Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: SDNY

More Than “Puffery”: Claims Against Canada Goose Survive Motion to Dismiss

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Victor Marrero of the Southern District of New York recently largely denied a motion to dismiss claims that Canada Goose misled consumers by representing that the fur on Canada Goose jackets is ethically and sustainably sourced. In doing so, the court determined plaintiff’s allegations were “thin,” but viewing the complaint in the light most … Continue Reading

Judges Toss Plain “Vanilla” Deceptive Labeling Claims

By Lawrence Weinstein, Jeff Warshafsky and Anisha Shenai-Khatkhate on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
The beverage industry came out on top in a pair of recently dismissed lawsuits alleging the use of the term “vanilla” on drink labels was misleading, where the vanilla flavor allegedly did not come exclusively from the vanilla bean plant. Howard Clark v. Westbrae Natural, No. 20-cv-03221-JSC (N.D. Cal. December 1, 2020); Ryan Cosgrove et … Continue Reading

Much A-Brew About Nothing: Court Dismisses False Ad Suit Against Starbucks

By Lawrence Weinstein, Jeff Warshafsky and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Alison Nathan of the U.S. District Court for the Southern District of New York recently dismissed with prejudice a putative class action alleging Starbucks misrepresented itself as a “premium” coffee retailer. In doing so, the Court found that plaintiffs failed to allege Starbucks made any statements likely to mislead reasonable consumers, and that nearly … Continue Reading

Court Gives Vanilla Ice Cream False Advertising Claims a Frosty Reception

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Emily H. Kline on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims
Judge Louis L. Stanton of the Southern District of New York recently granted defendant Wegmans Food Markets’motion to dismiss claims alleging that Wegmans falsely labels its vanilla ice cream. Plaintiffs sued Wegmans for false advertising, negligent misrepresentation, and deceptive acts in violation of federal and state law, alleging that despite labeling its product “vanilla ice … Continue Reading

The RealReal Falls Seven Bags Short of 100% Compliance with Advertising Claims

By Lawrence Weinstein, Jeff Warshafsky and Kelly Landers Hawthorne on Posted in Deceptive Trade Practices, Lanham Act
Judge Vernon Broderick of the U.S. District Court for the Southern District of New York recently decided a motion to dismiss by luxury consignment goods reseller The RealReal (“TRR”) in an action brought by famous French brand Chanel. Chanel v. The Realreal, 2020 WL 1503422 (S.D.N.Y. Mar. 30, 2020). In addition to the false advertising … 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

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

By Lawrence Weinstein, Jennifer Yang and Russell Kostelak on Posted in Class Actions, Regulatory
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

SDNY Judge Not Sweet on Dannon’s Bid for a Preliminary Injunction

By Lawrence Weinstein, Jeff Warshafsky and Emily H. Kline on Posted in Deceptive Trade Practices, Injunctions, Lanham Act
In a battle of leading yogurt beverage makers, Chief Judge Colleen McMahon of the U.S. District Court for the Southern District of New York recently denied Dannon’s application for a preliminary injunction in its false advertising suit against Chobani. The result of Judge McMahon’s decision is that Chobani can continue to sell its yogurt drinks … Continue Reading

Second Circuit Affirms Dismissal of Truffle Kerfuffle

By Alexander Kaplan and Daniel Werb on Posted in Labeling Claims
Last year, we wrote about Jessani et al v. Monini North America, a case in the Southern District of New York in which the court dismissed as a matter of law plaintiffs’ complaint alleging that Monini falsely advertised its “White Truffle Flavored Extra Virgin Olive Oil” product as containing actual white truffle. The case turned … Continue Reading

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

By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
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 … Continue Reading

Snack Bar Class Action is KIND-ly Stayed Pending USDA Regulation on Bioengineered Food

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Class Actions, Primary Jurisdiction/Preemption, Regulatory
Earlier this month, Judge William H. Pauley III in the Southern District of New York stayed a lawsuit against the snack bar maker KIND LLC, styled as a class action, alleging that KIND falsely marketed its products as “all natural” and “non-GMO.”  In re KIND LLC “Healthy & All Natural” Litigation, 2018 WL 1156009 (S.D.N.Y. … Continue Reading

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

By Lawrence Weinstein and Tiffany Woo on Posted in Class Actions
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

Court Says “Lights Out” on UL Certification Lanham Act Claim

By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Last week, a federal judge in Manhattan examined the intersection of false advertising and trademark infringement law in connection with the alleged misuse of a certification mark, and found the plaintiff to be entitled to neither body of law as a means to stop a competitor from advertising its products as “UL Certified.”  The court … Continue Reading

Elsevier Wins Summary Judgment Over Use of 3-D Medical Animations in Copyright Case

By Lawrence Weinstein and Daniel Werb on Posted in Uncategorized
Although this blog typically focuses on legal developments in marketing and false advertising, its authors and editors are of course active legal practitioners in related areas of IP and other creative industries. Proskauer recently received a favorable summary judgment decision for the defendant, its client Elsevier, Inc., a leading publisher in the fields of science, … Continue Reading

When the Strength of the Facts Cannot be Lifted – SDNY Dismisses Muscle Maker Slack-Fill Class Action

By Lawrence Weinstein, Jennifer Yang and Evelyn Pang on Posted in Class Actions, Deceptive Trade Practices, Labeling Claims, Regulatory
The Southern District of New York recently dismissed a putative class action against Cytosport, the maker of Muscle Milk protein powder. The plaintiff, Orlando Bautista, alleged that he bought a container of Muscle Milk protein powder for $28 but was “surprised and disappointed” to discover that the package contained roughly 30% empty space. The suit … Continue Reading

Second Circuit Affirms Ruling that SPD Swiss Precision Diagnostics Falsely Advertised Clearblue Weeks Estimator Home Pregnancy Test and Did so Intentionally and Egregiously

By Alexander Kaplan and Daniel Werb on Posted in Deceptive Trade Practices, FDCA, Injunctions, Lanham Act, Primary Jurisdiction/Preemption
In an important recent false advertising decision in a suit brought by home pregnancy test manufacturer Church & Dwight against its principal competitor SPD Swiss Precision Diagnostics, a Second Circuit panel unanimously affirmed orders by Judge Alison Nathan of the Southern District of New York, following a bench trial on liability, (i) holding that SPD … Continue Reading

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

By Lawrence Weinstein, Celia Cohen and John Browning on Posted in Deceptive Trade Practices, Injunctions, Labeling Claims, Lanham Act
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

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
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