Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Class Certification

Judge Looks “Kind”ly Upon Certifying Class in Snack Bar Advertising Suit

By Lawrence Weinstein, Jennifer Yang and Alyson Tocicki on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices, Labeling Claims, Regulatory
In a recent opinion out of the Southern District of New York, Judge William H. Pauley III certified three classes of plaintiffs in New York, California, and Florida who allege that KIND LLC, the manufacturer of KIND Bars, deceptively marketed several products as “all natural” and “non-GMO,” even though they purportedly contain synthetic and genetically … Continue Reading

2020 Advertising Law Year in Review

By Lawrence Weinstein, Baldassare Vinti, Jeff Warshafsky, Jennifer Yang and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Lanham Act, NAD/NARB/CARU/ERSP, Regulatory
While 2020 was an eventful year in the world of advertising law, it feels wrong to begin any type of “year in review” without acknowledging the global events of this year, and the challenges they have brought to every individual in one way or another. In our role, we are often in a position of … Continue Reading

Split Ninth Circuit Panel Vacates $24M Judgment in Hospital Gown Advertising Class Action

By Lawrence Weinstein, Jennifer Yang and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
A split Ninth Circuit panel recently overturned a $24 million judgment in a class action lawsuit against Kimberly-Clark and its spinoff, Halyard Health. Bahamas Surgery Center v. Kimberly-Clark et al., No. 18-55478 (9th Cir. July 23, 2020). Plaintiff class representative Bahamas Surgery Center accused the defendants of misrepresenting the effectiveness of their surgical gowns at … Continue Reading

Burger King Wins “Whopper” of a Case: Federal Court Finds No Promise of Method of Preparation in Advertisements for Meatless Burger

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices
Judge Raag Singhal of the Southern District of Florida recently granted Burger King’s motion to dismiss a putative class action challenging its advertising for its plant-based “Impossible Burger,” and its motion to deny class certification. Williams v. Burger King, No. 19-24755 (S.D. Fla. July 20, 2020). Plaintiffs alleged Burger King’s advertisements for its non-meat “Impossible … Continue Reading

The Fun Did Stop for Pringles False Advertising Class Action

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

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

By Lawrence Weinstein, Jennifer Yang and Carl Mazurek on Posted in Class Actions, Commonality Requirement, Deceptive Trade Practices
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

Ninth Circuit Denies Review of Class Certification in Beer Labeling Brouhaha

By Lawrence Weinstein, Carl Mazurek and Ariella Muller on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

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

By Lawrence Weinstein, Carl Mazurek and Kelly Landers Hawthorne on Posted in Class Actions, Deceptive Trade Practices
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

By Lawrence Weinstein, Jeff Warshafsky and Aliza Hassine on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

By Lawrence Weinstein, Jennifer Yang and Marc Palmer on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

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
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 More Baby Talk: Class Certification Denied in Gerber False Advertising Suit

By Lawrence Weinstein, Jeff Warshafsky and Evelyn Pang on Posted in Class Actions, Labeling Claims
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

By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, Labeling Claims, Regulatory
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

New Jersey Supreme Court Announces Last Call for TCCWNA Happy Hour

By Lawrence Weinstein, Jennifer Yang and Daniel Werb on Posted in Class Actions, Regulatory
In recent years, creative plaintiff-side class action attorneys in New Jersey have attempted to seek relief under the Truth in Consumer Contract, Warranty and Notice Act (“TCCWNA”), which allows for $100 in statutory damages per violation to “aggrieved consumers” when terms in certain contracts or other writings violate a “clearly established legal right of a … Continue Reading

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
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

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

By Lawrence Weinstein, Alexander Kaplan and Sarah Sullivan on Posted in Ascertainable Class, Class Actions, Commonality Requirement, Deceptive Trade Practices, Typicality Requirement
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

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

By Lawrence Weinstein and Jennifer Yang on Posted in Class Actions
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
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