Proskauer on Advertising Law
Proskauer on Advertising Law

Game Over: Supreme Court Denies Plaintiff’s Class Certification Appeal after Voluntary Dismissal in Xbox 360 Lawsuit

Recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court’s denial of class certification after plaintiff voluntarily dismissed his claims with prejudice.  While 28 U.S.C. § 1291 allows appeals from final decisions as a matter of right, the Supreme Court held that plaintiff’s voluntary dismissal did not qualify as an appealable final decision.  The Court determined that allowing such an appeal would undermine § 1291’s finality principle and subvert the discretionary nature of interlocutory class certification appeals under Rule 23(f).  Gamers, in other words, could not be allowed to hack § 1291 in this way. Continue Reading

Eleventh Circuit Does Not Skim Over First Amendment Concerns in Labeling Milk

Be careful not to skim over potential First Amendment challenges to commercial speech regulations in labeling cases. By ‘whey’ of example, the Eleventh Circuit recently found that the actions of the Florida Commissioner of Agriculture and the Chief of the Florida Bureau of Dairy Industry violated Ocheesee Creamery LLC’s First Amendment rights related to the labeling of its products. Ocheesee Creamery LLC v. Putnam, 851 F.3d 1228 (11th Cir. 2017). Continue Reading

Court Dismisses “Phantom Markdown” Suit against Saks

Our colleagues at Proskauer’s commercial litigation blog, Minding Your Business, recently covered a dismissal of a discount advertising suit asserted against Saks. The case is Nunez v. Saks Inc., 2017 WL 1184058 (S.D. Cal. Mar. 22, 2017), and Proskauer’s coverage may be found here.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

#SocialMedia #Endorsement #Disclosures #Sponsored (notthispost): FTC Warns Social Media Influencers and Advertisers about Failure to Disclose Relationships

Recognizing the growing role of social media and influencers in marketing today, the Federal Trade Commission announced on April 19 that it sent more than 90 letters to social media influencers and marketing executives reminding them to disclose relationships between brands and endorsers when promoting products on social media.  Although the FTC has taken action against brands and marketers for endorsement-related violations before, the letters mark the first time the FTC has directly contacted influencers. Continue Reading

Foreign Importer Hanging by a Thread, but International Trade Commission Cuts It Off

The International Trade Commission recently issued a general exclusion order barring the importation of bed sheets with falsely advertised thread counts as a remedy for Section 337 violations.  The decision in In re Certain Woven Textile Fabrics and Products Containing Same demonstrates the potential reach of Section 337, which prohibits unfair practices related to the importation of foreign goods into the United States.  While violations ordinarily involve intellectual property infringement, the underlying unfair act can also include false advertising. Continue Reading

Fourth Circuit Tells District Court Not to Abstain in False Ad Holy War

At the heart of this unique Lanham Act case is a dispute between the Episcopal Church (the “Church”) and one of its “disaffiliated” districts, the Diocese of South Carolina (“Diocese”).  In 2012, led by its Bishop Mark Lawrence, the Diocese withdrew from the Church, but the Church did not recognize the withdrawal, and appointed Bishop Charles vonRosenberg to replace Bishop Lawrence as the head of the Diocese.  Lawsuits ensued, and the dispute raised an interesting question:  when a federal court confronts false advertising claims that are related to issues of intellectual property ownership that are being litigated separately in state court, should the federal court abstain from hearing the false advertising claims? Continue Reading

Larry Weinstein and Brendan O’Rourke Named to the Inaugural Class of the Legal 500 Hall of Fame

Larry Weinstein and Brendan O’Rourke, co-chairs of our False Advertising and Trademark Practice, were recently named to the inaugural class of the Legal 500 Hall of Fame.

This award honors individuals who have, according to Legal 500, received constant praise by their clients for continued excellence. The Hall of Fame highlights the law firm partners who are at the pinnacle of the profession. The criteria for entry is to have been recognized by The Legal 500 as one of the elite lawyers in their field for six consecutive years. Fewer than 500 partners across the entire United States were included in the inaugural Hall of Fame class.

Visit The Legal 500 Hall of Fame site to learn more.

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Want to talk advertising? We welcome your questions, ideas, and thoughts on our posts. Email or call us at lweinstein@proskauer.com /212-969-3240 or akaplan@proskauer.com /212-969-3671. We are editors of Proskauer on Advertising Law and partners in Proskauer’s False Advertising & Trademark practice.

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