Interview: Bruce Keller of Debevoise & Plimpton

I’m inaugurating a new occasional feature, interviews with lawyers whose practices include advertising law. I’m starting close to home, with Bruce P. Keller, a partner at Debevoise & Plimpton LLP (where I was an associate). At Debevoise, he supervises the firm’s Intellectual Property Litigation Group. Along with his extensive litigation experience, he has taught Internet Law at Harvard with his partner Jeff Cunard and published extensively. He was an advisor to the American Law Institute’s Restatement of the Law: Unfair Competition, and is the co-author, with David Bernstein, of an advertising law treatise to be published next year by Law Journals Press.

Q: How did you get into advertising litigation?

Keller: I had been interested in the field of advertising as an undergraduate, written some pares on the subject and continued this interest in law school, where I was fortunate enough to get a job as a research assistant to Professor David Rice, who had both authored a case book on consumer law and was a principal draftsman of Massachusetts’s Unfair and Deceptive Practices statute, Section 93(a). Based on that background, I was able to land a job out of law school with a firm that had a large Madison Ave. advertising agency as a client.

Q: Tell us about a favorite advertising case (or cases) you litigated.

Keller: I have several. One is the lawsuit the Times Square building owners brought against the producers of the first Spiderman motion picture (Sherwood 48 Associates v. Sony Pictures Entertainment, Inc., 213 F. Supp. 2d 376 (S.D.N.Y. 2002)). They alleged, among other things, that the battle scene with Green Goblin, depicting digitally altered billboard signs, falsely communicated their endorsement of the film. I like that one not only because I was a huge Spiderman fan as a kid, but also because I got to tell my son that Spiderman needed my help.

Another involved the short-lived product, Mylanta Night Time Strength Antacid (Novartis Consumer Health, Inc. v. Johnson & Johnson & Merck Consumer Pharmaceuticals, Co., 129 F. Supp. 2d 351, aff’d, 290 F. 3d 578 (3d Cir. 2002)).

It is a case that made new law and involved a false claim that was inherent in the name of the product. As a result, the injunction stopped both the advertising and the sale of the product itself.

My favorite case, though may be one of my first, back in 1986. It involved the false claim by E.P.T. that it was the fastest home pregnancy kit then on the market because it could tell a woman if she was pregnant in as fast as 10 minutes (Tambrands, Inc. v. Warner-Lambert Co., 673 F. Supp. 1190 (S.D.N.Y.1987)). In fact, although that was true if you were sufficiently far along in your pregnancy, you could never know you were not pregnant until a full 30 minutes had elapsed, making our client’s 20 minute, positive or negative, test faster by 10 minutes. I always thought that was a particularly clever false advertising claim and was relieved we could prove it false to the court.

Q: What are some hot legal issues in the courts? What emerging trends in advertising law should advertisers be watching?

Keller: Surprisingly, from time to time, first principle issues like materiality, admissible survey results, standing and the proper standard of proof still crop up in given cases. I don't know that it is possible to generalize beyond that.

Q: Are internet advertising and user-generated content changing advertising law?

Keller: Not so much in the area of false advertising law, because the principles are the same regardless of the medium. These changes relate more to how the business is conducted and, of course, raise a host of ancillary issues related to privacy, rights clearance, making sure contest and other rules are clearly spelled out and issues that do not turn on likelihood of confusion (the standard that must be met in false advertising cases).

Q: What is your advice for a law student who wants to practice in the field? Given that most schools don’t teach advertising law, what are the best courses to take?

Keller: Besides yours, you mean? Actually, don't worry too much about what you take in law school, just enjoy learning how to think like a lawyer. If you want to be regarded as a good adviser to clients in this area, it is helpful to have a basic background in IP law, but more because so much of advertising and marketing is built on either clearing or owning those assets. A solid understanding of what makes a client’s business “go” is always going to stand you in good stead.