Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Deceptive Trade Practices

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

By Lawrence Weinstein and Benjamin Rattner on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

It’s a Complete Red Haring: Court Dismisses Wide Ranging Art-Authentication Lawsuit against Keith Haring Foundation

By Lawrence Weinstein and John Browning on Posted in Lanham Act
Art is no stranger to great controversy, although the arbiters of art world disputes are usually critics and artists rather than federal judges. Nevertheless, in early March, Judge Denise Cote of the Southern District of New York was faced with a complaint accusing the Keith Haring Foundation of a range of violations – including antitrust, … Continue Reading

Cereal Killer: NAD Un-Sweetens Some of MOM’s Breakfast Cereal Claims

By Lawrence Weinstein and Benjamin Rattner on Posted in NAD/NARB/CARU/ERSP
A recent National Advertising Division (“NAD”) decision serves as a reminder that comparative taste preference claims can quickly sour without methodologically sound substantiation. Taste-testers (and advertisers) should take heed. In Mom Brands Co., breakfast cereal maker Post brought an NAD challenge against two categories of claims Malt-O-Meal Brand Cereals Co. (“MOM”) made comparing Post cereals to … Continue Reading

False Advertising Suit Concerning Department of Defense Standards Misfires

By Lawrence Weinstein and James Unger on Posted in Deceptive Trade Practices
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

By Lawrence Weinstein, John Browning and Daniel Werb on Posted in Deceptive Trade Practices, Lanham Act, Social Media
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

Made in the USA?: Suit Against Nordstorm Alleging Misleading Jeans Labels May Proceed

By Lawrence Weinstein and James Unger on Posted in Class Actions, Labeling Claims
How much of a product has to be “Made in the USA” for a company to label it as such, and who gets to decide? Those questions are raised by an ongoing class action lawsuit before a federal court in the Southern District of California. In Paz v. AG Adriano Goldschmied, Inc., plaintiffs allege that Nordstrom … Continue Reading

(Baby)Food for Thought: In Alleging Unlawful and Misleading Product Labeling, Plaintiff Needed More Than One Gerber Baby

By Daniel Werb, Lawrence Weinstein and Alexander Kaplan on Posted in Class Actions, Labeling Claims
Last month, Judge Lucy H. Koh of the Northern District of California granted summary judgment in favor of Gerber because the plaintiff failed to satisfy the “reasonable consumer standard” in backing up her allegations that Gerber baby food labeling was misleading in violation of California state law. The case illustrates an important threshold to the reasonable … Continue Reading

Third Circuit Irons Out “Powerful” Performance False Advertising Dispute

By Lindsey Olson, John Browning, Lawrence Weinstein and Alexander Kaplan on Posted in Injunctions, Labeling Claims, Lanham Act
The Third Circuit has rendered a notable decision with important implications for the use of fine print in advertising. The Court held that small print statements that explicitly define the terms of a more prominent superior performance claim can render that performance claim unambiguous – and thus subject to a literal falsity claim – even if … Continue Reading

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

By Jennifer L. Jones, Jennifer Yang, Lawrence Weinstein and Alexander Kaplan on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

By Joelle Milov and Jeff Warshafsky on Posted in Ascertainable Class, Class Actions, Deceptive Trade Practices, Labeling Claims
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

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

By Celia Cohen on Posted in Deceptive Trade Practices, Labeling Claims
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

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

By Benjamin Rattner on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
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

Cracking Under Pressure: “Raw” Juice Class Action down the Drain after Plaintiffs Cite Articles that Squeeze the Life out of their Complaint

By John Browning and Alexander Kaplan on Posted in Class Actions, Labeling Claims, Lanham Act
On July 2, 2014 Judge Vince Chhabria dismissed a class action alleging that Hain Celestial Group, a manufacturer of “raw” juices, misleadingly labelled and advertised its wares. This dismissal is noteworthy – and should stand as a cautionary tale – because the class plaintiffs eviscerated their own claims and pleaded themselves out of court by … Continue Reading

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

By Jeff Warshafsky and Jennifer Yang on Posted in Deceptive Trade Practices, Labeling Claims, Regulatory
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

By Rebecca Felsenthal and Victoria Loughery on Posted in Ascertainable Class, Class Actions, Deceptive Trade Practices
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

End of Battery Class Actions Almost in Sight

By Joelle Milov and Alexander Kaplan on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
On April 22, 2014, the Plaintiff in Poertner v. Gillette Co. moved for final approval of settlement and for attorneys’ fees and costs. The settlement, reached in September 2013, would bring to an end two class actions against Gillette – one in California and one in Florida. The settlement class is comprised of over 7 … Continue Reading

LinkedIn Consumer Class Action Survives Motion to Dismiss

By Benjamin Rattner and Alexander Kaplan on Posted in Class Actions, Deceptive Trade Practices, Social Media
It appears that California’s consumer-friendly Unfair Competition Law, Cal. Bus & Prof. Code §17200 et seq. (“UCL”), encompasses claims made regarding website privacy policies. In In re LinkedIn User Privacy Litigation, No. 5:12-cv-0388-EJD, a Northern District of California court denied LinkedIn’s motion to dismiss a putative class action concerning LinkedIn’s allegedly misleading privacy policy statement … Continue Reading

Court Puts a Cork in Billionaire’s Punitive Damages Award In Counterfeit Wine Case

By Rebecca Felsenthal and Victoria Loughery on Posted in Deceptive Trade Practices
On March 31st, a federal judge in the Southern District of New York slashed a $12 million dollar punitive damages award to billionaire and oenophile William Koch in his lawsuit over counterfeit wine, finding the award – which amounted to more than 33 times the compensatory damages award – to be “so exorbitant that it is … Continue Reading

Truth In Advertising Act of 2014 — Congress Considers Legislation Aimed At Curbing Use of Digitally-Altered Photos In Advertisements

By Rebecca Felsenthal and Victoria Loughery on Posted in Regulatory
The Truth in Advertising Act of 2014 (H.R. 4341), introduced on March 27th, would mandate that the FTC create appropriate regulations to reduce the use (in advertising for commercial products) of images that have been altered in a way that “materially change[s] the physical characteristics of the faces and bodies” of any persons depicted in … Continue Reading
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