Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: California

FTC and DeVry University Settle False Advertising Claims for $100M

In December 2016, DeVry University agreed to pay $100 million to settle a lawsuit with the Federal Trade Commission (FTC) over allegations stemming from DeVry’s advertising about the employment rates and salaries of its graduates. According to the FTC press release announcing the settlement in FTC v. DeVry Educ. Group in the district court for … Continue Reading

California Court Issues Surprising Decision in Discount Advertising Case

On December 15, 2016, the California Court of Appeals in Los Angeles came to a surprising summary judgment decision in Sajid Veera et al. v. Banana Republic, LLC.  The court held that plaintiffs who claimed they were misled by 40% off signs raised a triable issue of whether they suffered an injury-in-fact even though they … Continue Reading

Standing to Assert Injunctive Relief is Not in the Tea Leaves, Court Says

In Lanovaz v. Twinings North America, Inc., Judge Whyte of the Northern District of California recently decided that the plaintiff lacked standing to pursue injunctive relief, and granted summary judgment for defendant Twinings.  The class action alleged that Twinings tea products were misbranded under California law as “natural source[s] of antioxidants.”… Continue Reading

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling (discussed previously, here) concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged Foods, LLC, No. 14-17480, 2016 WL 5539863 (9th Cir. Sept. 30, 2016). The appeals court reversed the lower court’s … Continue Reading

California District Court Unplugs Duracell False Advertising Suit

Recently, Judge Lucy H. Koh of the Northern District of California dismissed a putative class action claiming that Procter & Gamble and Gillette deceptively advertised Duracell Coppertop AA and AAA batteries. Defendants advertised the batteries as having “Duralock Power Preserve Technology,” which, according to the challenged advertising, made them “GUARANTEED for 10 YEARS in storage.”  … Continue Reading

California Supreme Court Holds Organic Labeling Suit a Natural Fit in State Court

In December, the California Supreme Court held that a challenge to a farm’s labeling of its herbs as “organic” under state false advertising laws is not preempted by the federal Organic Foods Production Act of 1990 (“Organic Foods Act”). Although the Defendant, Herb Thyme Farms, Inc., typically used conventional herb-growing methods, one of its farms … Continue Reading

When it Comes to Arbitration Agreement Class Action Waivers, Concepcion is Still the Law, Even in California.

In 2014, we blogged about a California state appellate court decision invalidating the arbitration clause in DIRECTV’s consumer contracts. We found that California decision to be noteworthy because it seemed to fly in the face of the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. 333, 352 (2011), which invalidated California’s ban … Continue Reading

Snack Time: Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive

Last month, the Northern District of California held that prominent photographs of fruits and vegetables on Plum Organics’ food packaging were not enough to mislead a reasonable consumer into believing that the pictured produce were the product’s predominant ingredients. A picture on food packaging may speak a thousand words but, according to the court, reasonable … Continue Reading

Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception

On November 3, 2015, Judge Alsup of the Northern District of California denied Cricket Wireless’s motion to enforce an arbitration clause against customers who say they never saw or agreed to the clause. Plaintiffs allege that Cricket falsely advertised “UNLIMITED 4G/LTE services throughout the United States” when the network was capable of providing that coverage … Continue Reading

Staying Natural: Hain Label Dispute Must Wait for Ninth Circuit Decisions

A district judge in the Northern District of California pressed pause on a mislabeling suit involving “natural” claims pending the outcome of two Ninth Circuit appeals. Astiana v. The Hain Celestial Group, Inc., et al., No. 11-cv-06342 (PJH) (N.D. Cal.) is a putative class action in which the consumer plaintiffs alleged that Hain misleadingly labeled … Continue Reading

With Circuits Mis-Aligned, Sixth Circuit Stays Class Certification Pending Appeal

As our readers may remember, Procter & Gamble (“P&G”) stomached a loss last August when the Sixth Circuit affirmed certification of a false advertising class action regarding P&G’s Align probiotic supplement. But on October 27, the Sixth Circuit stayed its decision pending P&G’s petition for certiorari to the Supreme Court. As discussed below, P&G contends … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

For plaintiffs concerned that the Fourth Circuit Court of Appeals’ June 19, 2015 decision in Brown v. GNC Corp. signaled the muscling in of a stricter new pleading standard for false advertising class actions nationwide, a recent ruling out of the Central District of California likely acted as a pacifier. On July 14, 2015, U.S. … Continue Reading

Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

A recent Sixth Circuit decision that affirmed certification of a multi-state consumer class action asserting false advertising claims concerning Align – a Proctor & Gamble probiotic product promising digestive health benefits – has left us with an uneasy feeling in the pit of our stomachs. In Rikos v. P&G, the judge writing the opinion of … Continue Reading

Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit

In another blow to the class action plaintiff’s bar, a court in the Southern District of California has dismissed a false advertising class action against Maker’s Mark for describing its product as “handmade.” We recently covered a similar case involving the same bourbon and “handmade” claim in the Northern District of Florida, which was also … Continue Reading

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no surprise that a California state appellate court recently rejected attempts by several plaintiffs to impose different … Continue Reading

Tailoring the Suit: Plaintiffs File Amended Complaint in Nordstrom Rack Price-Tag False Advertising Lawsuit

Nordstrom Rack has recently found itself at the center of an unwelcome suit over its labeling practices. Nordstrom Rack discloses the savings it offers customers by placing “compare at” labels on its price tags which show two prices: the “compare at” price and a lower, actual sale price. A recent class action filed in the … Continue Reading

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

Although consumer class actions in California are dime-a-dozen, a recent Northern District of California case involving One A Day vitamins stands out because it demonstrates how federal regulations can preempt certain state law claims regarding the health benefits of dietary supplements. The putative class alleged that three statements made by Bayer on their One A … Continue Reading

Tripping the Light Cran-tastic: Ocean Spray Washes Away Attempted Class Certification

Class certification in false advertising cases often fails due to problems with the class itself such as ascertainability. But what happens when a class action plaintiff admits she didn’t rely upon the purportedly deceptive claims in making her purchasing decision? A recent decision in California’s “food court” may provide an answer. In Major v. Ocean … Continue Reading

False Advertising Suit Concerning Department of Defense Standards Misfires

In a case that teaches important lessons about the burden of proving an advertisement false at trial, Judge Ronald Lew of the Central District of California held that Elkay Plastics Company was not liable for allegedly false statements that its StratoGrey line of polyethylene products meets military specifications. In 2012 Caltex Plastics sued Elkay arguing … Continue Reading

Made in the USA?: Suit Against Nordstorm Alleging Misleading Jeans Labels May Proceed

How much of a product has to be “Made in the USA” for a company to label it as such, and who gets to decide? Those questions are raised by an ongoing class action lawsuit before a federal court in the Southern District of California. In Paz v. AG Adriano Goldschmied, Inc., plaintiffs allege that Nordstrom … Continue Reading

(Baby)Food for Thought: In Alleging Unlawful and Misleading Product Labeling, Plaintiff Needed More Than One Gerber Baby

Last month, Judge Lucy H. Koh of the Northern District of California granted summary judgment in favor of Gerber because the plaintiff failed to satisfy the “reasonable consumer standard” in backing up her allegations that Gerber baby food labeling was misleading in violation of California state law. The case illustrates an important threshold to the reasonable … Continue Reading

Lawful Waffle: California Courts Dismiss “Natural” Food False Ad Claims

Two California courts have recently dismissed false advertising claims concerning the marketing of food products as “natural,”  marking a departure from the trend in consumer class actions in that state.  In Richards et al. v. Safeway, Inc., 13-cv-04317, the plaintiff alleged that Safeway falsely labeled its Open Nature 100% Natural Multi-Grain Waffles and Open Nature … Continue Reading
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