Daniel Werb
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In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously affirmed orders by Judge Alison Nathan of the Southern District of New York, following a bench trial on liability, (i) holding that SPD … Continue Reading
Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.” Last month, the Ninth Circuit rejected plaintiff’s petition for rehearing en banc but also amended its earlier opinion. Though … Continue Reading
On January 20, 2016, the Supreme Court held in Campbell-Ewald v. Gomez, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016) that an unaccepted pre-certification settlement offer of complete relief in a putative class action, made to an individual plaintiff, does not moot that plaintiff’s claims. As discussed in our previous coverage of … Continue Reading
Dismissals of class action complaints with prejudice are not as common as dismissals with leave to replead, but a recent decision in the District of New Jersey illustrates the circumstances under which a dismissal with prejudice is appropriate.… Continue Reading
Last month, the FDA finalized amendments to the Nutrition Facts labeling rules for packaged foods and dietary supplements to reflect developments in nutrition science, including new scientific information regarding the link between diet and chronic diseases such as obesity and heart disease. Here are the highlights:… Continue Reading
Comparative advertisements can be powerful drivers of consumer purchasing decisions. However, such ads are also highly unpopular with the competitor that is the subject of the comparison, and therefore are among the most frequently challenged advertisements both in Lanham Act false advertising suits and at NAD. In this webinar, Proskauer partner Larry Weinstein discussed best … Continue Reading
Recently, the U.S. Supreme Court held in Campbell-Ewald Co. v. Gomez, a putative class action case, that an unaccepted pre-certification settlement offer to the named plaintiff does not moot either the plaintiff’s claim or that of the supposed class. The case involved a claim under the Telephone Consumer Protection Act (“TCPA”) and was decided on … Continue Reading
Proskauer’s New Media and Technology Law Blog recently provided a helpful summary of the FTC’s Enforcement Policy Statement on native advertising. Check it out here. *** 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 … Continue Reading
Consumer class action defendants in New Jersey state courts may be able to avoid costly discovery following a New Jersey state appeals court’s recent affirmance of a pre-discovery denial of class action certification in Myska v. New Jersey Manufacturers Co. The putative class alleged that the defendants violated New Jersey’s Consumer Fraud Act by improperly … Continue Reading
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
While courts may not officially be in the business of ghostbusting, a district court in California recently offered some support to a blender manufacturer apparently haunted by a phantom reviewer. The court found that negative internet reviews posted by the shadowy “Chris W” – who is allegedly a front for a competitor – can suffice … Continue Reading
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
Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously
By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption
Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California
By Lawrence Weinstein and Daniel Werb on Posted in Deceptive Trade Practices, Labeling Claims
Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?
By Lawrence Weinstein, Daniel Werb and Tiffany Woo on Posted in Class Actions
False Ad Claims Fail to Crystalize as Court Dismisses Amended Complaint against Sharp Electronics with Prejudice
By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, Deceptive Trade Practices
FDA New-trition Rules
By Alexander Kaplan and Daniel Werb on Posted in Regulatory
The Promise & Peril of Comparative Advertising — Webinar Held on May 17
By Daniel Werb on Posted in Events and Announcements
Want to Settle Before Class Certification? The Supreme Court Raises the Stakes
By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, Deceptive Trade Practices
FTC Issues Enforcement Policy Statement on Native Advertising in New Media
By Daniel Werb on Posted in Social Media
In Consumer Class Actions, Discovery is not Insured
By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Daniel Werb on Posted in Class Actions, Typicality Requirement
Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement
By Alexander Kaplan and Daniel Werb on Posted in Class Actions, Labeling Claims, Regulatory
Nutritious and Judicious: Nutribullet Blender False Ad Claim Survives Attack from Ninjas and Phantom Reviewers
By Lawrence Weinstein, John Browning and Daniel Werb on Posted in Deceptive Trade Practices, Lanham Act, Social Media
(Baby)Food for Thought: In Alleging Unlawful and Misleading Product Labeling, Plaintiff Needed More Than One Gerber Baby
By Daniel Werb, Lawrence Weinstein and Alexander Kaplan on Posted in Class Actions, Labeling Claims
