How to Defend Yourself in a Deceptive Advertising Lawsuit

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1Planning Your Defense

2Responding to the Lawsuit

3Defending Yourself at Trial

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Tips and Warnings

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A plaintiff who sues you for deceptive advertising must generally prove that you made a false or misleading statement of fact about a product which deceives a substantial segment of the audience. The plaintiff will also need to show that the statement is likely to mislead the audience and to injure the plaintiff. In order to defend against this kind of lawsuit, you must immediately contact your company’s attorney. False advertising lawsuits can be quite complicated. Often, you will need experts to testify whether the advertisement is true.

Steps

Part 1

Part 1 of 3:

Planning Your Defense

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   Receive a copy of the complaint. The plaintiff will start the lawsuit by filing a complaint in court. You should be sent a copy along with a summons. Read both documents closely.

   • Identify what advertising claim the plaintiff believes is false or deceptive. The plaintiff should describe the misleading advertisement.
   • Also note how much time you have to respond to the lawsuit. This information should be listed in the summons.
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   Review your advertising. Once you have identified the allegedly deceptive or false advertising, you should review it. Take out examples of all newspaper or web ads. If you are being sued about a commercial, then find video of the commercial. You will need to show the advertising to your attorney.

   • Try to look at the advertising neutrally, to see if you can see how the claims might be deceptive. It is important to look at the entire ad. Visual or graphic elements could render the advertisement misleading, even if the text or spoken words are not.
   • You also should get copies of any research that you cited in support of your claims. For example, if you manufacture a diet supplement and claimed that it helped people lose weight, then you must have based that information on clinical trial data. An advertising claim must be based on strong science and should not overstate the research. Get the data so that your lawyer can review it.
   • Also look at your labeling. You can make claims on the labeling that might be deceptive. For example, “all cotton” could be false if you use materials other than cotton.
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   Contact your lawyer. To effectively defend yourself, you should contact your lawyer as soon as you receive the complaint. If you work for a large company (such as a corporation), then your company should have general counsel. If you work for a smaller company, you might already have a lawyer on retainer. Ask your supervisor.

   • If you need to hire a lawyer, then you should gather referrals from other companies who have been sued for deceptive advertising. Once you get a referral, you can call and set up a consultation. At the consultation, you should show the lawyer all relevant documents.
   • You might be a small business without many funds. In this situation, you should still meet with a lawyer for a consultation. Many attorneys now offer free or reduced price consultations. You can also ask about hiring the lawyer to perform only certain tasks. This is called “limited scope representation.” For example, the lawyer might agree to draft an answer or summary judgment motion. Or a lawyer might agree to solely offer you advice.
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   Plan your defense. Typically, you will defend a deceptive advertising claim by arguing that the plaintiff hasn’t shown that a reasonable consumer would have been misled. For example, some statements are so exaggerated that a reasonable consumer could not possibly believe it. Stating that a product “will change your life” would fall into this category. However, you also can raise other defenses.

   • Argue that the case is really a fraud claim. Plaintiffs actually have to allege more information in a fraud case than they do a regular false advertising claim. With fraud, the plaintiff has to allege the “who, what, where, when, and how” with particularity. If the plaintiff can’t make these allegations, then the case can be dismissed.
   • If the false advertising relates to nutritional information put on a food label, then you can argue that federal law pre-empts the lawsuit because the lawsuit would impose new burdens on manufacturers.
   • Claim that the advertising is mere “puffery.” Puffery is a broad or vague overstatement about the general qualities of a product. A consumer would understand puffery as being the seller’s opinion. For example, claiming that a new product is the “best on the market” is too vague to be sued for. However, if you said that a lightbulb “lasts the longest of all bulbs on the market,” then you are making a specific claim which may be false or deceptive.
   • Argue that your advertising claims are true. If your advertising was not false or deceptive, then you can raise that as a defense. The plaintiff will then have to offer evidence proving that the advertisement is false or deceptive.
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Part 2

Part 2 of 3:

Responding to the Lawsuit

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   Draft an answer. You need to respond to the complaint. You can do this by having your lawyer draft an answer. In the answer, you respond to each allegation made by the plaintiff. Specifically, you admit, deny, or claim insufficient knowledge to admit or deny each claim.

   • You can also raise affirmative defenses. For example, the plaintiff might have waited too long to bring the lawsuit. This is called violating the “statute of limitations.” You should ask your lawyer how much time the plaintiff had to bring the lawsuit. If he waited too long, you can have the case dismissed.
   • If you are representing yourself without a lawyer, then you will need to draft your own answer. Some courts have “fill in the blank” answer forms that you can use. Check with the court clerk.
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   File the answer. Once you have completed your answer, you should make several copies. Take all copies and the original to the court clerk and ask to file. You may have to pay a filing fee, depending on the court.

   • Also have the clerk date stamp all copies.
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   Serve a copy of the answer on the plaintiff. If the plaintiff has a lawyer, then serve your copy of the answer on the attorney. If not, then serve the answer on the plaintiff. Depending on your court’s rules, you can serve an answer in a variety of ways:

   • Use first class mail, return receipt requested. Sometimes the clerk will mail it for you.
   • Have it personally delivered by someone 18 or older who is not a party to the lawsuit.
   • Hire a process server, who will serve the answer for a small fee.
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   File proof of service. Whoever serves the answer on the plaintiff may have to fill out a Proof of Service or Affidavit of Service form. Ask the court clerk if this is required. Once the service has been made, the server fills out the form and returns it to you. You then must file it with the court clerk.

   • Always keep a copy of court documents for your own records.
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   Defeat class certification. Often, deceptive advertising claims are filed as class actions. In a class action, certain representative plaintiffs file a lawsuit on behalf of all people who share a similar injury caused by your conduct. Class actions can be enormously expensive. If the plaintiffs certify a nationwide class, then tens of thousands of plaintiffs could bundle their claims against you.

   • Accordingly, you should try to defeat certification of the class. When the plaintiffs file a certification motion, you should file a motion in opposition. If you prevail, then each plaintiff will have to bring a lawsuit individually. Often, if the individual plaintiffs have a claim for only a small amount of money, they won’t bring individual lawsuits.
   • For information on how to defeat class action certification, see Defend Yourself in a Class Action Lawsuit.
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   Request documents from the plaintiff. After you file an answer, the judge will set a schedule for “discovery.” This is the fact-finding phase of civil litigation. In discovery, you can request relevant documents from the plaintiff, who can also request documents from you.

   • You should request a copy of any document mentioned in the complaint. If the plaintiff alleges that surveys show consumers were misled by your advertising claims, then you should request copies of those surveys.
   • You also should request any documents related to the plaintiff’s claimed damages.
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   Depose the plaintiff. You can also ask the plaintiff (or other witnesses) questions. You can ask the questions in writing, using Interrogatories, or in person, during a deposition. During a deposition, you and the witness meet in a lawyer’s office and the witness answers questions under oath. A court reporter typically records the questions and answers.

   • You could be deposed as well, particularly if you had a role in the advertising campaign. If you are deposed, then remember the following tips:
     • Listen closely to the question and ask for clarification if you do not understand it.
     • Do not guess. Instead, say “I don’t know” or “I can’t remember.”
     • Speak to your attorney. You always have a right to take a break and huddle with your attorney to discuss your answer. Simply say, “I think I’d like to talk to me lawyer right now.”
     • Always stay calm and be respectful of all people, even opposing counsel.
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   File a motion for summary judgment. After discovery ends, you can file a motion for summary judgment. In this motion, you argue that there are no triable issues of fact that require a jury trial and that you are entitled to judgment as a matter of law.

   • Summary judgment motions are complicated legal arguments which require the assistance of an attorney. If you do not have a lawyer, you might want to hire one to draft this motion for you.
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Part 3

Part 3 of 3:

Defending Yourself at Trial

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   1
   Get expert witnesses. You may need expert witnesses, especially if the plaintiff has one. Experts are used in deceptive advertising claims in several ways.

   • The expert can perform surveys of the public to show that your advertising misleads a substantial portion of the public.
   • The expert can also test the product in order to confirm or deny the claims made in your advertising. If you advertise that a product lasts 25% longer than a certain competitor’s, then the experts will test that claim.
   • You will need expert witnesses to challenge the testimony of the plaintiff’s experts. Your lawyer should be familiar with experts in the relevant fields.
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   Pick a jury. You might want to have your case decided by the judge instead of a jury. However, if either you or the plaintiff want a jury, then you will most likely get a jury trial. To select the jury, the judge asks a panel of prospective jurors questions in order to uncover if they can be impartial.

   • If you think a juror will be biased—because they know one of the parties or they have admitted to knowing too much about the case already—then you can ask the judge to excuse the juror for cause.
   • The judge might also give you “peremptory challenges” to use. With a peremptory challenge, you can excuse a juror without the judge’s permission or without having to state your reason.
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   Make an opening statement. The plaintiff delivers their opening statement first. As the defendant, you go second. The purpose of the opening statement is to give the jury a “sneak peek” at what evidence you will present and why the evidence is relevant.

   • Your lawyer should explain who your witnesses will be, how they relate to the lawsuit, and what they will testify about.
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   Challenge the plaintiff’s witnesses. The plaintiff goes first. In a deceptive advertising lawsuit, it is not uncommon to have mostly expert witnesses testify. Your lawyer’s job on cross-examination is to undermine the expert witnesses’ credibility.

   • Your lawyer can try to undermine the expert’s testimony by pointing to statements or claims the expert made in published articles or treatises that contradict the testimony on the stand.
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   Present defense witnesses. After the plaintiff presents his or her case, you will then present yours. Typically, you will present your expert witnesses who can testify as to what their product testing showed.

   • The plaintiff will then get a chance to cross-examine your experts, just as your lawyer was able to challenge the plaintiff’s. Often, these lawsuits can become a “battle of the experts.” You will win if the jury thinks that your expert is more credible than the plaintiff’s.
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   Deliver a closing argument. When each side has finished presenting evidence, they will then make a closing argument. The purpose of the closing is for your lawyer to summarize the evidence and argue that the plaintiff has failed to prove all the necessary elements of the claim.

   • You can expect your lawyer to make constant reference to the evidence just presented and to use graphs or charts to make the evidence understandable to the jury.
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   Await the verdict. After the judge reads the jury instructions, the jury retires for deliberations. If you are in federal court, then the jury verdict must be unanimous.

   • However, in many state courts you can lose a civil case like deceptive advertising if nine or more jurors (out of 12) decide against you.
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   Think about appealing, if necessary. If you lose at trial, you might want to file an appeal. You should discuss whether to appeal with your lawyer. Appeals can be quite lengthy and expensive. Also, there is no guarantee you will win your appeal.

   • If you want to appeal, then ask the court clerk for a Notice of Appeal form. Fill it out and file it with the court.
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Tips

• You can always try to settle the dispute outside of court. For example, you might want to meet with the plaintiff and his or her attorney to try and negotiate a settlement. Or you might want someone to help guide the settlement negotiations. This is called “mediation.” If you are interested in either negotiation or mediation, then you should talk with your lawyer about these options.
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• You can also try the case before an arbitrator. The arbitrator is a neutral third party who acts like a judge. Unlike mediation and negotiation, you cannot walk away from arbitration. Instead, you are bound by the arbitrator’s decision. Arbitration is often faster than a trial in court. The proceedings are also private.
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