From our base in New York, we represent a diverse range of clients across the country and around the world.

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Every retailer and consumer brand — whether a heritage household name or an agile direct-to-consumer start-up — is defined by the strength of its reputation, the appeal of its products, and the depth of its customer relationships. At Davis+Gilbert, our Retail + Consumer Brands team combines strategic vision and industry expertise with hands-on experience to protect, monetize and amplify those assets at every stage of the product lifecycle. We serve as outside general counsel or seamless extensions of in-house legal marketing and product teams, tailoring our role to meet each client’s business and legal objectives.

Davis+Gilbert represents all types of retailers and consumer-facing products companies — from emerging indie labels to global household names — in high-stakes matters involving claim substantiation challenges, deceptive pricing investigations, FDA warning letters, data security breaches, labeling and packaging guidance and intellectual-property protection. Whether it’s a Prop 65 enforcement action, a class-action involving deceptive subscription practices, a competitor challenge to marketing or product claims, or a dispute over trade-dress infringement, our team brings deep industry insight and knowledge combined with practical and business-friendly judgment to every stage of investigation, challenge, litigation and alternative dispute resolution.

In an era of omni-channel retailing, direct to consumer e-commerce, and social-media-driven trends, our Retail + Consumer Brands practice also counsels clients on the front end — providing practical guidance on compliance with regulatory obligations, helping design subscription programs, experiential marketing campaigns, virtual worlds, and sales promotions (including loyalty programs) that comply with TCPA, CAN-SPAM, COPPA and state “dark-pattern” and auto-renewal and other laws; negotiating influencer and affiliate agreements; and clearing rights and ensuring compliance for user-generated content campaigns. When regulatory bodies such as the FTC, FDA or state Attorneys General, local authorities and NAD come calling, we guide companies through targeted investigations and consent-order negotiations, leveraging our deep industry experience, our knowledge and expertise, and our industry involvement, for product and service, such as package goods, health, telecommunications, automotive and specialized and highly regulated industries (e.g., food, drug, cosmetics, alcoholic beverages, gambling) to help our clients achieve their business goals. Our bench-strength across advertising, privacy, regulatory, food-and-drug and product-safety disciplines.

From brick-and-mortar stores to e-commerce platforms, Davis+Gilbert delivers strategic, business-oriented counsel that helps retail and consumer brand leaders anticipate risk, protect their reputation, and build enduring loyalty in an increasingly complex marketplace.

Representative Experience

Advertising

  • Represented a multinational video game and electronics company in a seminal case before the FTC focused on the advertising of a new portable video game player and its interplay with third-party software video games. The case involved statements that pushed the boundary of what constitutes a real claim and the question of whether advertising agency employees must disclose their material connection to the agency and its client when they promote a client's products on social media.
  • Defended a seller of natural supplements in a private attorney general action concerning compliance with California’s Prop 65. Plaintiff had alleged that our client improperly sold its product without providing a warning of health risks required by California law. Negotiated a consent judgment preventing any other similar lawsuits and permitting our client to sell its product without warnings as long as the ingredients in the product complied with a negotiated formula.
  • Long-standing counsel to Little Caesars, supporting its aggressive comparative advertising strategies and innovative product delivery methods to maintain a competitive edge in the pizza industry, including making new claims to successfully compete for consumers on a global scale and advising the company in launching its first-ever Super Bowl commercial and in structuring advertising and social media campaigns to promote it, including developing Real Time Social Media Guidelines and drafting terms and conditions for a giveaway promotion.
  • Represented a global consumer products company, its advertising agency and a music production company in successfully defending a claim by a music publisher alleging that the company’s commercial infringed the publisher’s smash hit song.
  • Represented a major national brand in a state action alleging violation of a state environmental protection laws, threats to consumer safety and false representations of performance.
  • Assisted a major hardware and software consumer products category transition from a hardware to a software-as-a-service model, involving a total rehaul of all B2B and B2C user flows and terms and conditions and an audit of subscription practices.
  • Working with a top global food company with a diverse range of products in multiple categories on advertising, marketing and promotions. Advising on comparative advertising claims and substantiation, sponsorship and promotional activities, partnerships with charitable organizations and social media influencer arrangements.
  • Advised a major American fashion retailer of accessories marketed to preteens in connection with all aspects of a new global branded metaverse experience hosted on Roblox. Provided innovative solutions to navigate various legal challenges, from IP and trademark clearance and privacy roadblocks to structuring interactive gamification experiences on the platform, including sweepstakes, promotions, crowdsourced giveaways, use of virtual influencers and loyalty rewards programs, and crafting digital disclosures appropriate to this emerging space.
  • Regularly counsel consumer brands (e.g., beauty, fashion, wellness, consumer electronics) on digital and social-media advertising, influencer engagements, FTC/NAD compliance, sweepstakes and promotions, and risk mitigation for marketing content.

Advertising Disputes

  • Represented a multinational consumer health company in an advertising challenge brought before the NAD by a major consumer goods company, regarding the client's dietary supplement product. Achieved victory for our client by demonstrating that the core product efficacy claims were fully substantiated.
  • Successfully defended a global electronics company before the NAD against allegations of unsubstantiated product performance and environmental claims.
  • Won a critical appeal to the NARB (National Advertising Review Board) for a leading skin care brand of a global cosmetic company. The case represented a fundamental attack on the methodology of performance testing in the broader cosmetic category which, if unchanged, would have dramatically increased both the costs and complexity of consumer testing.
  • Successfully represented a leading toy company in the United States in a proceeding brought by the Children's Advertising Review Unit (CARU), which determined that the client’s ad and website were in compliance with CARU’s Guidelines.
  • Defended a leading paint manufacturer in a class action alleging marketing and packaging misrepresentations concerning the paint's name and benefits. Negotiated a favorable class settlement using a claims-made structure and limiting payment to a small fraction of the asserted damages and potential exposure. The resolution also allowed the company to continue using a product name that had developed considerable brand equity.
  • Represented a number of brands (global, national and local) in negotiated sponsorships and tie-in arrangements with major content and sports properties, including in sports (Formula 1, Olympics, NFL, MLB, NHL and NBA), and entertainment (movies, television and podcasts). This also includes deals with the most famous and well-known celebrities to the rising stars of social media.
  • Successfully handled sophisticated and financially expensive litigations with the record industry over the use of unlicensed music by influencers on social media on key social media platforms, like TikTok.

Real Estate

  • Advised Nike on the relocation of its flagship Niketown store in Manhattan, addressing complex real estate and regulatory challenges to establish the new House of Innovation.
  • Advised prominent retail brands like Godiva and Polo Ralph Lauren on flagship store leases and international expansion strategies.
  • Advised a global tech giant in a number of lease transactions, including the leasing of the entire office portion of a building in New York City, in addition to an entire building to be developed in Maryland.

Corporate Transactions and Financings

  • Advised a leading DTC provider of insulated drinkware for adult beverages in its $20 million Series A financing from a consumer-focused private equity firm.
  • Represented a SaaS-based provider of comprehensive social analytics solutions to leading consumer brands in the sale of a majority interest to a growth equity firm focused on software and tech-enabled business services.
  • Assisted a major public packaging company with its transformation to a consumer-focused business by helping it enter the realm of sports sponsorship. Negotiated a 10-year naming rights and sponsorship agreement, which included naming rights for an NBA, NHL and NLL arena, as well as interrelated sports sponsorship deals involving teams and venues in the major American sports leagues and English Premier League.

Intellectual Property, Technology and Licensing

  • Managed the U.S. and international trademark portfolio for a leading video game and e-sports company, overseeing clearance, prosecution and enforcement actions.
  • Represented a luxury mattress company in its acquisition of intellectual property rights in cutting-edge e-commerce and logistics technology in order to enhance its customer service efficiency and quality. Researched development and ownership history of the technology to ensure proper transfer of all rights therein; prepared and negotiated technology purchase agreement, software escrow agreement, intellectual property assignment and assumption agreement and other supporting transaction documentation.

Labor and Employment

  • Strategically avoided major damage to the brand and reputation of a large U.S. retailer by aggressive and discreet representation of the company and a C-Suite executive in confidential mediation and negotiation of harassment and retaliation claims.
  • Following expedited discovery and a preliminary injunction hearing, obtained a decision on behalf of a global packaging company that restrictive covenants in an agreement with a manufacturing company did not prevent a newly hired employee from starting.
  • Conducted an internal investigation for a nationwide consumer brands client involving highly sensitive allegations of racist/sexist conduct by senior executives.

Key Contacts