Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Standing

“Fishy” Allegations: Judge Finds Plaintiffs’ Testimony in False Ad Suit Against SeaWorld Lacked Credibility

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Brooke Gottlieb on Posted in Class Actions, Deceptive Trade Practices
Following a three-day bench trial, Judge Jeffrey S. White of the Northern District of California recently held that Plaintiffs lack standing to pursue their false advertising claims against SeaWorld relating to its treatment of orca whales. Kelly Nelson, et al. v. SeaWorld Parks and Entertainment, No. 15-cv-02172-JSW (N.D. Cal. October 13, 2020). Plaintiff Nelson alleged … Continue Reading

Ninth Circuit Clarifies Standing Requirements for Damages Classes

By Lawrence Weinstein, Baldassare Vinti and Carl Mazurek on Posted in Class Actions
In a decision that will have repercussions for consumer false advertising lawsuits, a Ninth Circuit panel recently ruled in a Fair Credit Reporting Act (“FCRA”) case that all class members must have standing at the trial stage of a class action for monetary damages. Ramirez v. TransUnion, LLC, 951 F.3d 1008 (9th Cir. 2020).… Continue Reading

District Court Judge Finds that Herbal Extract Manufacturer Fails to Capture the Essence of a Lanham Act Claim

By Lawrence Weinstein, Carl Mazurek and Kelly Landers Hawthorne on Posted in Lanham Act
In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, Judge Katharine Hayden of the District of New Jersey held last month that an herbal extract manufacturer allegedly misled by its supplier into purchasing diluted saw palmetto extract lacked standing to bring a Lanham Act false advertising claim. Jiaherb, Inc. v. MTC … Continue Reading

Third Circuit Shreds Plaintiff’s Credit Card Receipt Case On Standing Grounds

By Lawrence Weinstein, Daniel Werb and Marc Palmer on Posted in Uncategorized
The Third Circuit recently held that procedural violations of the Fair and Accurate Credit Transactions Act (“FACTA”), absent any showing of concrete harm, do not meet Article III standing requirements.  Kamal v. J. Crew Group, 2019 WL 1087350 (3rd Cir. 2019). Plaintiff Ahmed Kamal commenced a suit against J. Crew Group after making purchases at … Continue Reading

District Court Filters Out Preempted “Spring Water” False Advertising Claim

By Alexander Kaplan and Jeff Warshafsky on Posted in Lanham Act
Earlier this year, we covered a decision from the District of Connecticut finding state law false advertising claims against the bottled water company Poland Spring preempted by the FDCA. Flowing from that decision is the case we are covering today: Frompovicz v. Niagara Bottling, LLC, 2018 WL 4465879 (E.D. Pa. Sept. 18, 2018).… 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

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

New York Federal Court Latest to Dismiss Outlet Pricing Class Action

By Lawrence Weinstein and Lee Popkin on Posted in Labeling Claims
Last month, Judge Valerie Caproni of the Southern District of New York dismissed with prejudice a putative deceptive pricing class action filed against Burberry.  This is the first decision within the Second Circuit to determine whether shoppers claiming to have been victimized by discount price advertising in outlet stores have suffered actual injury for purposes … Continue Reading

Third Circuit Splits with the Seventh Over Standing To Sue For Alleged Inefficient Design of Eye Drop Dispenser

By Alexander Kaplan, Lawrence Weinstein and Daniel Werb on Posted in Deceptive Trade Practices
In a surprising decision and split with the Seventh Circuit, the Third Circuit recently held that plaintiffs have standing to sue for unfair trade practices under the theory that a manufacturer is obligated to optimize the number of eye drop doses in a container of a fixed volume, even if there is no alleged misrepresentation … Continue Reading

Court Dismisses “Phantom Markdown” Suit against Saks

By Daniel Werb on Posted in Deceptive Trade Practices
Our colleagues at Proskauer’s commercial litigation blog, Minding Your Business, recently covered a dismissal of a discount advertising suit asserted against Saks. The case is Nunez v. Saks Inc., 2017 WL 1184058 (S.D. Cal. Mar. 22, 2017), and Proskauer’s coverage may be found here. *** Want to talk advertising? We welcome your questions, ideas, and … Continue Reading

California Court Issues Surprising Decision in Discount Advertising Case

By Lawrence Weinstein, Daniel Werb and Tiffany Woo on Posted in Class Actions
On December 15, 2016, the California Court of Appeals in Los Angeles came to a surprising summary judgment decision in Sajid Veera et al. v. Banana Republic, LLC.  The court held that plaintiffs who claimed they were misled by 40% off signs raised a triable issue of whether they suffered an injury-in-fact even though they … Continue Reading

Standing to Assert Injunctive Relief is Not in the Tea Leaves, Court Says

By Lawrence Weinstein and Tiffany Woo on Posted in Class Actions, Labeling Claims
In Lanovaz v. Twinings North America, Inc., Judge Whyte of the Northern District of California recently decided that the plaintiff lacked standing to pursue injunctive relief, and granted summary judgment for defendant Twinings.  The class action alleged that Twinings tea products were misbranded under California law as “natural source[s] of antioxidants.”… Continue Reading

Supreme Court: Class Action Plaintiffs Must Show ‘Concrete’ Harm to Satisfy Article III

By Lawrence Weinstein and Jeff Warshafsky on Posted in Class Actions
In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff had alleged a particularized injury, and failed to assess whether the alleged injury was “concrete”.  Although Spokeo was … Continue Reading

A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

By Alexander Kaplan, Lawrence Weinstein and Lee Popkin on Posted in Deceptive Trade Practices, Lanham Act, Primary Jurisdiction/Preemption
In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing mislabeled yarn lacked standing to bring a Lanham Act false advertising claim. Knit With v. Knitting Fever, … Continue Reading

What KIND of Juice Did They Say It Was?

By Lindsey Olson and Victoria Loughery on Posted in Class Actions, Labeling Claims
On July 14, 2014, Northern District of Illinois Judge Sara L. Ellis dealt a blow to putative class action members protesting the use of “evaporated cane juice” to describe sugar in product ingredients lists.  Plaintiff alleged that she was deceived by the label on KIND’s Vanilla Blueberry Clusters, which contained the claim “no refined sugars” … Continue Reading
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