Category Archives: Advertising Litigation

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Slack Fill Plaintiffs May Win Battles But Lose the War

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions
Lawyers who file “slack-fill” cases against food manufacturers found a friendly venue in Missouri.  Missouri has a broad consumer fraud law and multiple courts have denied motions to dismiss slack-fill claims pleaded under that statute.  But the real fight in class actions—where the money is, in a bank robber’s parlance—is over class certification, and on … Continue Reading

Some Sanity on “Slack Fill”

By Jeffrey S. Jacobson on Posted in Advertising Litigation
The “Show Me” state of Missouri has not been kind to candy makers in cases where consumers allege that packages contain non-functional “slack fill.”  Cases against the makers of Mike and Ike® candies, Raisinets®, and Reese’s® Pieces® all survived motions to dismiss within the last year or so, with judges finding that what “reasonable consumers” would … Continue Reading

Second Circuit Bounces Multistate “Natural” Class. Now, Keep An Eye On the Ninth Circuit

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions
Early this year, a Ninth Circuit panel upended a major nationwide class action settlement because it found that the District Court had not sufficiently considered material differences among the 50 states’ relevant laws.  I called that decision—now likely headed for en banc review–“Regrettable But Forgettable” because the district court should be able to correct the … Continue Reading

Jury Awards $16M in Damages to Dyson in Lanham Act Case Against SharkNinja

By Kristi Wolff and Donnelly L. McDowell on Posted in Advertising, Advertising Litigation
A federal jury in Illinois recently awarded Dyson, Inc. over $16 million in damages after finding that SharkNinja falsely advertised that its Rotator Powered Lift-Away vacuum was better than Dyson’s best-performing vacuum, the DC65.  SharkNinja ran ads that claimed that independent testing showed that the Rotator Powered Lift Away vacuum was proven to have “more … Continue Reading

Why So BLU?: FTC Settles Privacy and Data Security Claims with Mobile Company; Fencing-In Relief Requires Consumer Opt-In to Data Sharing

By Alysa Zeltzer Hutnik, Dana B. Rosenfeld and Lauren Myers on Posted in Advertising, Advertising Litigation, Federal Trade Commission, Privacy and Information Security
Earlier this week, the FTC settled its case with BLU Products, Inc., a cell phone company the FTC claimed misled consumers about its privacy and data security practices. According to the agency, the company represented that it did not collect unnecessary personal information and that it imposed specific data security procedures to protect consumers’ personal … Continue Reading

The Ninth Circuit’s Hyundai Decision Is Regrettable But Forgettable

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions
This week, by a 2-1 vote, a Ninth Circuit panel reversed a district court’s approval of a massive class action settlement involving Hyundai’s and Kia’s allegedly inflated statements of fuel efficiency.  The majority’s long decision, over a vigorous dissent, amounted only to a “greatest hits” collection of Ninth Circuit class action and settlement skepticism.  Nothing … Continue Reading

2017 Recap

By Kelley Drye on Posted in ADA, Advertising, Advertising Litigation, Class Actions, Consumer Product Safety, Consumer Protection, Federal Trade Commission, Kelley Drye, NAD, Native Advertising, Privacy and Information Security, Promotions, Regulatory Developments, Social Media, State Attorneys General
Most Popular Ad Law Access Posts of 2017 As reported in our Ad Law News and Views newsletter, Kelley Drye’s Advertising Law practice posted 106 updates on consumer protection trends, issues, and developments to this blog in 2017. Here are some of the most popular: New Lawsuit Highlights Risks of Using User-Generated Content FTC Announces $1.3 … Continue Reading

Is It Time to Rethink Establishment Claims?

By Kelley Drye on Posted in Advertising, Advertising Litigation, Dietary Supplements
The decision in Kwan v. Sanmedica International, 854 F.3d 1088 (9th Cir. 2017) in April, has occasioned a lot of discussion about the apparent demise of the establishment claim “standard” in California.  What the Kwan decision should have done, but did not, is provoke some hard thinking about what this “standard” is and how we … Continue Reading

Genetically Modified – Naturally!

By Kelley Drye on Posted in Advertising Litigation, Class Actions, Food and Drug
On October 25, the U.S. District Court for the District of Massachusetts dismissed a consumer class action under Massachusetts law, contending that Wesson vegetable oil is falsely labeled “100% natural” because it allegedly is extracted from genetically modified corn, soybean and rapeseed.  Lee v. Conagra Brands., Inc., 1:17-cv-11042 (D. Mass Oct. 25, 2017).  This was … Continue Reading

“Local” Means Something, but What?

By Gonzalo E. Mon on Posted in Advertising Litigation
The “local” food movement is growing, as many consumers attempt to find fresher options, support local businesses, and reduce the environmental impact of shipping foods over longer distances. One problem, though, is that no one is quite sure what “local” means. As with the word “natural” – another word without a clear meaning – this … Continue Reading

Case Dismissed in FTC v. Quincy Bioscience

By John E. Villafranco on Posted in Advertising Litigation, Dietary Supplements
On Thursday, a federal court in New York dismissed an FTC and New York Attorney General action against Quincy Bioscience, which sells the dietary supplement, Prevagen.  Quincy bases claims for its product on research that includes a randomized, controlled clinical study.  The court observed that the parties agreed that this “gold standard” study followed “normal … Continue Reading

TINA Has Eyes on Goop

By John E. Villafranco on Posted in Advertising, Advertising Litigation, Dietary Supplements, Fashion and Retail, Food and Drug
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

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions
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”

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions
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

By Katie Townley and Christie Grymes Thompson on Posted in Advertising, Advertising Litigation, Class Actions, Fashion and Retail
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

By Kelley Drye on Posted in Advertising, Advertising Litigation, Class Actions, Food and Drug
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”

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Food and Drug
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

By Alysa Zeltzer Hutnik on Posted in Advertising, Advertising Litigation, Federal Trade Commission, Telemarketing and Call Center Operations
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

By Kelley Drye on Posted in Advertising, Advertising and Privacy Law Summit, Advertising Litigation, Consumer Product Safety, Consumer Protection, Kelley Drye, Regulatory Developments
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

By Kelley Drye on Posted in Advertising, Advertising and Privacy Law Summit, Advertising Litigation, Agreements, Antitrust, Class Actions, Consumer Financial Protection, Consumer Product Safety, Consumer Protection, Enforcement, Fashion and Retail, Federal & State Regulatory, Federal Communications Commission, Federal Trade Commission, Food and Drug, Internet of Things, Legislative Developments, Marketing & Media Transactions, Mobile Marketing, NAD, Native Advertising, Privacy and Information Security, Real Time Marketing, Regulatory Developments, Social Media, State Attorneys General
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

By Jeffrey S. Jacobson on Posted in Advertising Litigation, Class Actions, Consumer Protection
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
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