Consumer Products and Retail

Awarded Law360 Food & Beverage Group of the Year. Recent representations include:

• Represented Nestlé USA in multiple lawsuits alleging various legal theories seeking to impose liability on the company based on the actions of third parties in the cocoa supply chain, including obtaining significant victories in separate cases in the D.C. Circuit and the U.S. Supreme Court.
• Prepared comments to the Department of Health and Human Services regarding deregulatory initiatives on behalf of a major food company.
• Represented Australia’s Remedy Drinks against trade mark claims that effectively sought to ban its kombucha products from the U.S. market, defeating a requested TRO and then achieving an amicable settlement that allowed both parties to coexist.
• Advised The Hershey Company in its acquisition of LesserEvil, a snack brand focused on organic ingredients.
• Successfully defended Kellanova in a first-of-its-kind lawsuit bringing claims against packaged-foods companies for allegedly causing harm through “ultra processed foods.”
• Represented multiple top food and beverage companies in parallel Department of Justice criminal and Food and Drug Administration regulatory proceedings related to alleged violations of the Food, Drug, and Cosmetic Act.
• After CytoSport obtained a preliminary injunction enjoining its competitor Vital Pharmaceuticals (VPX) from using the Muscle Power trademark, VPX brought a counterclaim that CytoSport’s promotion of its Muscle Milk product constituted false advertising. Gibson Dunn obtained summary judgment, dismissing VPX’s false advertising claim, and negotiated a consent order converting the preliminary injunction against VPX’s Muscle Power product to a permanent injunction.
• Successfully defeated a Proposition 65 challenge to coffee industry, including an order affirming judgment on appeal and denial of plaintiff’s petition for certiorari.
• Advised multiple food and beverage companies about litigation and regulatory risks stemming from global supply chain issues.
• Represented multiple food and beverage companies in high-profile lawsuits brought under the Trafficking Victims Protection Reauthorization Act and toxic tort claims.
• Represented major food and beverage companies in more than 100 class actions in courts across the country challenging product labeling and marketing as false or misleading under state and federal consumer protection laws.

Recent representations include:

• Obtained dismissal of trademark infringement claims seeking millions of dollars in damages because of Kimberly-Clark’s alleged use of the plaintiff’s registered phrase in online advertising. Gibson Dunn initially filed a dispositive motion that severely curtailed the extent of plaintiff’s claims, and then pursued discovery that forced the plaintiff to admit at deposition that he could not meet his required burden of establishing a likelihood of confusion.
• Represented the founders of Mielle Organics in the company’s partnership with Proctor & Gamble Beauty.
• Represented consumer product manufacturers in separate DOJ criminal investigations and engagement with the Consumer Product Safety Commission.
• Represented leading consumer products retailers, manufacturers and other companies in class actions challenging corporate social responsibility and sustainability statements as false or misleading.
• Represented a leading consumer products retailer in a multidistrict litigation involving fourteen class actions challenging an alleged failure to disclose potential risks in connection with products.

Recent representations include:

• Obtained sweeping relief for Nike and Converse against a group of networks that included over 600 counterfeiting operations, including a judgment that totaled $3.388 billion, ongoing restraints of the defendants’ assets and sale of counterfeit products, and the transfer of all infringing domain names.
• Assisted with the acquisition of Neiman Marcus Group (parent company of Neiman Marcus and Bergdorf Goodman) by HBC (parent company of Saks Fifth Avenue).
• Defended Zara USA against multiple class-action lawsuits alleging mislabeling of prices on in-store items.
• Advised Eurazeo, a global investment firm, on the $200 million sale of its majority ownership of NEST New York, a fragrance lifestyle brand, to North Castle Partners, a small cap consumer private equity firm. The invested equity capital was expected to yield a return of approximately 2.7x.
• Obtained a landmark victory for the world’s largest retailer when the U.S. Supreme Court unanimously reversed class certification of the biggest employment discrimination class in history.
• The treatise Fashion Law and Business: Brands & Retailers, authored by three Gibson Dunn partners, has been described as the “‘go to’ guide” for understanding “legal issues involved with financing and operating a fashion company” and was named to Fashionista’s list of “The 21 Best Fashion Books of All Time, According to Professors.”

Recent representations include:

• Won a complete defense victory at trial for Fitbit in patent litigation brought by Philips at the ITC, defeating all the asserted patents and defeating a request for an exclusion order that would have banned substantially all Fitbit products from importation into the United States.
• Defeated a lawsuit seeking to impose liability against multiple major consumer-technology brands under the Trafficking Victim Protection Reauthorization Act based on alleged labor issues in the operations of indirect, third-party African suppliers of cobalt.
• Represented a major food-delivery service in multiple State Attorneys General investigations and litigation matters.
• Retained after a $500 million intellectual property jury verdict against Facebook and its subsidiary Oculus in the Northern District of Texas related to the sale of its Oculus Rift virtual reality gaming system. The court granted Gibson Dunn’s motion, cutting the damages award in half and denying plaintiff’s request for a nationwide injunction against the sale of the Oculus VR headset. As Gibson Dunn prepared to appeal the remainder of the verdict, the parties reached a confidential settlement.