As The New York Times recently noted, in this ice-cold economy, false advertising litigation is hot. Most of these cases live or die on preliminary injunction motions, with plaintiffs often giving up if they can’t persuade a judge to order a competitor to take down the offending ads. (See, for example, AT&T’s decision Wednesday to throw in the towel in its suit over Verizon’s “There’s a Map for That” campaign.)
But once in a while there’s actually a false advertising trial. Earlier this year, PBM Products, which makes store-brand baby formula, failed to enjoin ads that claimed Mead Johnson’s more expensive formula provides babies with unique developmental benefits. PBM didn’t drop the case, though. It switched counsel — from Locke Lord Bissell & Liddell to Kramer Levin Naftalis & Frankel — and pressed on to an eight-day day jury trial in the Eastern District of Virginia.
Last month the “rocket docket” jury awarded PBM $13.5 million in damages. And on Tuesday, Chief Judge James Spencer gave PBM the injunction it wanted, barring Mead from advertising claims that parents put their babies’ health at risk if they used any formula other than its Enfamil brand. The judge also directed Mead to retrieve already-published ads containing those claims.
The Kramer Levin trial team was led by Harold Weinberger and Jonathan Wagner. The firm, which is involved in more than its fair share of Lanham Act cases (as we’ve previously reported), says the $13.5 million verdict is one of the largest-ever of its kind.
The ads in dispute, which claimed that only Enfamil’s mix of ingredients provided visual and mental benefits to infants, appeared on approximately 1.6 million mailers directed at parents. (Here’s an example.) “The ads were quite powerful,” said Wagner.
But at trial, Wagner said, PBM’s Kramer team was able to prove that PBM store-brand formula has the same nutritional values as Enfamil.
Behnam Dayanim of Paul, Hastings, Janofsky & Walker, who represented Mead at trial, told us that the company disagreed with the jury’s decision on liability but was grateful jurors awarded PBM far less than the $60 million it sought. “We’re evaluating our options,” Dayanim said.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.