The Threat of False Advertising Claims During COVID-19 Crisis: Orrick IP Partners Outline Steps Businesses Can Take to Minimize Risk

Bloomberg Law
April.29.2020

In this Bloomberg Law article, partners Caroline Simons and Sheryl Garko set out the seven practical steps business leaders and GCs can take to minimize risk against false advertising and fraud claims as they mobilize to provide critical goods and services during the COVID-19 crisis.

Caroline and Sheryl, members of Orrick’s IP litigation practice, note that companies ranging from liquor distilleries to apparel manufacturers and automakers are changing business operations and what they produce to help frontline workers and those staying at home. In addition, other essential businesses such as airlines, grocery chains and others have taken measures to protect employees and customers.

As a result, any representation a company makes about such steps opens up the risk of allegations of false advertising, they write. The article provides guidance on the basic steps businesses can take to insulate themselves against such claims, ranging from a thorough vetting process to ensuring representations have enough cushion to accommodate future changes in circumstances.

Authors

Caroline Simons Partner, Cyber, Privacy & Data Innovation, Geistiges Eigentum

Boston; New York

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D:+1 617 880 1885
E: [email protected]

Practice:

Cyber, Privacy & Data Innovation
Geistiges Eigentum
Trade Secrets Litigation
Strategic Advisory & Government Enforcement (SAGE)

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Caroline Simons Partner

Boston; New York

Caroline represents tech and consumer-facing clients -- from early-stage startups to some of the most recognizable online companies -- in litigation to protect their IP, brand, and reputation. Caroline's expertise includes the fast-evolving areas of Section 230 of the Communications Decency Act and online safety, cybersecurity & data privacy litigation, and IP litigation, including trademark/trade dress infringement and trade secret misappropriation. She is lead counsel in dozens of cases for one of the world's largest tech companies on claims challenging its content moderation and product design. Caroline also has advised clients in cyber incident response, including crisis management, government and internal investigations, and enforcement. Her experience gives her breadth of perspective and allows her to work with her clients to make swift and pragmatic decisions to effectively manage their reputational, legal, and financial risks. Clients appreciate Caroline's ability to engage, listen to, and connect with witnesses, company stakeholders, and factfinders -- both inside and outside the courtroom -- to achieve meaningful results.

Sheryl Koval Garko Partner, Geistiges Eigentum, Trademark, Copyright & Media

Boston

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D:+1 617 880 1919
E: [email protected]

Practice:

Geistiges Eigentum
Trademark, Copyright & Media
Patents
Trade Secrets Litigation
U.S. International Trade Commission

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Sheryl Koval Garko Partner

Boston

Over the course of her career, she has represented clients ranging from Fortune 50 companies to start-ups in trademark, copyright, false advertising, and trade secret litigations and at trial. She has worked with leading technology companies and some of the most recognizable brands in the world, including New Balance, Samsung, and Microsoft. She has tried cases to both judges and juries in federal courts across the United States and is experienced practicing before the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board and the International Trade Commission. Through her trial work, she has developed deep expertise in litigating novel and complex damages issues in IP cases and leveraging survey work.

Sheryl honed her skills in high profile, precedent setting cases. She represented New Balance at trial in the International Trade Commission in the successful defense of trade dress claims brought by Nike/Converse in a case that IP Law360 named it the top trademark ruling of 2016. Sheryl also represented Aereo against the major U.S. television networks in defense of its novel, industry-disrupting system for providing internet access to over-the-air broadcast television. That case ultimately went to the Supreme Court, which addressed copyright law issues of first impression.

Having prepared countless cases for trial, Sheryl has a clear understanding of the importance of identifying litigation strategy early on to direct the case in a cost- effective and efficient manner. Sheryl also leverages her wealth of experience to counsel clients on strategies to protect intellectual property when avoiding litigation is a strategic business priority.

Having also litigated a number of patent cases throughout her career, she brings to each matter a unique understanding of the intersection of copyright, trademark, trade secret and patent law. A superb communicator, she is able to explain diverse areas of complex technology to a judge or jury.

Sheryl has been consistently named as one of the leading intellectual property litigators in the world by World Trademark Review 1000, a peer and client survey. In its 2017 publication, WTR 1000 described her as "'highly recommended’ for her ‘helpful and creative advice,’ which is ‘always of first-rate quality.’” In the 2018 edition, WTR 1000 stated that Sheryl “offers significant firepower to any contentious mandate.” In the 2021 edition, WTR 1000 said Sheryl "puts her heart and soul into driving favorable outcomes."

Sheryl is the Global Chair of Orrick's Women's Initiative and serves on the firm's Management Committee.

She was named a 2017 Woman Worth Watching by Profiles in Diversity Journal. Sheryl was also singled out for Metropolitan Corporate Counsel’s Women in Business and the Law 2017 edition. In 2015, Massachusetts Lawyers Weekly named her one of the Top Women of Law and she received a 2015 Leadership Excellence Award from the National Diversity Council.