Category Archives: Class Actions

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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

“Give the Money to One Percenters, Not to Non-Profits,” 11 State Attorneys General Argue

On July 5, bipartisan Attorneys General from 11 states filed an astonishing brief in the Third Circuit Court of Appeals, asking that court to reject the proposed class action settlement in In re Google Inc. Cookie Placement that would give settlement monies to non-profits rather than class members. The plaintiffs in Google Cookie allege that … Continue Reading

So What’s In the “Fairness in Class Action Litigation Act of 2017”?

On Feb. 9, the Chair of the House Judiciary Committee introduced a bill titled the “Fairness in Class Action Litigation Act of 2017” (FCALA) (H.R. 985).  Although the FCALA has a worthy goal and several provisions that build on existing, successful class action reforms, it may have too many “poison pills” to pass the Senate, … Continue Reading

Ad Law News and Views Newsletter

Did you know Kelley Drye’s Advertising Law practice produces a newsletter, Ad Law News and Views, every two weeks to help you stay current on ad law and privacy matters? Click here to access our Publication Sign Up and select Advertising and Marketing to subscribe. Find contents from the latest issue below: Click here to view with … 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

New Jersey’s TCCWNA: New Year, Same Uncertainty

In 2016, many retailers found themselves on the wrong end of class actions brought under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”). The suits allege that these retailers’ website terms of service either contained provisions that violated some “clearly established” New Jersey or federal law, or else stated that violative terms might not … 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

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Clarity Coming Soon About What New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) Actually Requires

Remember that wave of class actions under New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. § 56:12-14 et seq., that hit New Jersey courts earlier this year, claiming that website terms of use contained unlawful provisions?  The motion to dismiss briefing is well underway, and online merchants should soon have some clarity about … Continue Reading

Who’s Still “Standing” Following Spokeo, Inc. v. Robins?

From the first month of district court decisions issued since the United States Supreme Court decided Spokeo, Inc. v. Robins, No. 13-1339, 2016 WL 2842447, *3 (U.S. May 16, 2016), it appears the needle on Article III standing has moved slightly, but so far only slightly, in favor of the defense. Spokeo held that (i) in order to … Continue Reading

Spokeo Starting To Impact Class Certification Decisions — Stay Tuned

We are often asked what we see as the most promising avenues for class action defense arising from the Supreme Court’s Spokeo decision.  Our answer is that even if courts, post-Spokeo, give Congress wide latitude to define a compensable “injury,” courts should not certify classes that include people who did not suffer that injury.  As … Continue Reading

Agree to Disagree? CFPB Rule Would Prohibit Mandatory Arbitration Clauses, Require Submission of Arbitral Records

The Consumer Financial Protection Bureau released a proposed rule last week that would prohibit providers of consumer financial products and services from using pre-dispute arbitration agreements to prevent consumers from filing a class action.  In its press release announcing the proposed rule, the CFPB used strong language to condemn mandatory arbitration provisions as permitting “companies … Continue Reading

Mobile App Providers Encouraged to Obtain User Consent Before Sharing Video Viewing Information with Any Third Party After Gannett Mega-damages VPPA Claim Moves Forward

If you offer a mobile application that allows consumers to watch videos of any kind, and if you share that video-viewing information with an analytics firm, take careful note:  On April 29, in Yershov v. Gannett Satellite Information Network, Inc., No 15-1719, a panel of the First Circuit Court of Appeals that included retired Justice … 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

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

Plaintiffs Will Continue to Drive Website Accessibility as DOJ Delays Rulemaking

ADA KeyboardSince July 2010, the DOJ has sought to issue a proposed rulemaking addressing the applicability of the Americans with Disabilities Act (“ADA”) to private retailers offering goods and services to the public online.  The rulemaking has been delayed several times, and was most recently scheduled for a Spring 2016 publication. However, on November 19, 2015, … 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

Lawsuit Over Website Accessibility Highlights Importance of Compliance

ADA KeyboardLast month, Reebok was hit with a proposed class action alleging that the company’s website violates the Americans with Disabilities Act because it is not accessible to the blind. The plaintiffs argue that Reebok.com contains “thousands of access barriers” that make it difficult —if not impossible — for blind customers to use the site. Because … 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

One-A-Day Keeps the Plaintiff’s Lawyers Away: FDA Determinations on Disease Claims Preempt Class Action Allegations

A California court recently dismissed, in part, a consumer class action against labeling and advertising claims for twenty different Bayer One-A-Day multivitamins. The plaintiffs had alleged that the claims, “supports heart health” and “supports immunity” – which Bayer used for many of the products – were impermissible disease claims. The court rejected these allegations. It found, first, … 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
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