Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Class Action

Beverage Mislabeling Suit Runs Out of Juice

On February 6, the California Court of Appeals (Second Appellate District) sustained a lower court’s dismissal of a putative class action alleging that the claim “no sugar added” on the label of tangerine juice is deceptive because it falsely implies that competing products do contain added sugar. Schaeffer v. Califia Farms, BC654207 (Cal. App. 2d … Continue Reading

The Fun Did Stop for Pringles False Advertising Class Action

On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).… Continue Reading

Gin Manufacturer Bacardi Avoids Lawsuit for Its Use of “Grains of Paradise”

A federal judge in the Southern District of Florida recently dismissed an action alleging that Bacardi’s use of a botanical called “grains of paradise” in its gin was “harmful and illegal,” holding that the statute on which the lawsuit was based was preempted by federal law. Marrache v. Bacardi U.S.A, 19-cv-23856 (S.D. Fla. Jan. 28, … Continue Reading

Ninth Circuit Confirms Dr Pepper Can Stick to its “Diet”

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

Hershey Kisses Chocolate Mislabeling Suit Goodbye

A California federal judge recently handed a victory to the Hershey Co. in a suit alleging the company falsely represented that its Brookside chocolate products have no artificial flavors. Clark v. Hershey Co., 18-cv-06113 (N.D. Cal. Nov. 15, 2019). U.S. District Judge William Alsup granted summary judgment in favor of Hershey on the basis of … Continue Reading

Food for Thought: Outcomes of Food Labeling Cases Prove Difficult to Predict

As we wrote recently, the past year has seen a proliferation of lawsuits alleging that food product labels mislead consumers about the product’s ingredients. The trend continued last month, with decisions from the Court of Appeals for the First Circuit and one of its district courts reaching different results on motions to dismiss complaints alleging … Continue Reading

Court Lets Trader Joe’s Out of Sticky Situation Over Honey Advertising

A magistrate judge in the Northern District of California recently dismissed a putative class action alleging that Trader Joe’s misled its consumers about the purity of its manuka honey.  Moore v. Trader Joe’s Co., No. 4:18-CV-04418-KAW, 2019 WL 2579219 (N.D. Cal. June 24, 2019). Plaintiffs commenced a putative class action lawsuit alleging that Trader Joe’s … Continue Reading

En Banc Ninth Circuit Reinstates and Clarifies Standard for Nationwide Class Action Settlement

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

Supreme Court Limits Removal of Class-Action Counterclaims

On May 28, the Supreme Court decided Home Depot U.S.A. v. Jackson, 17-1471 (2019), ruling 5–4 that third-party counterclaim defendants may not remove class actions from state to federal court. The decision, besides keeping in state court certain class actions that otherwise could be removed to federal court, is noteworthy for the highly unusual composition … Continue Reading

Suit Over Use of American Heart Association Certification Mark Maintains a Pulse

Is it deceptive to label food products with the mark of the American Heart Association (“AHA”) without disclosing that the AHA was paid for use of its certification mark? This was the question raised by a putative class action lawsuit in the Northern District of New York, which largely survived dismissal on March 25, 2019. … Continue Reading

Justin Timberlake Waves Bai Bai Bai to Partially Dismissed “No Artificial Flavors” Beverage Mislabeling Suit

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

Ninth Circuit Denies Review of Class Certification in Beer Labeling Brouhaha

In a 2-1 decision memorialized in a one-page order, a Ninth Circuit panel recently denied Kona Brewing’s request for leave to appeal a grant of class certification to a consumer class claiming that the company’s branding deceptively communicated the false message that Kona beer is brewed in Hawaii. Broomfield v. Craft Brew Alliance, No. 18-80145 … Continue Reading

Ninth Circuit Sends Brain-Booster Claim Case Back to District Court

After Ninth Circuit review, it remains to be seen whether a nutritional supplement maker can claim that ginkgo biloba leaf extract and vinpocetine supplements improve “alertness,” “mental clarity, and memory” in the face of contradictory scientific studies. In Korolshteyn v. Costco Wholesale, No. 17-56435 (2019), the Ninth Circuit reversed a district court order granting summary judgment in favor … Continue Reading

Snack Bar Class Action Powers On After USDA Action and FDA Inaction

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

If Class Action Litigants Could Turn Back Time (The Text Would Have Said So)

Last week, the Supreme Court unanimously reversed a Ninth Circuit decision, resolving a circuit split in ruling that Federal Rule of Civil Procedure 23(f)’s 14-day deadline for a losing party to file a petition for permission to appeal an order granting or denying class certification is not subject to equitable tolling. Nutraceutical Corp. v. Lambert, … Continue Reading

Kimberly-Clark Unable to Flush Wet Wipes Case

On December 10, 2018, the Supreme Court denied certiorari in Kimberly-Clark Corp, v. Davidson, No. 18-304 (2018), in which Kimberly-Clark sought to overturn a controversial Ninth Circuit decision allowing a plaintiff in a false advertising case to seek injunctive relief on behalf of an alleged consumer class notwithstanding that plaintiff’s complaint acknowledged she was aware … Continue Reading

Failure to Disclose Claims Washed Away in Facial Scrub Case

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

No Use Crying Over Spilled (Almond) Milk: Ninth Circuit Upholds Dismissal of Almond Milk Labeling Suit

On December 20, 2018, the Ninth Circuit affirmed the dismissal without leave to amend of a putative class action complaint against Blue Diamond Growers, which alleged that the term “almond milk” on Blue Diamond’s beverages was misleading. Painter v. Blue Diamond Growers, — Fed.Appx. —, 2018 WL 6720560 (9th Cir. Dec. 20, 2018). The named … Continue Reading

Cheez-Its Class Action Revived in “Whole” by Second Circuit

We recently blogged about the Second Circuit’s December 3, 2018 decision in Jessani v. Monini, where, applying the reasonable consumer standard, the Court of Appeals unanimously affirmed the dismissal with prejudice of a complaint alleging that the label of an extra virgin olive oil product advertised as “truffle flavored” falsely implied that the product contained … Continue Reading

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 … Continue Reading

No Meat on the Bones: Proposed Vegetarian Class Action against Buffalo Wild Wings Failed to Plead Actual Injury

Recently, a federal district court judge in the Southern District of New York dismissed claims asserted under New York General Business Law § 349 on behalf of a putative class of vegetarian customers of Buffalo Wild Wings. The court’s decision found that although the plaintiff had standing to bring her claims, her allegations did not … Continue Reading

No More Baby Talk: Class Certification Denied in Gerber False Advertising Suit

The Northern District of California recently denied class certification to a plaintiff who alleged that Gerber Products misbranded nutritional claims about baby food products in violation of state and federal labeling laws.  Bruton v. Gerber Products Co. et al.  The plaintiff had previously moved to certify a damages and an injunctive relief class in 2014.  However, … Continue Reading

Class Certification Denied in Juice Dispute

Recently, a New Jersey federal district court judge refused to certify a class of consumers claiming an orange juice product was mislabeled as “pasteurized.”  In re: Tropicana Orange Juice Marketing and Sales Practices Litigation. According to plaintiffs, Tropicana’s “Pure Premium” orange juice contained added natural flavoring in violation of FDA pasteurization standards.  The court denied the … Continue Reading
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