CreditSuisse/First Boston alleging breach of fiduciary duties arising from the en masse departure and CSFB’s en masse hiring of more than 40 employees from a competitive investment bank.
FINANCIAL SERVICES INDUSTRY: COMMERCIAL LITIGATION
- We are representing a global financial services institution in a $35 million FINRA arbitration proceeding brought by an investor asserting claims for alleged unauthorized securities trading.
- We represented an investment bank against an action by a commercial bank seeking a temporary restraining order and preliminary injunction in connection with the optional termination of a $12 million securities repurchase agreement.
- We defended a commercial bank against allegations that it violated a temporary restraining order by releasing funds held in an account of an alleged corporate alter-ego of a judgment debtor.
- We represented an asset management firm and its chief executive in defeating, on summary judgment, a consultant’s claim for a finder’s fee for services allegedly provided to the firm.
- We are representing a global investment bank in a nationwide antitrust class action brought against several major financial institutions by municipalities who issued tax-exempt bonds alleging that defendants conspired to rig bids for municipal bond investment vehicles.
- We won a motion to dismiss on behalf of a global financial services institution in connection with a lender’s claim for aiding and abetting fraud regarding a $180 million syndicated credit facility in which our client acted as administrative agent.
- We represented a buyer of mortgage loans in matters involving competing claim of ownership by repledgee of the purchased loans and intervening bankruptcy of the recipient of purchase price proceeds.
- We represented a major mortgage loan diligence provider in investigations by New York and Massachusetts Attorneys General regarding our client’s participation in the securitization of residential mortgage loans.
- We represented a global investment bank as the seller in structured finance transactions in disputes with investors and servicers alleging breach of representation, warranties and covenants under pooling and servicing agreements.
COMPLEX COMMERCIAL LITIGATION
- We represented the world’s largest marketing communications conglomerate in federal securities and shareholder derivative actions brought against the founders and venture capitalist insiders of a start-up media company, concerning the alleged improper diversion of $54 million of investment capital.
- We defended a publishing conglomerate in several actions brought by multiple individuals who invested in real estate branded with the publishing conglomerate’s trademark. The investors alleged that their investments were procured through fraud, unfair competition and false advertising, among other claims.
- We defended a case charging RICO violations based upon alleged mail fraud and money laundering. Our vigorous defense of the case demonstrated in depositions that the plaintiff could be subject to sanctions for filing a frivolous case, and ultimately caused plaintiff to voluntarily dismiss the case.
- We defended and then obtained a favorable settlement for a major healthcare service provider in the Caritas bankruptcy, preventing our client from having to return over $350,000 claimed to be a “preferential transfer” under the Bankruptcy Code.
- We defended and obtained a favorable settlement for a major advertising agency in the Erickson Retirement Communities bankruptcy, preventing our client from having to return over $3.2 million claimed to be “preferential transfers” and “fraudulent conveyances” under the Bankruptcy Code.
- We obtained summary judgment in favor of our client, a women’s professional sports organization, in a contract dispute with its exclusive worldwide licensing agent.
- We represented a women’s professional sports organization in successfully negotiating a resolution of a breach of contract claim involving a golf tournament that was to be held in China.
- We obtained a $4 million jury verdict on behalf of a law firm against one of its former clients in a fee dispute.
- We represented an inventor of a computerized stock selection model against a claim that his invention was unlawfully derivative of the proprietary model owned by his former employer. In doing so, we also established that our client’s model was a trade secret, and that he was entitled to lost profits under a joint venture agreement, making new law in the area of trade secrets and lost profits.
- We obtained summary judgment for an advertising and marketing services company in an action to collect a substantial fee from a digital entertainment company for the development of new gaming software.
- We obtained a successful arbitration award on behalf of the purchaser of a company in a dispute concerning earn-out payments allegedly due to the seller.
- We represented the manufacturer of faux antique furniture in an action filed by a retailer claiming that our client engaged in a conspiracy with another vendor in violation of antitrust laws.
- We defended a point of purchase agency in a case alleging a commercial bid rigging scheme and secured an award of attorneys’ fees and the dismissal of a $48 million civil antitrust suit.
GOVERNMENTAL AND REGULATORY PROCEEDINGS
- We persuaded the FTC to recommend no enforcement against our client, an advertising agency and its client, an automobile manufacturer, following the FTC’s investigation into blogging activity that occurred in connection with the automobile manufacturer’s Super Bowl advertisement.
- We represented a marketer of dietary supplements in an FTC action alleging unsubstantiated weight loss performance claims in advertising a weight loss product.
- We negotiated a settlement on behalf of a special event production company in an FTC action alleging unsubstantiated product claims in advertising, unauthorized credit card charges, and violations of the FTC Mail Order Rule.
- We handled an FTC investigation alleging unsubstantiated superiority performance claims in advertising for an OTC analgesic product on behalf of Jordan McGrath and its client, Novartis.
- We defended helmet manufacturer Cascade Sports in an advertising challenge brought by Bauer Hockey, Inc. before the NAD concerning safety, performance and celebrity endorsement claims.
- We represented a manufacturer of veterinary pharmaceutical products against a competitor’s challenge before the NAD concerning certain advertising claims regarding the efficacy of certain products. We also represented the company in connection with an appeal to the NARB following the NAD decision.
- We participated in the negotiated settlement among 32 state attorneys general and three of the nation’s largest wireless telephone carriers. The settlement addressed consumer complaints about wireless service and involved such matters as the clarity of the claims made in advertising materials and the conspicuousness of disclosures in promotional materials and consumer contracts.
- The FTC and a group of approximately 18 states commenced a non-public investigation of automobile lease advertising practices by various automobile manufacturers and importers. We spearheaded the efforts to resolve the matter on behalf of one of the automotive companies under investigation.
- We defended the owner of a Manhattan building both at trial and on appeal from a series of lawsuits by tenants alleging overpayment of rent based on the rent escalation provisions in various leases.
- We successfully defended at trial one of the country’s largest REITs in a real estate brokerage commission dispute.
- We obtained a Yellowstone injunction preventing a landlord from terminating our client’s lease in one of Manhattan’s largest telecommunications buildings.
- We represented a building owner and managing agent in various negligence suits resulting from a fire in a New York office building. Our clients did not have to contribute any money to the settlement. We also successfully represented the owner and its insurance company in their separate actions to recover damages caused by the fire.
- We represented both landlords and tenants in disputes concerning the determination of fair market rent.