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Harold Weinberger can’t fill a cavity or replace a broken cap. But in the battle to prevent tooth decay, he’s definitely done his part. Thanks to Weinberger, a partner at Kramer Levin Naftalis & Frankel, Listerine was recently forced to yank an ad campaign that put its mouthwash on par with dental floss in fighting plaque and gingivitis. If the ads left any doubts about the absolute superiority of flossing, Weinberger has set the record straight. “My periodontist was happy,” says Weinberger, who heads the New York-based Kramer Levin’s false advertising group. “It makes his life more difficult if people think they don’t have to floss.” Weinberger’s client, McNeil-PPC, the Johnson & Johnson subsidiary that sells Reach dental floss, was happy, too. Not only did Pfizer Inc., which makes Listerine, have to pull its ads, the company was forced to dispatch squads of contractors to stores to sticker over Listerine bottles bearing the claim, “clinically proven as effective as floss.” The Listerine decision, which came in January, was just the latest big win for Weinberger. In the past year, he’s posted a 4-0 court record on behalf of the manufacturers of some of the most heavily advertised consumer brands in the United States. Last summer, Weinberger helped Procter & Gamble Co., maker of Crest Whitestrips, beat back a false advertising claim brought by archrival Colgate-Palmolive Co. In the fall he fended off a preliminary injunction seeking to stop AstraZeneca PLC from running its “Better Is Better” ad campaign on behalf of the acid reflux drug Nexium. And he secured a court order forcing CIBA Vision Corp. to amend ads about Johnson & Johnson’s Acuvue contact lenses. When it comes to false advertising cases, Weinberger, 58, is about as seasoned as they come. His first case — defending ads for Wondra, a Procter & Gamble skin lotion against Vaseline Intensive Care — dates back to 1984 and was one of the first big waves of high-profile false advertising claims to make their way into federal court. Before then, few companies had been so bold as to directly name — or knock — competitors in ad campaigns. That changed in the late 1970s and early 1980s. More advertisers began claiming that their goods were superior to their rivals’ products. The companies named in those ads responded by suing. By 1989, when Congress added a beefed-up clause to the Lanham Act explicitly prohibiting false advertising about a competitor (as well as about a company’s own products), the courts were fielding an even bigger batch of false advertising claims. In the years since, Weinberger contends that the ad wars have only gotten more ferocious. Not only has there been a huge push to aggressively market over-the-counter drugs and other consumer products, but since 1997, when the Food and Drug Administration began letting drugmakers target consumers directly, those companies have poured at least $15.2 billion into ad campaigns for prescription pharmaceuticals, according to the Kaiser Family Foundation. “It’s just a more competitive environment,” says Weinberger, who notes that advertisers have also become bolder in their attacks on rival products. “A lot of companies have felt they had to be more aggressive.” That in turn has enabled a handful of New York firms — Patterson, Belknap, Webb & Tyler; Skadden, Arps, Slate, Meagher and Flom; and Proskauer Rose — to build up niche false advertising groups within larger IP practices. Kramer Levin’s group now has a total of nine lawyers (including three partners), who have been working at a fast clip. “We’ve had more activity in the past year than ever before,” says Weinberger. Compared to a dry, highly technical patent case, false advertising work scores relatively high on the glamour meter. Cases typically involve widely recognized products and generate more than their share of press. Actually proving (or disproving) a false advertising claim in court is another story. The vast majority of cases turn on the soundness of the research and testing that companies are required to do before they can make a particular claim. False advertising lawyers must immerse themselves in the gory details of surveys and statistical probability and test designs, in addition to mastering all manner of minutiae about how things like floor cleaners or skin lotion or dental hygiene products actually work. Before the Crest Whitestrips trial last June, Kramer Levin partner Jonathan Wagner recalls that he and Weinberger had to take a crash course on the science of measuring and quantifying variations in color in order to defend Procter & Gamble’s claim that Crest Whitestrips actually did whiten teeth five times better than Colgate’s product. “We looked at probably hundreds and hundreds of pictures of teeth,” says Wagner. Speed is also essential in false advertising matters. As Kathryn Meisel, an assistant general counsel at Johnson & Johnson, notes, her company can’t afford to wait while a competitor pumps millions of dollars into a false ad campaign. “It’s very hard to get consumers to ‘unknow’ false claims,” says Meisel. “You’ve got to get the ad off the air.” Weinberger certainly knows the drill, having tried at least two dozen false ad cases over the past 20 years. Still, even he admits that his schedule last fall of three back-to-back injunction hearings in the Johnson & Johnson Acuvue case and the Nexium and Listerine matters was trying. “You’re having to pull together massive amounts of material in a very short time. Then you have to quickly absorb it,” says Weinberger. “It’s very intense.” Though Weinberger says he’s too old to pull all-nighters, he did put in a lot of late nights and weekends throughout the fall. The timetable was especially tight in the Acuvue case, where Kramer Levin lawyers had only about a month to prepare for the mid-October 2004 hearing in New York’s Southern District court. Weinberger’s goal: to stop a CIBA ad campaign, aimed at doctors, which claimed CIBA’s contact lenses scored well above a minimum threshold for “oxygen transmissibility,” or allowing air into the eye. The ads claimed that Acuvue lenses failed to meet the minimum. Weinberger’s team needed to attack the credibility of the research supporting CIBA’s claims. On that score Weinberger landed a huge break. Through one of his side’s expert witnesses, Weinberger learned that Richard Hill, a retired Ohio State University professor, who was one of the principal authors of CIBA’s oxygen transmissibility study, believed that CIBA’s ad campaign did not accurately reflect his findings. Weinberger deposed Hill, whose videotaped testimony became a centerpiece of Johnson & Johnson’s case. In the end, federal district court judge Laura Taylor Swain not only told CIBA to drop its oxygen transmissibility claims, it took the unusual step of ordering the company to send out corrections to doctors who had received the ads. “It was an extraordinary remedy,” says Kramer Levin partner Wagner, who notes that judges rarely deem such “corrective advertising” necessary. CIBA’s defense counsel — Charles Work, a partner with McDermott Will & Emery — did not return calls for comment. Next up after the CIBA case: the Pfizer preliminary injunction hearing. This time Weinberger was aiming to stop Pfizer’s Listerine advertising campaign before the public started believing that it could get away with not flossing. “People love to be told they don’t have to do something that’s difficult,” says Weinberger. “That’s what made this so pernicious.” Pfizer had based its Listerine ad campaign on two dental journal research articles that purportedly showed that mouthwash worked as well as flossing in controlling plaque and gingivitis. At the hearing, however, Weinberger attacked those findings, noting that the authors of both studies had cautioned that some study participants may not have been flossing as regularly and carefully as they were supposed to, which could have skewed the results. Before launching its campaign, Pfizer had won the American Dental Association’s permission to include the ADA’s seal of acceptance on the new ads — on the condition that the ads would clearly state that Listerine should not be seen as a substitute for flossing. Despite Pfizer’s assurances, however, Weinberger argued that the ads failed to clearly communicate that point. As proof, he cited a consumer research survey commissioned by McNeil-PPC, maker of Reach floss, that found that roughly 30 percent of those who viewed the Pfizer ads took away the message that if they used Listerine, they didn’t need to floss. What’s more, he argued that dentists, too, were concerned about the ad campaign, pointing to an internal Pfizer memo that stated that at least three-quarters of attendees at a July 2004 Academy of General Dentists convention believed the Listerine ads were sending the “wrong message.” Last January federal Judge Denny Chin of New York’s Southern District agreed, calling the Pfizer ads “false and misleading,” as well as a potential public health risk. “The advertisements present a danger of undermining the efforts of dental professionals — and the ADA — to convince consumers to floss on a daily basis,” wrote Chin, in a decision granting Weinberger’s preliminary injunction request. Pfizer’s lawyer, Kaye Scholer partner Thomas Smart, did not return calls for comment. In both the Listerine and the Acuvue cases, the goal, of course, was to drive an offending ad campaign off the air or out of print. Weinberger, though, can also put up a good defense in a jury trial, as he showed in the Crest Whitestrips case, where he helped client Procter & Gamble fend off a $79 million damages claim. (Weinberger’s co-defense counsel was James Quinn, a litigator at New York’s Weil, Gotshal & Manges, who was brought in for the trial.) Colgate, makers of Simply White, sued Procter & Gamble over an ad campaign that claimed that Whitestrips whitened teeth five times better than Simply White. To win their case, Colgate’s lawyers from Proskauer Rose had to prove that the testing Procter & Gamble used to back up its claim was inaccurate. Weinberger and Quinn countered by challenging Colgate’s expert witnesses and challenging the company’s own method for measuring whiteness in teeth. Weinberger turned up the attack in his questioning of William DeVizio, Colgate’s director of clinical testing. In depositions, DeVizio had been unable to arrange a set of model teeth from least to most white to correspond with the company’s color shading system — a failure Weinberger hammered home during the cross. “He’s an aggressive cross-examiner,” says Procter & Gamble associate general counsel Paul Franz. “Colgate didn’t get a lot of sympathy [from the jury],” says Franz, and the case against Procter & Gamble was dismissed. Proskauer Rose partner Michael Mervis contends that the verdict was a close one. But he adds that Weinberger definitely earned his respect. “It was extremely well litigated on both sides,” says Mervis. Procter & Gamble’s Franz also values Weinberger’s trial skills. Still, he adds that what really sets him apart is his uncommon zest for poring over data, survey designs and statistics. “Most lawyers are lawyers because they’re not numbers people. But [Weinberger] has a relish for the statistical side,” says Franz. “He’s a masochist — he seems to like it.”
AD CAMPAIGN A rundown of Weinberger’s wins
Case: McNeil-PPC, Inc. v. Pfizer, Inc.(January) Dispute:Pfizer’s Listerine advertisements claimed the mouthwash was “clinically proven as effective as floss.” McNeil-PPC, the Johnson & Johnson subsidiary that makes Reach dental floss, sought an injunction to stop the campaign, which it claimed was false and misleading. Weinberger’s team had to attack the research Pfizer used to back up its ads. Result:Pfizer not only had to stop the campaign, the company was forced to dispatch squads of contractors to stores to sticker over Listerine bottles bearing the claim. Case: Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corporation(December 2004) Dispute:Weinberger’s client, Johnson & Johnson, wanted to secure an injunction against a CIBA ad campaign, aimed at eye doctors, which claimed that CIBA’s contact lenses scored well above a minimum threshold for “oxygen transmissibility.” The ads claimed that J&J’s Acuvue lenses failed to meet the threshold. Result:Judge Laura Taylor Swain ordered CIBA to drop its claims, and had the company to send out corrections to doctors who had received the ads. Case: Colgate-Palmolive Company v. Procter & Gamble Company(July 2004) Dispute:In a jury trial, Weinberger had to defend a Crest Whitestrips campaign that claimed that Whitestrips whitened teeth five times better than Colgate’s Simply White product. Colgate claimed the ads were false and misleading and sought $79 million in damages. Result:After a two week trial, the jury sided with Procter & Gamble.

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