Jennifer Yang
Partner
Jennifer Yang is a partner in the Litigation Department. She is a skilled commercial litigator specializing in false advertising and other intellectual property disputes, including Lanham Act and consumer class action false advertising litigation, advertising challenges before the National Advertising Division (NAD) and National Advertising Review Board (NARB) as well as trademark, trade secret and copyright litigation. Jen represents clients in a variety of industries, including medical device companies, consumer products companies, cosmetics companies, food and beverage companies, fashion retailers, sports, entertainment and art foundations.
Jen regularly defends clients in threatened and filed consumer class actions. She has successfully helped clients defend cases around the country involving core product performance claims, ingredient claims, slack fill allegations, environmental and other ESG-related claims, pricing disputes, health claims, and allegations of undisclosed PFAS and other contaminants. Jen has extensive experience litigating matters involving foods, drugs, medical devices, dietary supplements and cosmetics, and is proficient on the impact of the regulatory frameworks governing these products on consumer class action defense.
Jen also frequently represents both plaintiffs/challengers and defendants/advertisers in competitor Lanham Act cases and challenges before NAD and NARB. She brings her deep experience in litigation strategy and subject matter expertise to each case to achieve the best possible outcome for her clients.
A core part of Jen’s practice includes counseling clients on advertising and claim substantiation. She leverages her expertise in NAD, regulatory guidance (including the FTC Endorsement Guides, Green Guides and Negative Option Rule), state consumer protection statutes and consumer class action trends to work closely with clients and their marketers to help develop compelling marketing campaigns and messaging while minimizing legal risk. Jen also partners with clients’ R&D teams to help develop robust claim substantiation in accordance with best legal practices, including clinical studies, in vitro testing, sensory studies, home use tests, and consumer and expert surveys.
Jen is a regular speaker at ANA’s Masters of Advertising Law Conference, and is an author and editor of Proskauer’s advertising law blog, Proskauer on Advertising.
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The Ninth Circuit recently upheld a decision granting a motion to dismiss a putative class action challenging the accuracy of “natural” labeling on soap products made by Grisi Mexico, where the lawsuit was filed against the manufacturer’s U.S. subsidiary and distributor, rather than against the manufacturer itself. Prudencio v. Midway Importing, Inc., No. 19-55150, 2020 … Continue Reading
In a putative class action concerning Experian’s marketing of its “Experian Credit Score” service, the Ninth Circuit recently affirmed a lower court order granting Experian’s motion to compel arbitration based on an arbitration clause in its terms and conditions. That arbitration clause also included a class action waiver, thus effectively barring plaintiff from bringing her … Continue Reading
In a dispositive decision during a bench trial, federal district court Judge Nora Fischer of the Western District of Pennsylvania found that the FTC failed to present any credible expert testimony to support its suit for false advertising, and entered judgment for Defendant Innovative Designs (“IDI”). FTC v. Innovative Designs, No. 16-1669 (W.D. Pa. Sept. … Continue Reading
Recently, in a split decision, the Eleventh Circuit reversed a district court’s incentive award to the named plaintiff in a class action alleging willful violations of the Telephone Consumer Protection Act. In doing so, it may have rung the death knell on class action incentive awards in that Circuit. Dickenson v. NPAS Solutions, No. 18-12344 … Continue Reading
A split Ninth Circuit panel recently overturned a $24 million judgment in a class action lawsuit against Kimberly-Clark and its spinoff, Halyard Health. Bahamas Surgery Center v. Kimberly-Clark et al., No. 18-55478 (9th Cir. July 23, 2020). Plaintiff class representative Bahamas Surgery Center accused the defendants of misrepresenting the effectiveness of their surgical gowns at … Continue Reading
We previously blogged about the dismissal without prejudice of a putative consumer class action alleging that the well-known confectioner Ghirardelli misled consumers into believing its “Premium Baking Chips Classic White Chips” contained white chocolate. Last month, Judge Phyllis J. Hamilton of the Northern District of California once again dismissed plaintiffs’ claims against Ghirardelli – this … Continue Reading
The Ninth Circuit recently affirmed the dismissal of a putative class action alleging that defendant Dr Pepper/Seven Up, Inc. (“Dr Pepper”) violated various California consumer fraud laws by using the term “diet” in naming and marketing Diet Dr Pepper. Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). Plaintiff alleged that this … Continue Reading
The Association of National Advertisers and the Brand Activation Association will be hosting their 41st annual Marketing Law Conference at the Marriott Marquis in San Diego, CA from November 4-6. Proskauer is a sponsor of the conference, and will be speaking on two separate panels. Lawrence Weinstein, the co-chair of Proskauer’s Intellectual Property Litigation Group and … Continue Reading
Last month, the Ninth Circuit sitting en banc affirmed, by an 8–3 vote, a nationwide class settlement of a multidistrict litigation against automakers Kia and Hyundai over alleged misrepresentations regarding certain vehicles’ fuel efficiency. In re Hyundai and Kia Fuel Economy Litigation, 15-56014 (9th Cir. 2019). The en banc decision overturned the controversial decision last … Continue Reading
Last month, a judge in the Southern District of California partially dismissed a putative class action against beverage company Bai Brands, LLC (“Bai”) and related defendants. Branca v. Bai Brands, LLC, No. 18-00757 (S.D. Cal. 2019). Plaintiff Kevin Branca filed this lawsuit against Bai, its parent company Dr. Pepper Snapple Group, Inc. (“DPSG”), the CEOs of … Continue Reading
Unlike a fine wine, a snack bar does not get better with age. Neither, apparently, does litigation. Last month, Judge William H. Pauley III in the Southern District of New York lifted a years-long stay in a lawsuit against KIND LLC concerning the allegedly false marketing of KIND snack products as “all-natural” and “non-GMO.” In … Continue Reading
On December 17, 2018, Judge Andrew J. Guilford in the U.S. District Court for the Central District of California granted defendant Unilever’s motion for summary judgment, dismissing all claims in a putative class action concerning St. Ives Apricot Scrub. Browning v. Unilever United States, Inc., 2018 WL 6615064 (C.D. Cal. Dec. 17, 2018). Plaintiffs alleged … Continue Reading
Our readers may recall that last year, the Supreme Court ruled that a plaintiff in a putative class action cannot subvert the discretionary nature of Rule 23(f) interlocutory review by voluntarily dismissing his case after denial of class certification to obtain an appeal from the denial of class certification as a matter of right. We … Continue Reading
In recent years, creative plaintiff-side class action attorneys in New Jersey have attempted to seek relief under the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), which allows for $100 in statutory damages per violation to “aggrieved consumers” when terms in certain contracts or other writings violate a “clearly established legal right of a … Continue Reading
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 … Continue Reading
The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit … Continue Reading
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
For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking those products did not contain sugar, including this failed putative class action against KIND. In May 2016, the … Continue Reading
The Food and Drug Administration has kindly permitted Kind LLC to use the term “healthy” on its snack bars again, but with the caveat that the term must only be used in text clearly presented as part of Kind’s corporate philosophy, and not as a claim about the products’ nutrient content.… Continue Reading
Hungry to prevent more companies from selling allegedly bogus weight loss products, the FTC has settled yet another false advertising suit against various sellers of diet pills, in a case similar to February’s Sale Slash settlement blogged about here. The FTC’s latest diet pill settlement enjoins distributors of the dietary supplement known as Pure Green Coffee … Continue Reading
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
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
Clarion Brands, LLC recently received an earful from the National Advertising Division (“NAD”) about its marketing of the dietary supplement Lipo-Flavonoid Plus. Clarion had been marketing Lipo-Flavonoid Plus with advertising that the NAD found reasonably conveys the message that the supplement substantially reduces or eliminates tinnitus and the symptoms of Ménière’s disease—conditions that affect an … Continue Reading
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
The Parent Trap: Ninth Circuit Affirms Dismissal of Complaint Against Advertiser’s Subsidiary and Distributor
By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Ninth Circuit Credits Arbitration Clause and Class Action Waiver in Experian Advertising Suit
By Lawrence Weinstein, Jennifer Yang and Bryant D. Wright on Posted in Class Actions, Deceptive Trade Practices
Court Gives Cold Shoulder to FTC’s False Advertising Claims Against Housing Insulation Company
By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Deceptive Trade Practices, Regulatory
Split Eleventh Circuit Panel Eliminates Incentive Awards for Class Representatives
By Lawrence Weinstein, Jennifer Yang and Bryant D. Wright on Posted in Class Actions
Split Ninth Circuit Panel Vacates $24M Judgment in Hospital Gown Advertising Class Action
By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Added Allegations of Consumer Survey Results Fail to Sweeten the Deal: Court Dismisses “White Chips” False Advertising Suit With Prejudice
By Lawrence Weinstein, Jennifer Yang and Eric Wertheim on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”
By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Proskauer in San Diego at the 41st Annual ANA/BAA Marketing Law Conference
By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Jennifer Yang on Posted in Events and Announcements
En Banc Ninth Circuit Reinstates and Clarifies Standard for Nationwide Class Action Settlement
By Lawrence Weinstein, Jennifer Yang and Carl Mazurek on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices
Justin Timberlake Waves Bai Bai Bai to Partially Dismissed “No Artificial Flavors” Beverage Mislabeling Suit
By Lawrence Weinstein, Jennifer Yang and Monique Curry on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Snack Bar Class Action Powers On After USDA Action and FDA Inaction
By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on Posted in Class Actions, Regulatory
Failure to Disclose Claims Washed Away in Facial Scrub Case
By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Supreme Court Briefing Begins Over Equitable Tolling of Rule 23(f) Deadline
By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on Posted in Class Actions
New Jersey Supreme Court Announces Last Call for TCCWNA Happy Hour
By Lawrence Weinstein, Jennifer Yang and Daniel Werb on Posted in Class Actions, Regulatory
#SocialMedia #Endorsement #Disclosures #Sponsored (notthispost): FTC Warns Social Media Influencers and Advertisers about Failure to Disclose Relationships
By Alexander Kaplan, Jennifer Yang and Tiffany Quach on Posted in Regulatory, Social Media
When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Regulatory
De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Labeling Claims, Regulatory
Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners
By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on Posted in Regulatory
“KIND” of Nutritious—FDA Permits “Healthy” Label and Agrees to Rethink Its Definition of “Healthy” Foods
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Regulatory
The FTC Trims the Fat Off Even More Companies Selling Weight Loss Products
By Alexander Kaplan, Jennifer Yang and Russell Kostelak on Posted in Deceptive Trade Practices
When it Comes to Arbitration Agreement Class Action Waivers, Concepcion is Still the Law, Even in California.
By Lawrence Weinstein, Jennifer Yang and James Unger on Posted in Arbitration Clause, Class Actions
Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception
By Lawrence Weinstein and Jennifer Yang on Posted in Class Actions
Can You Hear Me Now? NAD Finds Scientific Evidence Insufficient to Support Dietary Supplement’s Claims of Ear Discomfort Relief
By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in NAD/NARB/CARU/ERSP
Ruling Allows Gerber False Advertising Suit to Crawl Onward
By Alexander Kaplan, Jennifer Yang and James Unger on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
