Harold P. Weinberger is a Fellow of the American College of Trial Lawyers. In his 40 years of practice, all at Kramer Levin, Mr. Weinberger has handled all types of complex civil litigations in courts all over the country and in arbitrations, in areas ranging from intellectual property (licensing, false advertising, trademarks and copyright), contracts, mergers and acquisitions and real estate, among others. Mr. Weinberger has tried dozens of case to juries, judges and arbitrators and argued appeals in the New York Court of Appeals and the First, Second, Third, Ninth and Eleventh Circuits.
Mr. Weinberger heads Kramer Levin’s Advertising Group and is among the leading litigators in the country in that field. He regularly advises clients on prospective advertising and has been lead counsel in the litigation of many false advertising cases under Section 43(a) of the Lanham Act, representing both plaintiffs and defendants.
Mr. Weinberger’s most recent representation was of PBM Products, which manufactures store brand infant formula for retailers such as Wal-Mart, Target and others. PBM sued Mead Johnson, makers of Enfamil, in the United States District Court for the Eastern District of Virginia for falsely claiming that Enfamil provided superior nutrition compared to PBM’s products. In November of 2009, a jury found in PBM’s favor and awarded PBM $13.5 million in damages, one of the largest reported false advertising verdicts. The Court also dismissed Mead Johnson’s $40 million Lanham Act counterclaim at the close of the evidence, denied Mead Johnson’s laches defense, and issued a permanent injunction barring Mead Johnson from making any false claims about PBM’s infant formula and directing Mead Johnson to retrieve the offending advertisements from the public domain. The verdict, permanent injunction and dismissal of the counterclaims were all affirmed by the United States Court of Appeals for the Fourth Circuit on April 20, 2011.
Mr. Weinberger’s other recent false advertising matters include his representation of Neutrogena in the United States District Court for the District of Delaware in which the Court enjoined Schering-Plough’s advertising for its Coppertone Sport products while leaving intact most of the claims in Neutrogena’s ads. Mr. Weinberger also successfully defended advertising claims by The Procter & Gamble Company for Tampax Pearl tampons in an action brought by Playtex Products Co. in the United States District Court for the Southern District of New York. In the past few years Mr. Weinberger also represented of McNeil-PPC, Inc., a subsidiary of Johnson & Johnson and the manufacturer of Reach® dental floss, in which he obtained an injunction against Pfizer, Inc., the manufacturer of Listerine® mouthwash, precluding Pfizer from making false claims that Listerine is “as effective as floss,” and requiring Pfizer to cover over labels on product bottles displaying the offending claim. Mr. Weinberger represented AstraZeneca in a false advertising dispute with TAP Pharmaceuticals in the United States District Court for the District of Delaware, in which he defeated a preliminary injunction motion seeking to enjoin AstraZeneca’s “Better is Better” comparative advertising campaign for Nexium,® the country’s best-selling prescription drug. In another recent case, Mr. Weinberger obtained a judgment on behalf of Johnson & Johnson enjoining CIBA Vision Corporation from making false claims comparing its new O2OPTIX® contact lens product with ACUVUE® lenses and also awarding corrective advertising. In addition, following a jury trial, Mr. Weinberger obtained a verdict dismissing a complaint of Colgate-Palmolive, Inc. that advertising claims by The Procter & Gamble Company comparing its Crest Whitestrips® tooth bleaching product to Colgate’s Simply White® product were false or misleading.
Mr. Weinberger’s cases have generated a good deal of Lanham Act precedent, including three significant appellate court decisions: The Procter & Gamble Company v. Chesebrough-Ponds, Inc., 747 F.2d 114 (2d Cir. 1984); Sandoz Pharmaceuticals Corp. v. Richardson-Vicks, Inc., 902 F.2d 222 (3d Cir. 1990) and L&F Products v. The Procter & Gamble Company, 45 F.3d 709 (2d Cir. 1995). Another seminal decision arose from Mr. Weinberger’s successful defense of advertising for the Aleve® analgesic, American Home Products Corp. v. The Procter & Gamble Company, et al. 871 F. Supp. 739 (D.N.J. 1994). In addition, Mr. Weinberger’s successful prosecution of the first Lanham Act case dealing entirely with detailing of sales representatives for pharmaceutical products resulted in a significant decision, Zeneca Inc. v. Eli Lilly and Company, 1999 WL 509471 (S.D.N.Y. July 19, 1999).
Mr. Weinberger has also defended class actions under state consumer fraud statutes involving products such as contact lenses, shampoos and detergents in federal and state courts throughout the country and has represented clients in connection with advertising disputes before the National Advertising Division of the Council of Better Business Bureaus.
Mr.Weinberger has spoken on issues relating to advertising at cosmetics and pharmaceutical industry legal conferences and at ABA, PLI and other CLE seminars. He has authored numerous publications on the Lanham Act and related false advertising issues. In addition, he is a lecturer in law at Columbia University Law School, where he teaches a seminar in false advertising law. Mr. Weinberger has been recognized as one of The Best Lawyers in America in Advertising Law (2007-2011). He is listed in Chambers USA — America’s Leading Lawyers (2006-2011) and Legal 500 US (2009-2011). He has been listed in all issues of Super Lawyers (2006-present), a special supplement to The New York Times, and in 2009 and 2010 he was ranked among the top 100. Mr. Weinberger was named to the 2011 Lawdragon 3000, composed of "...an amazing compilation of attorneys from the 'finalists' stage who set the standard for excellence." Additionally, the 2008, 2010 and 2011 editions of Benchmark: Litigation singled out Mr. Weinberger as one of New York’s "Litigation Stars" and specifically cited him for his commercial litigation practice.