Proskauer on Advertising Law
Proskauer on Advertising Law

Supreme Court Briefing Begins Over Equitable Tolling of Rule 23(f) Deadline

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 blogged about that decision here. Earlier this summer, the Supreme Court granted certiorari in yet another Ninth Circuit case involving Rule 23(f) interlocutory review. On August 20th, petitioner Nutraceutical Corp. filed its opening brief urging the Court to rule that district courts cannot equitably toll Rule 23(f)’s fourteen-day time period in which a party must seek immediate interlocutory review of an order denying or granting class certification. Continue Reading

Court Puts “FDA-Cleared” Complaint on Ice

The Central District of California recently dismissed, for the second time, a putative class action filed by two plaintiffs who claimed to have purchased Zeltiq Aesthetics, Inc.’s “CoolSculpting” fat-reduction treatments under the allegedly mistaken belief that the treatments had been “approved,” not just “cleared,” by the U.S. Food and Drug Administration. Continue Reading

Ninth Circuit Puts Restitution Claims to Rest in Discount Advertising Case

The Ninth Circuit recently addressed once again the common practice in outlet stores and other retail establishments of juxtaposing the price at which a fashion item is offered for sale with a higher price advertised as a former price, or as the supposed market value, of that item.  Chowning v. Kohl’s Dep’t Stores, 2018 WL 3016908, (9th Cir. 2018).  The most recent previous Ninth Circuit decisions addressing discount price advertising concerned the adequacy of pleadings at the motion to dismiss stage, and thus had limited relevance to the merits of those cases or their ultimate outcomes. Continue Reading

Update: Second Circuit Affirms Dismissal of Lanham Act Claims Based on Allegedly False UL Certification

Last fall, we covered the Southern District of New York’s dismissal of Board-Tech Electronic Company’s Lanham Act false advertising claim.  Based on its own internal testing, Board-Tech alleged that light switches sold by its competitor, Eaton Corporation, were falsely labeled as complying with an Underwriters Laboratories (“UL”) certification standard.  However, the district court found that Board-Tech had not plausibly alleged that Eaton’s labelling was false because the product was in fact certified by UL. Continue Reading

Federal “Spring Water” Standards Runneth Over State Claims

We often cover cases in which false advertising claims brought under state law are challenged as preempted by a federal regulatory scheme.  Poland Spring was a recent target of state law false advertising claims, and successfully obtained the dismissal of those claims on the ground that they were preempted by federal statute.  Patane v. Nestle Waters N. Am., 2018 WL 2271161 (D. Conn. May 17, 2018). Continue Reading

Sixth Circuit Says T-bone Steaks and Salmon Filets on Pet Food Packaging Not Misleading

Last month, the Sixth Circuit held that photographs of “premium cuts” of meat on pet food packaging were not enough to mislead a reasonable consumer into believing that the kibble was made from these high-end ingredients.  Wysong v. APN, 889 F.3d 267 (6th Cir. 2018).

In 2016, Wysong Corporation, a pet-food manufacturer, sued six other pet-food manufacturers asserting that the packaging used by their competitors was deceptive under the Lanham Act because the lamb chops and other premium cuts depicted on the product packaging did not accurately represent the products’ actual ingredients—meat trimmings. Continue Reading

Lanham Act Injunction Floored Where Social Media Criticisms Were Not “Commercial Advertising”

A judge in the Western District of Wisconsin recently denied a motion for a preliminary injunction that sought to prevent a customer from criticizing the plaintiff’s products over social media.  Buckeye Int’l v. Schmidt Custom Floors, 2018 WL 1960115 (W.D. Wis. Apr. 26, 2018).  Plaintiff Buckeye sells floor finishing products, and defendant Schmidt is a flooring installer and refinisher.  Schmidt purchased Gym Bond, Buckeye’s floor finishing product, to facilitate the bonding of a clear topcoat to finished hardwood sports courts.  When the topcoat peeled off, Buckeye blamed Schmidt and refused to pay for repairs and refinishing.  Schmidt then complained about Gym Bond and Buckeye on social media, which caused Buckeye to sue Schmidt for false advertising under the Lanham Act and seek a preliminary injunction barring Schmidt’s social media postings about Buckeye and its product. Continue Reading

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