Kramer Levin Obtains Historic Jury Verdict for Client in False Advertising Case

In one of the largest Lanham Act false advertising verdicts ever, a jury in the Eastern District of Virginia found Mead Johnson & Company, one of the world’s largest manufacturers of infant formula, liable for falsely claiming that store brand infant formula manufactured by Kramer Levin’s client, PBM Products, is nutritionally deficient or inferior to Mead Johnson’s Enfamil brand of infant formula. The jury awarded PBM $13.5 million in damages.

The matter proceeded under the Eastern District of Virginia’s so-called “rocket docket.” In addition to significant document discovery, the parties conducted close to 30 depositions during a six-week period. Kramer Levin also briefed thirteen pre-trial motions, including three motions for summary judgment and seven motions in limine, in a three-week period. The Court dismissed several of Mead Johnson’s counterclaims before trial and, while the Court denied each one of Mead Johnson’s motions to exclude PBM’s experts, the Court excluded a significant portion of the expert testimony offered by Mead Johnson. After the close of Mead Johnson’s case at trial, we successfully moved to dismiss Mead Johnson’s $40 million Lanham Act counterclaim.

After a seven-day trial, on November 10, 2009 the jury found Mead Johnson liable for false advertising under Section 43(a) of the Lanham Act and awarded PBM $13.5 million in damages, which represents one of the largest verdicts ever obtained in a Lanham Act advertising case. On December 1, 2009, the Court ruled that PBM’s claims were not barred by the doctrine of laches, and entered a permanent injunction enjoining Mead Johnson from making any false statements concerning PBM’s infant formula, including the claims Mead Johnson previously made in Enfamil advertising that “only Enfamil LIPIL is clinically proven to improve brain and eye development,” and “There are plenty of other ways to save on baby expenses without cutting back on nutrition.” The Court also ordered Mead Johnson to retrieve from the public domain all advertising or promotional materials containing these or any other false claims about PBM’s store brand infant formula.

The Kramer Levin team consisted of Harold P. Weinberger, Jonathan M. Wagner, Jeremy A. Cohen, Tobias B. Jacoby, Seth F. Schinfeld, Julie Weisswasser and Matthew C. Temkin. Law 360, Corporate Legal Times Magazine and Brandweek Magazine covered the verdict.