Category Archives: Advertising Litigation

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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

Supreme CourtWhile 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

Gogle CookiesLast 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

Lands’ End Requests Dismissal of “Made in U.S.A.” Class Action After Reimbursing Plaintiff

Last week, Lands’ End tried a second time to dismiss a “Made in U.S.A.” class action with the novel argument that, because the company had already reimbursed the plaintiff for the necktie she purchased, she is not injured and lacks standing. As background, in October 2014, plaintiff Elaine Oxina filed the putative class action in … Continue Reading

Contributory False Advertising Liability Is Officially a Thing in the Eleventh Circuit

On August 7, the Eleventh Circuit Court of Appeals, ruling on a question that the Court determined to be one of first impression, has ruled that a cause of action for contributory false advertising can be maintained under Section 43(a) of the Lanham Act. In Duty Free Americas, Inc. v. Estée Lauder Companies, Inc., No. … Continue Reading

FTC Administrative Law Judge Rejects Commission’s Definition of “Biodegradable”

Decision Also Reiterates Appropriate Standards for Consumer Perception Surveys On February 6, 2015, Chief Administrative Law Judge D. Michael Chappell announced his decision (“Initial Decision”) in the case of FTC vs. ECM BioFilms.  The Initial Decision rejects the FTC’s position codified in the FTC’s Guides for the Use of Environmental Marketing Claims (“Green Guides”) that “[i]t is deceptive to … Continue Reading

D.C. Circuit Upholds FTC on POM’s Advertising, Strikes Two-Study Standard

The U.S. Court of Appeals for the D.C. Circuit issued an opinion on Friday, January 30, upholding the Federal Trade Commission’s findings that POM Wonderful’s advertising, in which it claimed that consuming POM Wonderful pomegranate juice could prevent or reduce the risk of heart disease, prostate cancer, and erectile dysfunction, was deceptive. Although the D.C. … Continue Reading

Association of National Advertiser’s Advertising Law & Public Policy Conference — March 31-April 1, 2015

Join Partner John Villafranco at the Association of National Advertisers’ Advertising Law & Public Policy Conference in Washington, DC on March 31-April 1, 2015. Mr. Villafranco’s session, entitled “The Current And Future State Of Advertising Self-Regulation,” will feature the findings of an antitrust law working group formed to examine self-regulation in the advertising industry. The program … Continue Reading

False Advertising Class Action Says Maker’s Mark Whisky is Not “Handmade”

Two purchasers of Maker’s Mark whisky have sued the company, accusing it of falsely advertising the whisky as “handmade”. The lawsuit, filed as a putative statewide class action in California, alleges that Maker’s Mark “promotes its whisky as being ‘Handmade’ when in fact Defendant’s whisky is manufactured using mechanized and/or automated processes, which involves little … Continue Reading

New Jersey Offers Legislation Designed to Address Energy Supply Companies’ Variable Rate Disclosure Practices

In the wake of the unexpected polar vortices and extreme weather that struck the East Coast in early 2014, many state public utility commissions and attorneys general were inundated with consumer complaints relating to increases in energy supply companies’ variable rates.  Regulators took notice, opening investigations and convening public conferences in an effort to understand … Continue Reading

Marketing Consultant May Be Held Liable Under TCPA for Its Third-Party Marketer’s Unsolicited Text Messages

Last Friday, the U.S. Court of Appeals for the Ninth Circuit held that a marketing consultant for the United States Navy – the Campbell-Ewald Company – could be held liable for a third-party marketer’s violations of the Telephone Consumer Protection Act (“TCPA”) arising out of the transmittal of unsolicited text messages. The Navy hired Campbell-Ewald to … Continue Reading

Smooth Sale-ing: Jos. A. Bank Wins Before Seventh Circuit

Late last week, the Seventh Circuit affirmed the dismissal of a putative class action alleging that Jos. A. Bank advertises its normal retail prices as temporary price reductions, in violation the Illinois Consumer Fraud and Deceptive Business Practices Act. The company’s pricing practices, the plaintiff argued, constituted a “fraudulent sales technique.” Illinois law, like most … Continue Reading

“Psychological Commitment” as a Basis for a Promotional Pricing Lawsuit?

Class action plaintiffs continue to explore new theories under state promotional pricing statutes. Last week, a plaintiff filed a class action complaint against Gap Inc. in California state court, alleging that the company violates several state laws by not adequately disclosing which products are excluded from an advertised sale. As a result, consumers make a psychological commitment … Continue Reading

Hulu Hit with Class Action Over Automatic Renewals

In 2010, California enacted a law governing automatic renewals. As we previously posted, the law generally requires that companies: (1) clearly disclose the material offer terms before a consumers subscribes; (2) obtain affirmative consent to the terms before the consumer is charged; (3) provide a confirmation to the consumer that includes the terms, a description … Continue Reading
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