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Mitigating Class Action Exposure Edward P. Boyle +1 212.808.5675 Roger A. Colaizzi +1 202.344.8051 Angel A. Garganta +1 415.653.3735 Daniel S. Silverman +1 310.229.0373 When it comes to mitigating the risk of class action lawsuits, the best offense is a good defense. Companies can take many steps to reduce their exposure to class action litigation before it happens, including the tactics listed below. Reducing Exposure to Class Action Litigation: • Carefully review and substantiate advertising and promotions prior to disseminating them. Hiring experienced advertising counsel is the most effective way to ensure that advertising comports with the complex legal requirements of various agencies and states. • Monitor and avoid competitors’ marketing practices that attract class action scrutiny. Consider setting up a service to notify your company when a competitor is sued, so that you can learn from their situation and avoid similar problems. • Enforcement actions by the Federal Trade Commission (FTC), Food and Drug Administration (FDA), state attorneys general, and self-regulatory bodies such as the Electronic Retailing Self-Regulation Program (ERSP) and the National Advertising Division (NAD) of the Better Business Bureau (BBB) are breeding grounds for class action litigation. Plaintiffs’ attorneys monitor these entities and often piggyback on their complaints and findings to bring substantively identical private class action lawsuits. By staying abreast of enforcement actions and conforming your advertising practices, you may avoid similar troubles. 44 / Venable