False Advertising Litigation: Affirmative Challenges, Defense Strategies, and Risk Mitigation

Barry M. Benjamin, partner | Venable LLP

Barry M. Benjamin is a partner at Venable LLP in New York and a nationally recognized advertising and technology attorney with more than two decades of experience advising companies on advertising law, marketing compliance, privacy, technology transactions, and high-stakes disputes. His practice spans counseling clients on advertising campaigns, promotions, social media, influencer marketing, privacy compliance, and commercial transactions, as well as representing businesses in regulatory investigations, self-regulatory proceedings, class actions, and complex litigation. Barry advises clients across numerous industries, including consumer products, retail, hospitality, telecommunications, digital media, food and beverage, and entertainment.

• Education & Credentials

Barry earned his Juris Doctor from Fordham University School of Law in 1993 and his Bachelor of Arts from University of Michigan in 1990. He is admitted to practice in New York and New Jersey. His legal practice combines extensive experience in advertising law, privacy and data security, technology transactions, intellectual property, and consumer protection.

• Recognition & Leadership

Barry is nationally recognized for his work in advertising law and marketing regulation. He has been ranked by Chambers USA in Transactional and Regulatory Advertising from 2018 through 2026, recognized in The Best Lawyers in America for Advertising Law since 2011, selected to Super Lawyers (New York) from 2009 through 2026, and recognized by Lexology Index for Data, Telecoms & Media Law. His leadership in the advertising and technology space has made him a trusted advisor on complex regulatory, transactional, and litigation matters involving marketing, privacy, and emerging technologies.

• Professional Involvement

Barry is actively involved in the advertising and marketing legal community through leadership, speaking, and professional service. He serves on the Legal Affairs Committee and Government Relations Committee of the Association of National Advertisers and previously served on the Consumer Affairs Committee of the New York City Bar Association. He is also a frequent author and speaker on advertising law, privacy, technology transactions, influencer marketing, and emerging media issues, regularly providing guidance on evolving regulatory and compliance developments.

• Experience

Barry advises companies on a broad range of advertising, marketing, privacy, and technology matters, including advertising claim substantiation, sweepstakes and promotions, influencer and brand licensing agreements, social media campaigns, SaaS and technology agreements, data analytics, and commercial contracting. He regularly represents clients before the National Advertising Division (NAD), the Children’s Advertising Review Unit (CARU), the Federal Trade Commission, and state attorneys general in regulatory investigations and enforcement actions. His experience also includes defending consumer class actions, advising on compliance with the TCPA, CAN-SPAM Act, COPPA, and state privacy laws, negotiating complex technology and commercial agreements, and representing clients in intellectual property, privacy, and false advertising disputes.

Andrew Lustigman | Olshan Frome Wolosky LLP

Andrew Lustigman is a partner at Olshan Frome Wolosky LLP, where he chairs the Advertising, Marketing & Promotions Group and co-chairs the Brand Management & Protection Group. He advises domestic and international clients on a broad range of advertising, marketing, and promotional law matters, providing strategic counsel on regulatory compliance, marketing campaigns, and brand protection. Andrew regularly represents advertisers, marketers, agencies, and suppliers in regulatory investigations, enforcement actions, and litigation, with extensive experience helping clients navigate complex advertising, consumer protection, and promotional marketing laws across traditional and digital media.

• Education & Credentials
  

Andrew is an attorney whose practice focuses on advertising, marketing, promotions, brand management, and regulatory compliance. He advises clients on the legal aspects of advertising clearance, promotional marketing, social media campaigns, subscription marketing, and consumer protection issues, as well as regulatory matters involving the Federal Trade Commission (FTC), Food and Drug Administration (FDA), and other governmental agencies.

• Recognition & Leadership
  

Andrew serves as Chair of the Advertising, Marketing & Promotions Group and Co-Chair of the Brand Management & Protection Group at Olshan Frome Wolosky LLP. In these leadership roles, he advises clients on sophisticated advertising and promotional marketing issues while helping businesses address emerging legal and regulatory challenges. His leadership extends to counseling companies on innovative marketing initiatives, regulatory compliance, and brand protection strategies across multiple industries.

• Professional Involvement
  

Andrew is a frequent advisor to marketers, advertisers, agencies, and suppliers on the legal and compliance aspects of advertising and promotional campaigns. He structures sweepstakes, contests, games of skill, fundraising promotions, social media initiatives, direct marketing campaigns, and subscription marketing programs, while also conducting advertising and marketing due diligence for mergers, acquisitions, and investments. He regularly represents clients before the National Advertising Division of the Better Business Bureau and advises on regulatory matters involving the FTC, FDA, U.S. Department of Justice, Federal Communications Commission, U.S. Postal Service, state attorneys general, district attorneys, and other governmental authorities.

• Experience
  

Andrew has extensive experience advising clients across all forms of media, including social media, internet, television, print, radio, direct mail, mobile platforms, telemarketing, and other electronic communications. His practice encompasses advertising clearance, promotional marketing, health-related advertising and labeling, subscription marketing, privacy, intellectual property, and brand protection. He represents clients in regulatory investigations, enforcement actions, commercial litigation, competitor advertising disputes, class actions, and false advertising claims, and frequently appears in federal and state courts as well as before the National Advertising Division. His experience also includes advising on the advertising and labeling of over-the-counter products, dietary supplements, medical devices, cosmetics, and medical foods, helping clients develop legally compliant marketing strategies while effectively managing regulatory and litigation risks.

I. Plaintiff side pre-litigation strategies and alternatives to consider | 1:00pm – 1:20pm

II. Plaintiff considerations in choice of forum, developing the complaint and satisfying the varying burdens of proof | 1:20pm – 1:40pm

III. Plaintiff analysis of whether a survey is necessary | 1:40pm – 2:00pm

Break | 2:00pm – 2:10pm

IV. Defendant side substantiation considerations, including pre-campaign and internal game-planning, puffery v. claims substantiation | 2:10pm – 2:30pm

V. Defendant response strategies, including involving experts | 2:30pm – 2:50pm

VI. Defendant evaluation of forums and burdens of proof: NAD versus Federal Court versus regulatory complaint, as well as the impact of an adverse decision and remedies | 2:50pm – 3:10pm