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We took special note of a New York Times story over the weekend about what appears to be an increase in litigation and other dispute resolution over claims companies make about themselves and competitors in advertisements. The advertising industry's self-policing organization -- the National Advertising Division -- says 2009 will mark a record year for formal complaints filed at the agency, which can hear disputes and issue recommendations but has limited enforcement powers. (Companies seeking a stronger remedy, such as injunction barring the airing of an ad, must file a lawsuit.)
In the past couple of months, we've talked to several Am Law 100 partners involved in contentious advertising disputes filed with NAD. In one case we featured, Qwest Communications retained Manatt, Phelps & Phillips to represent it before NAD in a case in which Qwest disputed claims -- featured in competitors' ads -- that Qwest locked customers in to long-term contracts with hefty termination fees. In another dispute that hits closer to our world, the publishing company behind BAR/BRI filed a complaint with NAD against Kaplan, claiming that Kaplan's ads inaccurately implied that only 73 percent of BAR/BRI students pass the bar.
So how does one become an advertising lawyer? In a lot of cases, it appears to happen by accident. Christopher Cole, the Manatt partner who advised Qwest, has a degree in marine biology and ended up in advertising because his background in science provided him with unique insight into the methodology behind the studies that back up advertiser claims. (We're talking about studies that say, for instance, that 75 percent of consumers prefer one beer over another.) Scott Dailard, a Dow Lohnes partner who advised Cox Communications in the Qwest matter, told us his IP and antitrust work for telecom companies gradually morphed into a practice focused on advertising as competitors increasingly mentioned each other unfavorably in advertisements.
In any case, it appears now is a great time to be an advertising lawyer.
This article first appeared on The Am Law Daily blog on AmericanLawyer.com.
