Proskauer on Advertising Law
Proskauer on Advertising Law

No Meat on the Bones: Proposed Vegetarian Class Action against Buffalo Wild Wings Failed to Plead Actual Injury

Recently, a federal district court judge in the Southern District of New York dismissed claims asserted under New York General Business Law § 349 on behalf of a putative class of vegetarian customers of Buffalo Wild Wings. The court’s decision found that although the plaintiff had standing to bring her claims, her allegations did not point to an “actual injury” sufficient to state a claim under section 349. Plaintiff has appealed. Continue Reading

No More Baby Talk: Class Certification Denied in Gerber False Advertising Suit

The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws.  Bruton v. Gerber Products Co. et al.  The plaintiff had previously moved to certify a damages and an injunctive relief class in 2014.  However, the court found that neither proposed class was ascertainable and denied class certification.  In July 2017, the Ninth Circuit reversed and remanded.  On remand, Judge Lucy Koh found that (i) plaintiff lacked Article III standing to assert a claim for injunctive relief and (ii) plaintiff’s proposed damages theories failed to satisfy Rule 23(b)(3)’s predominance requirement. Continue Reading

Class Certification Denied in Juice Dispute

Recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as “pasteurized.”  In re: Tropicana Orange Juice Marketing and Sales Practices Litigation. According to plaintiffs, Tropicana’s “Pure Premium” orange juice contained added natural flavoring in violation of FDA pasteurization standards.  The court denied the class certification motion because plaintiffs failed to prove that common issues predominated under Rule 23(b)(3) of the Federal Rules of Civil Procedure.  Since multiple named plaintiffs testified that they did not even see the word “pasteurized” on the product label, much less rely on it, class certification was put out to pasture. Continue Reading

New York Federal Court Latest to Dismiss Outlet Pricing Class Action

Last month, Judge Valerie Caproni of the Southern District of New York dismissed with prejudice a putative deceptive pricing class action filed against Burberry.  This is the first decision within the Second Circuit to determine whether shoppers claiming to have been victimized by discount price advertising in outlet stores have suffered actual injury for purposes of Article III standing.

During the past few years, there has been a virtual explosion of consumer class action lawsuits asserting claims against retailers for allegedly fraudulent outlet store price discount advertising.  The crux of these claims is that the retailer, through the use of “Was,” “MSRP,” “Compare at” or similar terms on price tags or in store signage, usually at outlet stores, has misled shoppers into believing they are getting a bargain, when they are not.  The lawsuits generally do not claim the items purchased were not worth the price paid for them. Continue Reading

Justice (and Lunch) is Served: Second Circuit Holds that Food Truck Branded with Ethnic Slurs is Entitled to First Amendment Protection

In a recently issued decision, the Second Circuit held that a food truck could not be excluded from a New York State lunch program solely because the truck and the food it sells was branded using ethnic slurs.  Wandering Dago, Inc. v. Destito et al.  This case is an early example of how the Supreme Court’s 2017 decision in Matal v. Tam (which involved an Asian-American band’s trademark application for “The Slants”) may impact advertisers who wish to engage in controversial branding in connection with a government-related activity or event. Continue Reading

New Trial Ordered Where Jury’s Verdict Didn’t “Gel”

Last summer, we reported on a bizarre verdict in which an Illinois jury levied a $150 million punitive damages award against AbbVie, Inc., the drug company behind AndroGel, without awarding any compensatory damages.  As predicted, the punitive damages award was recently vacated.  Finding that the jury’s findings were “logically incompatible,” the Court vacated the punitive damages award, and ordered a new trial on plaintiff’s claim for fraudulent misrepresentation and damages relating to that claim. Continue Reading

Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation as to the number of doses in the product. Cottrell v. Alcon Labs. The Third Circuit suggested that claims based on such a theory may be addressed in a 12(b)(6) motion, or on preemption grounds, but that such grounds are separate from a standing analysis. Continue Reading