Norman C. Simon

Represented The Procter & Gamble Company, maker of dietary supplement Metamucil, in successfully defending an appeal by GlaxoSmithKline (GSK) before the NARB related to claims for GSK’s Benefiber supplement. NARB affirmed the NAD’s recommendation that GSK discontinue certain advertising claims.

Represented The Procter & Gamble Company in an appeal before the NARB concerning advertising by S.C. Johnson & Son, Inc. (SCJ) for its Windex with Vinegar cleaner. NARB affirmed NAD’s recommendation that SCJ discontinue its unqualified claim that Windex with Vinegar is “non-toxic,” which also resolved a parallel appeal related to the same claim on SCJ’s Method-branded cleaning products.

Represented TrueCar Inc. in a Lanham Act false advertising suit seeking more than $77 million in damages brought by 108 individual car dealers across the country. Secured a dismissal of all plaintiffs’ claims on summary judgment, following on a successful motion to exclude plaintiffs’ damages expert.

Represented Revlon Consumer Products Corp., maker of Almay brand cosmetics, in putative class action alleging that “hypoallergenic” labelling for Almay products was false. Following two rounds of briefing on motions to dismiss, plaintiff voluntarily withdrew her complaint.

Represented Congoo LLC, an online advertising company, as well as the company’s CEO and its head of business development, in a federal jury trial.  After a six day trial, the jury returned a verdict that rejected completely the plaintiff’s claim that Congoo had engaged in false or misleading advertising. While finding that some of the statements made by a Congoo employee had been defamatory, the jury rejected the plaintiff’s request for over $20 million in damages, and instead awarded only $157.17 of actual damages, $1 of assumed damages, and $40,000 total in punitive damages.

Represented Procter & Gamble Co., maker of Pampers brand diapers, in an appeal before NARB concerning advertising claims made by Kimberly-Clark (K-C) for its competing Huggies brand diapers. The NARB panel recommended that K-C discontinue its advertising claim that Huggies are the “fastest growing brand in hospitals” unless it was supported by recent, reliable third-party sales or market share data for the hospital diaper market as a whole.

Represented Revlon Consumer Products Corp., maker of ColorStay Gel Envy Longwear Nail Enamel products, in a challenge before NAD concerning advertising by Coty Inc. for its competing Sally Hansen Miracle Gel nail products.  NAD recommended that Coty discontinue its advertising claims that Miracle Gel is “a real GEL” that offers consumers “the ONLY TRUE 2-STEP GEL MANICURE with no light needed,” and provides “up to 14 days of color & shine.”  NARB affirmed on appeal.

Represented Johnson & Johnson Consumer Inc., McNeil Consumer Healthcare Division (J&J), maker of Zyrtec, in a challenge before NAD against certain advertising by Chattem Inc. for  its competing allergy medication, Xyzal. NAD recommended that Chattem discontinue certain claims because they misleadingly communicated that Xyzal’s pharmacological design conferred a clinical benefit, which is false. NAD also recommended that Chattem’s claims that Xyzal provides the same relief or efficacy as Zyrtec with half the medicine must be discontinued.

Represented Procter & Gamble Co., maker of the fiber regularity product Metamucil, in a challenge before NAD. Successfully petitioned NAD to reopen a 1994 case and review anew certain advertising by GlaxoSmithKline (GSK) for its competing product, Citrucel. After finding that P&G met the procedural requirement of presenting “extraordinary circumstances” in the form of human studies directly related to the digestion of fiber in the human body (versus laboratory testing that existed in 1994), NAD recommended that GSK discontinue its claim that Citrucel is “The Only Fiber For Regularity that WON’T CAUSE EXCESS GAS,” as well as the claim that Citrucel “doesn’t cause gas” in a comparison chart to Metamucil on GSK’s website.

Represented Johnson & Johnson Vision Care Inc., maker of ACUVUE-brand contact lenses, in a challenge before NAD concerning advertising by Bausch & Lomb Inc. (B&L) for its competing ULTRA contact lens product. NAD recommended that B&L discontinue its claims to eye care professionals that ULTRA lenses “have significantly more PVP (4x as much of the wetting agent) than [ACUVUE OASYS lenses]”; that ULTRA lenses have “best-in-class properties for best-in-class performance”; and that ULTRA lenses are “Patient preferred for end-of-day comfort over the leading silicone hydrogel lenses ... 2 to 1 vs. ACUVUE OASYS.” NAD also recommended that B&L discontinue related “better comfort” and “better vision” claims that were based on a contact lens “refit” study that NAD determined to be “materially flawed” and “insufficiently reliable to support the advertiser’s comparative performance and preference claims.”

Represented Procter & Gamble Co. in a federal action against Hello Products LLC, which alleged that the Lanham Act precludes Hello from marketing an anti-cavity toothpaste as “99% Natural.” Obtained a stipulated preliminary injunction order requiring Hello to discontinue making the claim on its toothpaste packaging and advertising.

Represented American CareSource Holdings, in a putative class action brought pursuant to the Telephone Consumer Protection Act. Successfully obtained a waiver from the relevant regulation concerning facsimile communications from the Federal Communication Commission.

Represented Procter & Gamble Co. before NAD in a challenge concerning the company’s testing methodology for a leakage claim in comparative advertising for its Pampers diapers. NAD rejected the challenger’s claim, finding that the performance testing used by P&G was “methodologically sound” and “provided a reasonable basis for its claim,” and that the challenging advertiser did not possess any stronger or more persuasive evidence supporting a different result.

Represented ExxonMobil, the market leader of synthetic motor oil, in a challenge before NAD to a comparative advertising by BP p.l.c. for its Castrol motor oil based on “torture testing” that included a dramatically depicted engine failure in the vehicle with ExxonMobil’s Mobil 1 product. NAD agreed that BP’s testing had no “real-world relevance” and was insufficiently reliable to support its comparative claim, and recommended that the advertising be discontinued.

Represented Procter & Gamble Co. in defeating class certification of a Lanham Act class action alleging false advertising related to the exclusivity of professional hair care products in salons and effectively ending the litigation. The 2nd Circuit Court of Appeals affirmed the decision.

Represented Dial Corp. in a Lanham Act challenge against a private-label manufacturer promoting its inferior generic soap using a “compare to” claim. Secured a settlement that included monetary restitution and cessation of further comparative advertising without proper testing.

Represented Procter & Gamble Co. in a Lanham Act jury trial, defeating a claim for $80 million in damages and injunctive relief alleging false advertising of market-leading at-home tooth whitening strips product.

Represented Johnson & Johnson Vision Care Inc. in a Lanham Act case, securing a permanent injunction and corrective advertising award against a leading contact lens competitor that was found to be making false and disparaging comparative claims. In a subsequent jury trial, won a special verdict finding of willful false advertising and a damages award.

Represented a Fortune 500 sportswear apparel company in a federal securities class action alleging misstatements regarding the company’s expected revenue growth.

Represented one of the world’s leading biotechnology companies in a federal district court action against a multinational pharmaceutical corporation over allegations of breach of contract, negligent misrepresentation and fraudulent inducement in connection with the parties’ collaboration agreement to commercialize a migraine drug.

Represented CBS Corp. in the successful resolution of an arbitration dispute with former CEO Leslie Moonves, resulting in dismissal of the arbitration proceeding and a $120 million grantor trust reverting to CBS in its entirety.

Represented the Unsecured Creditors Committee of a major mortgage services company in the largest Chapter 11 case filed in 2012, In re Residential Capital, LLC, No. 12-12020 (Bankr. S.D.N.Y.). Led a team investigating estate and third-party claims and developed a theory of liability against the debtor’s parent that resulted in it nearly tripling its original proposed plan contribution from $750 million to $2.1 billion.

Represented Bear Stearns in both civil and criminal proceedings focused on the collapse of two investment funds related to the subprime mortgage crisis.

Represented Johnson & Johnson, successfully defending its biotechnology subsidiary in an arbitration commenced by a university claiming underpayment of royalties under a research and licensing agreement for contributions to the development of a best-selling anti-coagulant antibody.

Represented a high-level employee of a major pharmaceutical company in connection with internal and government investigations and civil proceedings involving the development and marketing of a pain medication.

Conducted an internal investigation of a significant data loss incident at a major financial institution. Prepared a report of findings and advised on remedial measures and recommendations for procedural revisions.

Represented Societe Generale in a federal court action by a former high-level employee, successfully winning a motion to compel arbitration of the employee’s breach of contract, discrimination, and other claims for over $80 million in damages.  A three-member arbitration panel subsequently rejected these claims in their entirety, and a federal court rejected the employee’s motion to vacate and confirmed the award.

Represented Societe Generale in a federal action by a former high-level employee alleging various breaches of contract, and achieved dismissal of all claims on summary judgment. The 2nd Circuit affirmed the decision on appeal.

Represented a prominent law firm in a proceeding before a panel of the American Arbitration Association, successfully defeating a former partner’s challenge to the firm’s retirement provisions as an allegedly improper restriction on the practice of law.

Represented GHMC in employment litigation, successfully defeating on summary judgment and sustaining on appeal claims for reverse sexual orientation discrimination brought by a former employee.

Represented religious organizations, authoring an amicus brief to the U.S. Supreme Court in the landmark cases of Obergefell v. Hodges, in which the Court held that the Constitution requires that same-sex couples may allowed to marry, and United States v. Windsor, in which the Court held Section 3 of the Defense of Marriage Act (DOMA) (defining marriage as the union of one man and one woman for purposes of all federal laws) unconstitutional.

Represented a Mississippi lesbian in a constitutional challenge to her high school’s denial of the right to attend her school prom with her girlfriend. Secured a judgment requiring the defendant school district to pay damages and attorneys’ fees and amend its policies to include student anti-discrimination protections based on sexual orientation.

Represented same-sex couples as pro bono co-counsel in several cases establishing recognition in New York of out-of-state marriages of same-sex couples and seeking the right to marry under the New York State Constitution.

Represented public health organizations, authoring an amicus brief to the U.S. Supreme Court in the 2003 landmark case Lawrence v. Texas, in which the Court held that the statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process clause of the Constitution.

Represented a same-sex couple in In re Hart, a case of first impression establishing second-parent adoption rights in Delaware.