Category Archives: Advertising Litigation

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TINA Has Eyes on Goop

The consumer advocacy non-profit Truth in Advertising, Inc. (TINA.org) has set its sights on Goop, the lifestyle brand launched by Gwyneth Paltrow.  In a complaint filed earlier this week with the Santa Clara and Santa Cruz County California district attorneys, both members of the California Food and Drug and medical Device Task Force, TINA alleges … Continue Reading

Cy Pres Class Action Settlements Just Fine, Ninth Circuit Says

What should a corporation do when a class action lawsuit claims it broke the law, the group of allegedly affected people is massive, but the real-world “harm” is effectively nil? If the lawsuit fails to state a valid claim, obviously you move to dismiss it. But what if your best arguments require expensive discovery, you … Continue Reading

Third Circuit Steps Back from the Brink of a Circuit Split over “Ascertainability”

Yesterday, a panel of the Third Circuit Court of Appeals took another step back from a circuit split over the extent to which aspiring class plaintiffs must show a “reliable and administratively feasible means of determining whether putative class members fall within the class definition,” and one judge called for scrapping that requirement altogether.… Continue Reading

Comparison Pricing Victory for Ross Stores in California

On August 2, 2017, the U.S. District Court for the Central District of California dismissed a putative class action lawsuit against Ross Stores that accused the discount retailer of misleading promotional pricing practices. The lawsuit stemmed from February and May 2015 purchases by the two lead plaintiffs of items bearing price tags with a selling … Continue Reading

Missing Ingredient Claims Lead Food Advertising Class Actions So Far in 2017

For the first 28 weeks of 2017, the most frequently alleged claims in new food and beverage false-advertising class actions have related to featured product ingredients that allegedly are absent, or present only in small quantities, in the food at issue. We reviewed news reports and other mentions of newly-filed food advertising class actions for … Continue Reading

Minnesota Federal Judge Says Glyphosate Claims are “Unreasonable”

A mini-trend in food litigation last year was the spate of class action cases alleging that foods advertised as “natural” contained trace amounts of the herbicide glyphosate.  “Trace” is the operative word; to the extent plaintiffs alleged the amounts they found, those amounts always were far below even what the U.S. Department of Agriculture permits … Continue Reading

Judge Upholds FTC Staff Opinion that Avatar Calls are Prerecorded Messages under TSR

Yesterday, a D.C. district court upheld a recent opinion letter issued by FTC staff that extended robocalling restrictions to telemarketing calls that use so-called soundboard technology or “avatars.”  This technology generally allows a live agent to communicate with a call recipient by playing recorded audio snippets instead of using his or her own live voice. … Continue Reading

Keeping Up with the Consumer Product Safety Commission: Update on Recent CPSC Developments – 3/29/2017

Register Now for Keeping Up with the Consumer Product Safety Commission: Update on Recent CPSC Developments, the latest in our 2017 Advertising and Privacy Law Webinar Series With the complexity of today’s product safety regulatory environment and the civil penalty amounts for failure to report safety hazards, it is more important than ever for manufacturers and retailers to … Continue Reading

Announcing the Advertising and Privacy Law Webinar Series

Please join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel. … Continue Reading

The Ninth Circuit’s Briseno Decision Is Not As Bad As It Looks for Consumer Class Action Defendants

The Ninth Circuit’s decision this week in Briseno v. ConAgra Foods, Inc., No. 15-55727, refused to engraft an “administrative feasibility” requirement to Federal Rule of Civil Procedure 23’s prerequisites for certifying a class action.  What this means, basically, is that in Ninth Circuit courts, a named plaintiff seeking class certification need not “demonstrate an administratively … Continue Reading

Protected: 2016 Advertising and Privacy Law Summit Attendee Follow up

There is no excerpt because this is a protected post.

Caution with Hyperlinks and Info-Hovers: Court Denies DIRECTV’S Motion for Partial Summary Judgment

Are hyperlinked and hovering disclosures enough to adequately inform consumers about the terms of your offer? Is requiring consumers to click on a button to accept all terms and conditions enough to obtain their informed consent to each of your terms and conditions? A recent federal court decision demonstrates that the answers to those questions … Continue Reading

Casino Patron Out of Luck On Her New Jersey TCCWNA Claim

The mid-level New Jersey appellate court issued an important decision last week under the state’s Truth-in-Consumer Contract and Warranty Notification Act (“TCCWNA”). The biggest TCCWNA issues, including to what extent the law applies to website terms of service and fairly standard liability disclaimers in those terms, are still awaiting decisions from U.S. District Courts. But … Continue Reading

Court Suggests Companies Can Be Liable as Soon as Claims Become Stale

It’s a common question. A company creates a product with a competitive advantage; it takes steps to substantiate a superiority claim; and, satisfied that it has met the legal standard, it bases an advertising campaign on that claim. Then, a competitor comes along with a new product, and the superiority claim is no longer accurate. … Continue Reading

Federal Court Finds Amazon Liable for Kids’ In-App Purchases

Yesterday, a federal judge ruled that Amazon is liable for permitting unauthorized in-app purchases incurred by children.  Amazon is the last in a series of actions brought by the FTC against third-party platforms related to kids’ in-app charges (we previously blogged about the other two actions against Apple and Google here and here, which resulted in … Continue Reading

Class Actions Under New Jersey Warranty Law Threaten to Turn Terms-of-Service Boilerplate Into Big Potential Risks

Do your Terms of Service preclude litigants from claiming consequential damages or attorneys’ fees? If new class action lawsuits in New Jersey are right, merely including these terms, and potentially many other disclaimers, violates New Jersey state law, and subjects you to a penalty of $100 per sale. This interpretation of New Jersey’s 36 year-old … Continue Reading

Coca-Cola Wrings the Last Drops out of POM’s False Advertising Litigation Campaign

Seven crops of pomegranates (and other fruits) have grown, ripened, been picked, pulped and processed.  A river of juice has flowed.  After seven years of litigation, the last overripe fruit of the Lanham Act campaign launched by POM Wonderful against four of its major competitors has hit the ground with a squishy thud. A Los … Continue Reading

Scalia’s Death Leaves High Court in Limbo on Three Key Consumer Class Actions

While the sudden death of Supreme Court Justice Antonin Scalia creates an immediate vacancy on the bench, it also likely leaves the high court’s docket in limbo on a number of key consumer class actions awaiting the Court’s decision. Many predict that President Obama will not be able to replace Scalia before the 2016 Presidential … Continue Reading

Kohl’s Kicks Putative Class Action Suit Alleging Deceptive Sale Prices

On February 1, 2016, the U.S. District Court for the District of Massachusetts dismissed  a consumer class action alleging that Kohl’s Department Stores advertises false sale prices. The plaintiff in Mulder v. Kohl’s Department Stores, Inc., 15-cv-11377 (D. Mass.), asserted causes of action for fraud, breach of contract, unjust enrichment, and violations of the Massachusetts … Continue Reading

Cookies, Promises, and California: Why the 3rd Circuit Revived Privacy Claims Against Google

Last week, the U.S. Court of Appeals for the Third Circuit revived several privacy claims against Google pertaining to the Internet company’s practice of side-stepping “cookie blockers” on Microsoft’s Internet Explorer and Apple’s Safari browsers. The Third Circuit found that Google intentionally circumvented “cookie blockers” on Internet browsers by exploiting loopholes found in the cookie … Continue Reading

United States v. Bayer: Preventing or Treating Disease Claims

In recent years, the FTC and the Center for Science in the Public Interest (“CSPI”) seem to have seen disease claims everywhere, regardless of whether the FDA has deemed the same claims appropriate, non-disease structure/function claims.  In the United States v. Bayer Corp., for the second time in recent months, a court called them on … Continue Reading

Fembots and False Advertising

Fembots have plagued humanity for many years. In the 1970s, fembots attempted to seize control of a weather device before they were defeated by the Bionic Woman. And in the 1990s, fembots worked with Dr. Evil until Austin Powers was able to outwit them. Now, they’re back, luring unsuspecting men into cheating on their spouses. At least that’s … Continue Reading

Tenth Circuit Rules that False Advertising Plaintiffs Must Allege Evidence of Implied Falsity and Quantify Damages at Pleading Stage

In a Lanham Act false advertising action by cosmetic surgeons against plastic surgeons – yes, those are two different things – the Tenth Circuit Court of Appeals, in an August 31 opinion, affirmed dismissal of Lanham Act false advertising claims. The Court of Appeals held that the plaintiffs failed to plead a Lanham Act claim … Continue Reading
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