Q&A With Chris Cole – Advertising, Marketing & Branding

[Background]

Before law school, your academic history shows a strong
interest in science, with a bachelor’s degree in biology from
Yale University and a masters in marine biology from the University
of Miami. Why did you decide to pursue the legal
profession?

I grew up across from the marina and spent every free moment on
the water or next to it. That’s probably why I went to Miami to
study marine biology. It was predestined.

However, I always had a strong interest in public policy. My
interest in science – especially marine stuff –
motivated me to find ways to protect what I was studying. While
scientists are critical, so are lawyers and policymakers. I felt
I’d be a better lawyer than scientist at the end of the day,
and could probably have a bigger impact on what I cared about by
becoming a lawyer. I think that has been true and, for someone like
me who has pretty broad interests, it keeps me interested
perpetually.

Legal Practice

You have a varied practice that touches on multiple
industries. Tell us about your practice and the types of matters
you handle.

I can shorten it – I help companies say what they want to
say and protect themselves from those who would try to hurt them by
lying. In practice, my matters range from bringing and defending
false advertising lawsuits (whether competitor lawsuits or class
actions) to advising companies on how best to communicate and
support their product claims. Along the way, I have become a sort
of “Mr. Fix-It,” helping companies navigate complicated
regulatory issues about their (or competitors’) communication
issues that don’t necessarily fit neatly into a single bucket.
More recently, that has involved a lot of environmental, social and
governance (ESG) work, which is a quintessential interdisciplinary
topic.

Have the skills you developed through your scientific
studies contributed to your practice, in terms of helping
understand and address some of the technical aspects of your
cases?

Many lawyers are technophobes, which is too bad. I was trained
from undergraduate into graduate school on how to read scientific
studies, the fundamentals of “good science,” and in
statistics. All of these things are crucial to any science-based
case, whether advertising, patent or even economics. Another thing
that has helped me is that I truly like and appreciate scientists,
who are often our experts. Experts are people too! I get along with
them and am typically viewed on any case team as a sort of
“expert whisperer.” The most important characteristic is
to be curious about everything – don’t be afraid to ask
even seemingly stupid questions and let them teach you.

Many of your clients are big-name brands that are
featured on ads that are widely seen by the general public. Is
there a matter that stands out for you because of its impact on
other advertising-related cases or disputes?

Some of the big false advertising Lanham Act cases that I have
been involved in have made law that has been important to industry
in general and this area of the law in particular. For example, in
a variety of cases for AT&T, we have established the industry
rules governing how to communicate properly about coverage,
reliability and data speed performance – all of which are
used in just about every ad you see for a phone or cable company
these days. For Molson Coors (and Miller Brewing before it), we
have established some law that cements liability for literally
false claims, even ones that are corrected pretty quickly.

I have also been quite active in the American Bar
Association’s (ABA) Antitrust Law Section, which is a venue for
thought leadership in the area, that brings together a
“who’s who” of practitioners, scholars and
regulators. I have written chapters on Lanham Act law and on claims
substantiation for leading ABA treatises. I also work closely with
one of the world’s leading experts on sensory substantiation
(for example, “tastes better” claims) and, through a
course sponsored by the expert, together we have helped train about
a decade’s worth of professionals in the field on claims
support and the law.

[Looking Ahead]

The advertising industry is an ever-changing landscape.
From your perspective, have laws and regulations kept up with
shifts in the industry? And do you anticipate any noteworthy legal
developments in this area in the upcoming year?

I love working in this area because it is dynamic and relevant
to our everyday lives. However, the law always seems to be a step
or two behind this ever-changing landscape, which is perhaps
inevitable when you have all of these talented, creative and
imaginative people working to advance business. So, part of what we
try to do is peer around corners and anticipate risks for our
clients.

In terms of what to expect in 2023, my best guesses include the
following:

• Class actions will continue to increase, which will touch every
  consumer-facing industry.




• The Federal Trade Commission (FTC) will become even more
  aggressive, seeking to publish new rules and bring new enforcement
  matters as the FTC eyes a potential change of administration in
  2024 and tries to rush as much through as it can in the next two
  years.




• There are likely to be changes to Section 230 of the
  Communications Decency Act, which broadly speaking immunizes
  internet platforms from liability relating to the posting of
  user-generated content. This question takes on added urgency given
  the political importance of Twitter, Facebook and Instagram, among
  others.

Brands and companies are increasingly prioritizing ESG
initiatives, which is an area in which you have considerable
experience. What ESG-related issues are you seeing in the
advertising industry and, looking ahead, what emerging issues do
you foresee?

The FTC will be updating its Green Guides in 2023 and 2024.
Those are fundamental to the ad industry. I expect we will see at
least changes to definitions of “recycling,” “carbon
offsets” and “sustainability.” Further, companies
relying on carbon offsets for support of their net-zero pledges
need to pay close attention, as that will be closely reviewed by
the FTC and others.

The number of ESG-related class actions continues to tick up. I
predict we will see many more in 2023, as the rules of the road are
in flux.

[Personal Side]

Your father, Richard Cole, was a longtime executive in
the fashion industry. Notably, in the late 1960s, he was named
president of Lady Manhattan, where several top designers got their
start, including Donna Karan, Tommy Hilfiger, Halston and Perry
Ellis. Did your father share any lessons from his profession that
have influenced your career path and practice through the
years?

My dad spent a career in the fashion industry and indeed married
a model (Ms. Sweden), my mother, Birgitta, who is still alive
today. Of the many things I admired about my father was his
dedication to honest-dealing and integrity, and his early and broad
acceptance of people in the industry who were LGBTQ. He was an
early proponent of equality for everyone, even though he came from
a generation that largely didn’t agree with that.

In my early years in the law, I would visit our New York office
and always have lunch with my dad in the Garment District. It
struck me how he seemed to know everyone by name, and they knew him
– from the guy pushing the rack of clothes down Broadway to
the waiter in the little Chinese restaurant we would always visit.
He prided himself on knowing the guys on the loading dock who could
tell him whether the shipment was really on time, and if not,
exactly why not. It’s trite, but that always impressed on me
the importance of appreciating the contributions of everyone, not
just the top of the company.

What are your passions outside the office?

I am an avid amateur chef. What can I say, I like to eat. And,
to work off that food, I am a workout fiend and dedicated squash
enthusiast. I have three boys, all of whom are in college or just
graduated. I love seeing how they are flourishing into adults.

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