Proskauer on Advertising Law
Proskauer on Advertising Law

Category Archives: Deceptive Trade Practices

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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

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

A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing mislabeled yarn lacked standing to bring a Lanham Act false advertising claim. Knit With v. Knitting Fever, … 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

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no surprise that a California state appellate court recently rejected attempts by several plaintiffs to impose different … Continue Reading

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of Procera AVH, a dietary supplement that allegedly combats memory loss and cognitive decline, of … 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

Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit

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

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

Tripping the Light Cran-tastic: Ocean Spray Washes Away Attempted Class Certification

Class certification in false advertising cases often fails due to problems with the class itself such as ascertainability. But what happens when a class action plaintiff admits she didn’t rely upon the purportedly deceptive claims in making her purchasing decision? A recent decision in California’s “food court” may provide an answer. In Major v. Ocean … Continue Reading

False Advertising Suit Concerning Department of Defense Standards Misfires

In a case that teaches important lessons about the burden of proving an advertisement false at trial, Judge Ronald Lew of the Central District of California held that Elkay Plastics Company was not liable for allegedly false statements that its StratoGrey line of polyethylene products meets military specifications. In 2012 Caltex Plastics sued Elkay arguing … Continue Reading

Nutritious and Judicious: Nutribullet Blender False Ad Claim Survives Attack from Ninjas and Phantom Reviewers

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

No Longer at Lager-Heads: Anheuser-Busch Settles Claim over Kirin Beer’s Origin

Early this year, Anheuser-Busch settled a class suit filed against it by two Miami residents who alleged that the company was deceptively advertising Kirin beer as imported from Japan, when in fact it is brewed in the United States using domestic ingredients. The plaintiffs, Lady J. Suarez and Gustavo E. Oliva, claimed they had each … Continue Reading

Consumer Class Actions Brewing in Florida as Federal Courts Deny a Series of Motions to Dismiss

While California historically has a reputation as the most plaintiff-friendly forum for alleged consumer class action deceptive advertising cases, Florida is emerging as stiff competition for the title after a recent trio of orders denying motions to dismiss consumer fraud actions emerged out of the United States District Court for the Southern District of Florida. … Continue Reading

Wasted Away in Margaritaville: With Unascertainable Class, District Court Denies Class Certification in Skinnygirl Margarita Case

Alleging violations of Illinois statutory and common law, Amy Langendorf brought suit on behalf of “Any and all persons who purchased ‘Skinnygirl’ Margarita spirits in Illinois from March 1, 2009 until the date notice is disseminated” against Skinnygirl Cocktails, LLC, Bethenny Frankel, SGC Global, LLC, and Beam Global Spirits & Wine, Inc. According to Langendorf, … Continue Reading

Lawful Waffle: California Courts Dismiss “Natural” Food False Ad Claims

Two California courts have recently dismissed false advertising claims concerning the marketing of food products as “natural,”  marking a departure from the trend in consumer class actions in that state.  In Richards et al. v. Safeway, Inc., 13-cv-04317, the plaintiff alleged that Safeway falsely labeled its Open Nature 100% Natural Multi-Grain Waffles and Open Nature … Continue Reading

California Court Has a Bone to Pick with Male Enhancement Pill Maker

We try to avoid puns in this blog but sometimes, well, we just can’t help it. The makers of “Rockhard Weekend,” a male sex enhancement pill, have successfully sidestepped a claim that they violated federal drug labeling laws but will have to continue to defend against claims that the product’s labelling misleads consumers into believing … Continue Reading

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

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

Two Consumer Class Actions Settle for (Mostly) Nominal Amounts Per Plaintiff

Two recent false advertising class action settlements illustrate some of the myriad ways to structure settlements, and also reflect the real risks of these lawsuits when early-stage efforts to dismiss them are unsuccessful. In Reid et al. v. Unilever United States, Inc., No. 12-C-06058 (E.D. Ill.), plaintiffs sought to recover from economic and personal injuries … Continue Reading

L’Oréal Smooths Things Over With FTC, Reaches Proposed Settlement Regarding Anti-Aging Claims For Its Skin Care Products

On June 30, the Federal Trade Commission announced that it had reached a proposed settlement with L’Oréal USA, Inc. related to the Commission’s investigation of anti-aging claims made in advertisements for Lancôme Génifique and L’Oréal Paris Youth Code products. In its complaint, the FTC asserted that L’Oréal falsely represented that the products in these two … Continue Reading

Federal Judge Trims Diet Supplement Maker’s Earnings by $40M and Orders Recall of Banned Labeling

On May 14, a Georgia federal court dished out severe contempt sanctions against Hi-Tech Pharmaceuticals, its president and two others for violating a 2008 court order relating to the advertising and labeling of Hi-Tech’s “diet supplements.”  In addition to ordering a recall, the court also ordered the Hi-Tech defendants to disgorge not only their profits … Continue Reading

Third Circuit to Putative Class Action Plaintiffs: No Receipt, No Class Cert

On May 2nd, the Third Circuit declined to rehear en banc its 2013 decision to reverse class certification in Carrera v. Bayer Corp, which created a big hurdle for would-be plaintiffs bringing suit in New Jersey, Pennsylvania and Delaware who fail to keep records of their retail purchases. In Carrera, the plaintiff brought what was … Continue Reading
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