Russell Kostelak
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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 November 20, 2018, a years-long dispute before Judge Theodore Chuang in the District of Maryland over probiotics culminated in a gut-wrenching $18 million jury verdict against defendant pharmaceutical companies. The case is De Simone v. VSL Pharmaceuticals, Inc. et al., No. 8:15-cv-01356. The dispute involved numerous claims and counterclaims, including both a claim and a … 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
Recently, a plaintiff’s purported class action against Diet Dr. Pepper went flat when a California federal judge held that the term “Diet” alone on a soft drink label does not constitute a claim that the soft drink will assist in weight loss. In Becerra v. Dr. Pepper/Seven Up, Inc., Plaintiff Shana Becerra brought a putative … Continue Reading
Recently, the Ninth Circuit affirmed a district court’s dismissal of a putative class action claiming that Starbucks deceived its customers by under-filling the liquids in its iced drinks and adding ice to make the cups appear full. Forouzesh v. Starbucks Corp. The Ninth Circuit held that “no reasonable consumer would think (for example) that a 12-ounce … Continue Reading
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 … Continue Reading
In late July, an Illinois jury came to a bizarre verdict in a case over an alleged link between heart attacks and AndroGel, a gel product used for treating low testosterone (or “low T”). The jury found that AbbVie, Inc., the drug company behind AndroGel, although not strictly liable or negligent in allegedly causing a … Continue Reading
Recently, the Supreme Court in Microsoft Corp. v. Baker, 137 S. Ct. 1702 (2017), held that the plaintiff in a putative class action involving Xbox 360 game consoles could not appeal from the District Court’s denial of class certification after plaintiff voluntarily dismissed his claims with prejudice. While 28 U.S.C. § 1291 allows appeals from final … Continue Reading
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
The Second Circuit recently affirmed a district court’s grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by Abbott Laboratories under the “Freestyle” trademark. The decision is notable because the authentic test strips were identical to the gray-good versions. Read more here. *** Want to talk advertising? We welcome … Continue Reading
The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest. This post addresses Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 2016). As part of its ongoing monitoring program, NAD reviewed Intraceuticals’ advertising claims that … 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
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
When it comes to certain diet pills, perhaps the only things getting slimmer are the wallets of the companies that sell them. Those companies, including Sale Slash LLC, agreed to pay over $43 million in a settlement last month after the FTC alleged they violated provisions of the FTC Act and the CAN-SPAM Act. According … Continue Reading
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
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
$15 Million False Ad Verdict Boosts Damages In Probiotic IP Dispute
By Lawrence Weinstein, Daniel Werb and Russell Kostelak on Posted in Lanham Act
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
Diet Soda Lawsuit Fizzles Out
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Ninth Circuit Finds Grounds to Dismiss Iced Coffee False Advertising Suit
By Lawrence Weinstein and Russell Kostelak on Posted in Class Actions, Labeling Claims
New Trial Ordered Where Jury’s Verdict Didn’t “Gel”
By Lawrence Weinstein, Daniel Werb and Russell Kostelak on Posted in Deceptive Trade Practices
Jury Tests the Limits in AndroGel False Ad Verdict
By Lawrence Weinstein, Daniel Werb and Russell Kostelak on Posted in Deceptive Trade Practices
Game Over: Supreme Court Denies Plaintiff’s Class Certification Appeal after Voluntary Dismissal in Xbox 360 Lawsuit
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in Class Actions
FTC and DeVry University Settle False Advertising Claims for $100M
By Alexander Kaplan and Russell Kostelak on Posted in Deceptive Trade Practices, Regulatory, Uncategorized
Second Circuit Affirms Preliminary Injunction of “Identical” Gray Goods
By Brendan O'Rourke, Jeff Warshafsky and Russell Kostelak on Posted in Injunctions, Lanham Act
A Wrinkle in Time: Anti-Aging Advertising Claims Unsubstantiated by Testing Methods
By Lawrence Weinstein, Jeff Warshafsky and Russell Kostelak on Posted in NAD/NARB/CARU/ERSP
Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners
By Lawrence Weinstein, Jennifer Yang and Russell Kostelak 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
Companies to Pay Heavy Fine for Weight Loss Products
By Lawrence Weinstein and Russell Kostelak on Posted in Deceptive Trade Practices
Snack Time: Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive
By Alexander Kaplan and Russell Kostelak on Posted in Class Actions, Labeling Claims
