Strategic Partners Inc. v. Figs Inc. et al.

When a major maker of medical scrubs took a newer competitor to court on charges of false advertising, the defense attorneys set out to show more than that their clients' ads were truthful. They convinced the jury that the old-school company was really trying to use litigation to squash its upstart.

"We think this was really a pretty textbook example of competition by litigation, an industry incumbent filing a lawsuit to snuff out a challenging and successful competitor," said the defendant's co-lead counsel, Adam B. Weiss. "That became increasingly clear as the case went on, that that was really a pretext."

Adam B. Weiss

Weiss's client is FIGS Inc., which he described as a disruptive company selling its clothing directly to consumers online. FIGS' scrubs are "attractive, tailored, well-fitting, fashion-forward, stylish scrubs that [make customers] feel empowered as medical professionals in a way the old, boxy, scratchy scrubs never did," he said. Plaintiff Strategic Partners Inc. sells those old scrubs, he said.

In its Lanham Act lawsuit, the older company said the defendant's ads claiming antimicrobial and water-resistant qualities for its scrubs were not true. It also claimed FIGS didn't really donate a set of scrubs for every item it sold, as some ads said. Strategic Partners Inc. v. FIGS Inc., 2:19-cv-02286 (C.D. Cal., filed March 27, 2019).

"Their theme was don't believe anything they tell you," said defense attorney Jacob Kreilkamp. That included statements by the two young women who founded FIGS about how they created the company, he said.

Mona Hanna and Marc Jacobs, two of Strategic Partners Inc.'s lead attorneys, did not reply to an email seeking comment on the case.

Ekwan E. Rhow

The allegations against the founders weren't hard to refute, Kreilkamp said. "When you have two people who are honest being accused of something like that, ... you just put them in front of the jury and you show them who they really are."

Countering the allegations about FIGS' ads was straightforward as well. The attorneys put in evidence showing the claims in the ads were true and not deceiving customers.

They also had an "unclean hands" defense. Weiss said they showed the jury marketing materials from Strategic Partners making identical claims about bacterial and water resistance for its scrubs. In fact, the two companies use the same Dow-manufactured antimicrobial treatment, he said.

"When you're able to put a video up of the CEO of the company ... making almost identical claims, that's something that gets the jury to perk up," Weiss said.

Ultimately, the defense strategy was to attack the plaintiff's credibility, said FIGS attorney Ekwan Rhow. The defense team presented emails from its CEO showing that Strategic Partners was looking for ways to attack the young competitor even before FIGS became successful.

The goal was to show the jury that the litigation "was all pretextual, that this was really a way to stop a startup," Rhow said.

The litigation is now in the post-trial motion stage, while Judge George H. Wu considers the plaintiff's equitable causes of action.

-- Don DeBenedictis