Proskauer on Advertising Law
Proskauer on Advertising Law

Category Archives: Class Actions

Decisions and trends in false advertising class actions.

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Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?

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

Supreme Court: Class Action Plaintiffs Must Show ‘Concrete’ Harm to Satisfy Article III

In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff had alleged a particularized injury, and failed to assess whether the alleged injury was “concrete”.  Although Spokeo was … Continue Reading

Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align. Last August, a divided panel of the Sixth Circuit affirmed class certification. In October, the Sixth Circuit stayed its … Continue Reading

California District Court Unplugs Duracell False Advertising Suit

Recently, Judge Lucy H. Koh of the Northern District of California dismissed a putative class action claiming that Procter & Gamble and Gillette deceptively advertised Duracell Coppertop AA and AAA batteries. Defendants advertised the batteries as having “Duralock Power Preserve Technology,” which, according to the challenged advertising, made them “GUARANTEED for 10 YEARS in storage.”  … Continue Reading

New York Court Rules Rule 67 Deposit Cannot be Used to Pick Off Named Plaintiffs in Putative Diet Pill Class

Recently, a New York court held that a putative class action defendant’s depositing of funds sufficient to cover the full amount of a plaintiff’s individual claims does not moot the plaintiff’s case and therefore cannot be used as a vehicle to defeat the individual plaintiff’s attempt certify a class. This was the first attempt by … Continue Reading

Want to Settle Before Class Certification? The Supreme Court Raises the Stakes

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

True Green for True Blue: Blue Buffalo Promises $32 Million Settlement

Pet-food maker Blue Buffalo will pay $32 million to settle 13 consumer class action suits, the company announced last month. The 13 class actions—which pet owners originally filed in California, Connecticut, Florida, Illinois, Louisiana, Massachusetts, Missouri, New York, Ohio, and South Carolina federal courts—were consolidated in the Eastern District of Missouri in October 2014.  The … Continue Reading

SPF 70 Claims Blocked

A putative class action got burned at the certification stage earlier this month when U.S. Magistrate Judge Edwin G. Torres for the Southern District of Florida found that the proposed class failed to satisfy the ascertainability and typicality requirements. Plaintiff Nathan Dapeer sued Neutrogena, claiming that he and similarly situated consumers had been deceived by … Continue Reading

When it Comes to Arbitration Agreement Class Action Waivers, Concepcion is Still the Law, Even in California.

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

Snack Time: Court Finds Prominent Pictures of Produce on Fruit Snacks Not Deceptive

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

Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception

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

Staying Natural: Hain Label Dispute Must Wait for Ninth Circuit Decisions

A district judge in the Northern District of California pressed pause on a mislabeling suit involving “natural” claims pending the outcome of two Ninth Circuit appeals. Astiana v. The Hain Celestial Group, Inc., et al., No. 11-cv-06342 (PJH) (N.D. Cal.) is a putative class action in which the consumer plaintiffs alleged that Hain misleadingly labeled … Continue Reading

With Circuits Mis-Aligned, Sixth Circuit Stays Class Certification Pending Appeal

As our readers may remember, Procter & Gamble (“P&G”) stomached a loss last August when the Sixth Circuit affirmed certification of a false advertising class action regarding P&G’s Align probiotic supplement. But on October 27, the Sixth Circuit stayed its decision pending P&G’s petition for certiorari to the Supreme Court. As discussed below, P&G contends … Continue Reading

Ruling Allows Gerber False Advertising Suit to Crawl Onward

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

Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

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

Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit

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

Clarification for Class Action Settlements May Be on the Line As Supreme Court Grants Cert in TCPA Case

Last year, in Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), the U.S. Court of Appeals for the Ninth Circuit held that offers of complete relief made to individual plaintiffs under Fed. R. Civ. P. 68 do not moot either individual or class claims. This holding mirrors decisions by … Continue Reading

Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin Disclaimers

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern District of Florida. Marty et al. v. Anheuser-Busch Cos., 13-cv-23656-JJO (S.D. Fla.). Anheuser-Busch’s decision to settle the Beck’s suit … Continue Reading

Catch of the Day: Tuna Fish Brand StarKist Swims into a Sea of Trouble After Agreeing to Settle Claims Against It

StarKist Co. recently agreed in principle to a $12 million settlement with a putative class of plaintiffs concerning alleged under-filling of tuna fish cans. But agreeing on the dollar figure seems to have been the easy part; the parties in this bitterly-fought case have become embroiled in motion practice about the allocation of that $12 … Continue Reading

Maker’s Marketing: Bourbon Distiller Racks up “Handmade” False Advertising Victory

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

In Consumer Class Actions, Discovery is not Insured

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

A Court in the Sunshine State Blocks Injunctive Relief against Neutrogena Sunscreen Claims; Meanwhile P&G Cannot Flush Charmin Claims for the Same Relief in New York

Assume the following: plaintiff brings a putative class action under state consumer protection laws alleging that he bought a product based on false claims on its packaging. He seeks monetary and injunctive relief. However, plaintiff vows never to buy the product displaying the allegedly false advertising again or cannot purchase the product so-labeled because the … Continue Reading

Tomorrow is Another One-A-Day: FDA Guidelines Preempt Vitamin Claims, but Consumer Class Still Has Opportunity to Supplement

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
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