Category Archives: Class Actions

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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

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

State AGs Still Really Don’t Like Cy Pres Class Action Settlements

By Jeffrey S. Jacobson on Posted in Class Actions, State Attorneys General
When class actions have a low settlement value relative to the size of the class, it is normal for defendants to pay out money to non-profit groups that advocate for issues relevant to the case rather than directly to class members. Last July, in “Give the Money to One Percenters, Not to Non-Profits,” I reported … 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

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

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

Understanding “Ascertainability” in Class Actions Now that the Second Circuit Has Said “No” To It.

By Jeffrey S. Jacobson on Posted in Class Actions
On Friday, the Second Circuit Court of Appeals’ decision in In re Petrobras Securities refused to adopt what it called a “’heightened’ two-part ascertainability test in class action cases.  The Second Circuit agreed that class action plaintiffs must show that ‘the class is defined with reference to objective criteria,’ but did not agree that plaintiffs … Continue Reading

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

By Jeffrey S. Jacobson on Posted in Class Actions, State Attorneys General
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

California Last State to Join Multistate Settlement of Western Union Fraud Schemes

By Kelley Drye on Posted in Class Actions, Enforcement, Federal & State Regulatory, State Attorneys General
Last week, California became the 50th state to join the multistate settlement with Western Union over its alleged complicity in fraud-induced wire transfers.  This followed Western Union’s $5 million agreement with 49 state and the District of Columbia for costs and fees in January, not to mention a whopping $586 million in settlement agreements with the … Continue Reading

Ad Law News and Views Newsletter

By Kelley Drye on Posted in Advertising, Antitrust, Class Actions, Consumer Protection, Dietary Supplements, Enforcement, Fashion and Retail, Federal Communications Commission, Federal Trade Commission, Food and Drug, Kelley Drye, Legislative Developments, NAD, Privacy and Information Security, Regulatory Developments, Social Media, State Attorneys General
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

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

New Jersey’s TCCWNA: New Year, Same Uncertainty

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

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

Protected: 2016 Advertising and Privacy Law Summit Attendee Follow up

By Kelley Drye on Posted in Advertising, Advertising and Privacy Law Summit, Advertising Litigation, Class Actions, Consumer Financial Protection, Consumer Product Safety, Consumer Protection, Dietary Supplements, Enforcement, Federal & State Regulatory, Federal Trade Commission, Food and Drug, Green Marketing, Internet of Things, Kelley Drye, Legislative Developments, Made in USA, Mobile Marketing, NAD, Native Advertising, Privacy and Information Security, Promotions, Real Time Marketing, Regulatory Developments
There is no excerpt because this is a protected post.

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

By Jeffrey S. Jacobson and Geoffrey Castello on Posted in Class Actions, Legislative Developments, Regulatory Developments, TCCWNA
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?

By Kelley Drye on Posted in Class Actions, Privacy and Information Security
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

By Jeffrey S. Jacobson on Posted in Class Actions
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
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