Proskauer on Advertising Law
Proskauer on Advertising Law

Tag Archives: Supreme Court

Supreme Court Curtails FTC Power to Seek Restitution in Court

By Lawrence Weinstein, Jeff Warshafsky and Jessica Griffith on Posted in Deceptive Trade Practices, Regulatory, Supreme Court
A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in violation of the FTC Act.  In so holding, the Court drew heavily on its interpretation of the language and history of that statute in … Continue Reading

Supreme Court “Unfriends” Ninth Circuit Decision Applying TCPA to Facebook

By Lawrence Weinstein, Anisha Shenai-Khatkhate and Jessica Griffith on Posted in Class Actions, Supreme Court
In a unanimous decision, the Supreme Court today held that Facebook’s “login notification” text messages (sent to users when an attempt is made to access their Facebook account from an unknown device or browser) did not constitute an “automatic telephone dialing system” within the meaning of the federal Telephone Consumer Protection Act (“TCPA”).  In so … 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

Update on Oral Argument in Romag: Supreme Court Considers Whether Willfulness is Required to Disgorge a Defendant’s Profits under the Lanham Act

By Lawrence Weinstein, Jeff Warshafsky and Carl Mazurek on Posted in Lanham Act
Last summer, we covered  the Supreme Court’s decision to grant certiorari in Romag Fasteners v. Fossil in order to decide whether § 1117(a) of the Lanham Act requires that a plaintiff make a showing of willfulness in order to obtain a trademark infringement defendant’s profits for a violation of § 1125(a). As we noted in … Continue Reading

SCOTUS to Decide Whether the Lanham Act Requires Proof of Willfulness for Disgorgement of Profits

By Lawrence Weinstein, Alexander Kaplan, Jeff Warshafsky and Monique Curry on Posted in Lanham Act
On Friday, June 28, 2019, the Supreme Court granted certiorari in Romag Fasteners, Inc. v. Fossil, Inc. to decide whether a showing of willfulness is necessary to obtain a defendant’s profits under the Lanham Act. In Romag, the plaintiff, a manufacturer of magnetic snap fasteners, sued Fossil and various retailers for, among other things, infringement … Continue Reading

Supreme Court Limits Removal of Class-Action Counterclaims

By Carl Mazurek and Lawrence Weinstein on Posted in Class Actions
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

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

SCOTUS to Decide If Courts Must Defer to the FCC’s Interpretation of “Unsolicited Advertisements” under the TCPA

By Lawrence Weinstein, Jeff Warshafsky and Monique Curry on Posted in Regulatory
On November 13, 2018, the Supreme Court agreed to consider the amount of deference a federal court is required to give the Federal Communications Commission in determining what constitutes an unsolicited advertisement within the meaning of the Telephone Consumer Protection Act (TCPA). PDR Network v. Carlton & Harris, No. 17-1705. The case is scheduled for … 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

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

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

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

Want to Settle Before Class Certification? The Supreme Court Raises the Stakes

By Lawrence Weinstein and Daniel Werb on Posted in Class Actions, Deceptive Trade Practices
Recently, the U.S. Supreme Court held in Campbell-Ewald Co. v. Gomez, a putative class action case, that an unaccepted pre-certification settlement offer to the named plaintiff does not moot either the plaintiff’s claim or that of the supposed class.  The case involved a claim under the Telephone Consumer Protection Act (“TCPA”) and was decided on … Continue Reading

When it Comes to Arbitration Agreement Class Action Waivers, Concepcion is Still the Law, Even in California.

By Lawrence Weinstein, Jennifer Yang and James Unger on Posted in Arbitration Clause, Class Actions
In 2014, we blogged about a California state appellate court decision invalidating the arbitration clause in DIRECTV’s consumer contracts. We found that California decision to be noteworthy because it seemed to fly in the face of the U.S. Supreme Court’s decision in AT&T Mobility v. Concepcion, 563 U.S. 333, 352 (2011), which invalidated California’s ban … Continue Reading

Clarification for Class Action Settlements May Be on the Line As Supreme Court Grants Cert in TCPA Case

By Lawrence Weinstein and James Unger on Posted in Class Actions, Deceptive Trade Practices
Last year, in Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), the U.S. Court of Appeals for the Ninth Circuit held that offers of complete relief made to individual plaintiffs under Fed. R. Civ. P. 68 do not moot either individual or class claims. This holding mirrors decisions by … Continue Reading
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