John Browning
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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
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
A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might still have reason to smile. Days before the settlement, the Southern District of New York rejected P&G’s motion … Continue Reading
In a decision that will interest distillers and hipster connoisseurs of artisanal beverages alike, a district court in the Northern District of Florida has decided that Maker’s Mark can describe its whiskey as “handmade” despite the fact that it is produced in industrial quantities to serve the national market. Accordingly, the court refused to allow … Continue Reading
Art is no stranger to great controversy, although the arbiters of art world disputes are usually critics and artists rather than federal judges. Nevertheless, in early March, Judge Denise Cote of the Southern District of New York was faced with a complaint accusing the Keith Haring Foundation of a range of violations – including antitrust, … 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
The Third Circuit has rendered a notable decision with important implications for the use of fine print in advertising. The Court held that small print statements that explicitly define the terms of a more prominent superior performance claim can render that performance claim unambiguous – and thus subject to a literal falsity claim – even if … Continue Reading
On July 29, the Second Circuit clarified its view that, in a two-player market, willfully deceptive advertising – even non-comparative advertising – creates a legal presumption of consumer confusion and injury, applicable to determination of both liability and damages. This emphatic opinion makes plain the peril that follows a finding that defendant willfully engaged in … Continue Reading
On July 2, 2014 Judge Vince Chhabria dismissed a class action alleging that Hain Celestial Group, a manufacturer of “raw” juices, misleadingly labelled and advertised its wares. This dismissal is noteworthy – and should stand as a cautionary tale – because the class plaintiffs eviscerated their own claims and pleaded themselves out of court by … Continue Reading
Farmville is a game that celebrates the digital harvest: players earn Farm Coins by diligently and systematically harvesting their virtual crops. Yet a different kind of digital harvest – the harvest of user data – was at the heart of two unsuccessful class action suits users filed against Facebook and Zynga. While the Ninth Circuit … Continue Reading
How private is private? This is the question at the heart of a putative class action recently brought against Facebook in Toronto. Plaintiff Lavinia Latham claims, on behalf of herself and up to 18-million similarly situated Canadians, that Facebook committed a number of privacy offenses by extracting information from users’ private messages without permission and using that … Continue Reading
Imagine this scenario: you’re a toothpaste start-up with six employees. You’re about to launch your new brand into an oral care market dominated by consumer products giants like Procter & Gamble (“P&G”) (the maker of Crest and Oral B products), and a federal judge has just enjoined you from selling or shipping 100,000 units of … Continue Reading
Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case
By Lawrence Weinstein, Alexander Kaplan and John Browning on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices, Typicality Requirement
Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit
By Lawrence Weinstein and John Browning on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit
By Lawrence Weinstein, Celia Cohen and John Browning on Posted in Deceptive Trade Practices, Injunctions, Labeling Claims, Lanham Act
Maker’s Marketing: Bourbon Distiller Racks up “Handmade” False Advertising Victory
By Lawrence Weinstein and John Browning on Posted in Class Actions, Labeling Claims
It’s a Complete Red Haring: Court Dismisses Wide Ranging Art-Authentication Lawsuit against Keith Haring Foundation
By Lawrence Weinstein and John Browning on Posted in Lanham Act
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
Third Circuit Irons Out “Powerful” Performance False Advertising Dispute
By Lindsey Olson, John Browning, Lawrence Weinstein and Alexander Kaplan on Posted in Injunctions, Labeling Claims, Lanham Act
What a Tangled Web We Weave, When First We Practice to Deceive: Second Circuit Holds that “Deliberate Deception” Creates Legal Presumption of Consumer Confusion and Injury in a Two-Player Market
By John Browning and Alexander Kaplan on Posted in Deceptive Trade Practices, Labeling Claims, Lanham Act
Cracking Under Pressure: “Raw” Juice Class Action down the Drain after Plaintiffs Cite Articles that Squeeze the Life out of their Complaint
By John Browning and Alexander Kaplan on Posted in Class Actions, Labeling Claims, Lanham Act
Social Media Class Actions Buy the Farm(Ville): Ninth Circuit Dismisses Consumer Claims Against Zynga and Facebook for Sharing User Information with Advertisers
By John Browning on Posted in Class Actions, Social Media
Get That Thing Out of My Face(book)! – Canadian Woman Brings Class Action Against Facebook in Ontario for Private Message Scanning
By John Browning on Posted in Class Actions, Social Media
When Life Gives You Lemons, Give Away Toothpaste: Hello Products Turns P&G Lawsuit Into Marketing Event
By John Browning and Victoria Loughery on Posted in Injunctions, Lanham Act
