Stephanie Stroup (US)

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Your product labels could be deceptive based on what’s on a competitor’s labels

In what seems to be an ever-expanding zone of liability for false advertising claims on food products, the Ninth Circuit ruled this week that “external facts” – aka what a competitor does or does not put on their labels – can make the labels of another product misleading by implication. In Bruton v. Gerber, plaintiff … Continue reading

ALERT: Merchants face new wave of class actions alleging excessive shipping charges

Recently filed complaints seemingly forecast a new type of class action in California courts: consumer protection claims based on allegations that merchants are overcharging consumers for shipping and delivery charges. Such claims have the potential to affect all companies selling consumer goods online or by mail order. Even though there is no specific statute forbidding … Continue reading

Do California 998 settlement offers have legs in class actions?

If you litigate in California, chances are you have come across the CCP 998 settlement offer. Presenting the proverbial “carrot and stick,” 998 offers force plaintiffs to effectively “bet”  on their success in a case. If a plaintiff refuses a 998 settlement offer, their ability to recover costs and attorneys’ fees (if available) will be … Continue reading

California Court of Appeal refuses to honor jury trial waiver

In today’s business world, companies frequently enter into contractual provisions with their customers to limit jury trial exposure as part of managing future risks. However, if you think that agreeing that any dispute can be resolved without a jury trial is enough to insulate you and your business from this threat – THINK AGAIN. Just … Continue reading

Second Circuit guts jury verdict with post-trial decertification

Given the low probability that a class action will go to trial and the high probability that a settlement favorable to plaintiffs and their attorneys will be reached after class certification, there is a consistent “race to certification” in many consumer class action matters. The plaintiffs’ bar frequently frames claims with an eye towards meeting … Continue reading

FDA says evaporated cane juice labels are false and misleading

On Wednesday, the FDA issued guidance on the use of the phrase “evaporated cane juice” in order to “enhance consumers’ ability to make informed choices among sweeteners by promoting accurate and consistent labeling.” In an opinion that will have far-reaching implications in the food industry, the FDA concluded that “the term ‘evaporated cane juice’ is false or … Continue reading

Southern District of California rejects medical sling class bid

Sometimes, although it seems like not very often, California courts do find that consumer fraud cases are not appropriate for class certification. Take, for example, the decision that came down last week out of the Southern District of California. In Mezzadri v. Drive Medical, plaintiff claimed that defendant misrepresented the quality and the materials used … Continue reading

Chobani motion to dismiss unceremoniously vacated

Last month, the Ninth Circuit, in an opinion scant on explanation, vacated the order of Judge Koh in the Northern District of California dismissing false advertising class action claims Chobani, LLC, the maker of Chobani Greek Yogurt. The class action alleged that Chobani falsely advertised its yogurt in two ways: 1) by referring to the sweetener … Continue reading

UPDATE: Pom Wonderful victory proves Pyhrric

In 2014, Pom Wonderful made headlines when the Supreme Court, in an 8-0 opinion, ruled in its favor that the Food, Drug and Cosmetics Act does not preclude Lanham Act claims due to conflict between the two statutes.  This opinion allowed Pom Wonderful’s claims against Coca-Cola to survive and between March 11 and March 18, … Continue reading

Coca-Cola requires proof of purchase to pay out class settlement for juice false ad suit

Last week, Coca-Cola reached a settlement in a consumer class action alleging that it falsely advertised its Minute Maid Enhanced Pomegranate Blueberry Flavored Blend of 5 Juices by creating the impression it was made primarily of pomegranate and blueberry juices, when it was actually composed mostly of cheaper apple and grape juices. These allegations by … Continue reading

Ninth Circuit reverses dismissal of another consumer class action against Hain Celestial

In what is becoming a bit of a pattern, the Ninth Circuit has again ruled that a lower court’s dismissal of a consumer class action against The Hain Celestial Group was the wrong result. On December 5, 2013, Judge Manuel Real dismissed without leave to amend claims by Alessandra Balser and Ruth Kresha that Hain … Continue reading

FDA changes course, now seeking public comments on the definition of “natural” in food labeling

Last month, after decades of relative inaction regarding the definition of the term “natural,” the Food and Drug Administration announced that it was accepting public comments on the use of the word, including whether it can be false or misleading on food labels. Among other questions, the FDA asks: Whether it is appropriate to define … Continue reading

UPDATE: Seventh Circuit ascertainability holding petitioned to the Supreme Court

We previously reported on the Seventh Circuit’s decision in Mullins v. Direct Digital, LLC, in which the Court systematically refuted every policy argument made to support holdings like the Third Circuit’s opinion in Carrera, requiring a plaintiff to demonstrate that class members can be identified through a reliable and administratively feasible manner in order to … Continue reading

Seventh Circuit intensifies ascertainability split

Last month, the Seventh Circuit further added to the tension between the circuits regarding the interpretation and application of Rule 23(f)’s shadow ascertainability requirement. As we previously reported, we await a ruling in the Ninth Circuit on this issue; it is almost certain that this recent opinion will now be added to the mix affecting … Continue reading

Supreme Court will determine whether class action plaintiffs can be bought off

The Supreme Court has granted cert to decide whether or not class action defendants can make the claims of named plaintiffs invalid by offering early settlements. This practice, known as “mooting” an action or the “pick-off” strategy, occurs when, prior to class certification, a defendant offers a class representative a full settlement, completely covering any … Continue reading

UPDATE: Court approves Red Bull settlement

Although we were wary that caps on the Red Bull settlement could ultimately be rejected by the court based on dilution concerns, on May 12, 2015, Judge Katherine Polk Failla out of the Southern District of New York approved the settlement and entered an order of dismissal with prejudice in both Red Bull class actions. The … Continue reading

Bourbon need not be “made by hand” to be advertised as “handmade”

Proving that a false advertising claim can be thrown out on a motion to dismiss (despite recent cases in California indicating the contrary), a Florida federal judge tossed false advertising claims brought against Maker’s Mark Distillery, Inc., determining that consumers could not possibly interpret the phrase “handmade” – used to market the company’s bourbon whiskey … Continue reading

Plaintiffs’ attorneys told to “get real” with fee award request

Although false advertising class action law in California is generally (and accurately) perceived as bending over backwards to advantage plaintiffs, recent fee award decisions may make plaintiffs’ lawyers more wary about bringing lawsuits that are not slam dunk victories. This week, Judge George H. Wu out of the Central District of California slammed plaintiff attorneys by awarding … Continue reading

Ninth Circuit says “not so fast” for Hain Celestial dismissal

Last Friday, the Ninth Circuit reversed a holding by the District Court for Southern District of California dismissing “All Natural” false advertising claims against Hain Celestial cosmetics because they were barred by the primary jurisdiction doctrine. The Court stated that dismissal of the claims was the improper result, even if the FDA did have primary … Continue reading

Consumer products law blog featured in leadership series

The Consumer Products Law Blog was recently featured in the LexBlog Network’s Leadership Blog series. Learn how our blog network identifies and posts legal updates you need before you may even be aware of it. LXBN Leaders: The Philosophy Behind Norton Rose Fulbright’s Business-Driving Blog Network… Continue reading

Ninth Circuit says manifestation of a defect does not matter at the pleading stage

Last month, the Ninth Circuit held that a district court in the Western District of Washington erred by striking class allegations from a complaint because a product defect did not manifest in the vast majority of products purchased. District Court Strikes Class Allegations From Complaint In the case, several named plaintiffs filed a class action … Continue reading

Would-be competitor lacks standing to sue for false advertising

The United States District Court for the District of Maine has held that a competitor who is “thinking” about going into business does not have Article III standing to bring a Lanham Act false advertising suit against an established competitor. In this case, Maine Springs, a company created to establish water bottling operations in Poland Spring, Maine, … Continue reading

Ninth Circuit says no preemption for Benecol’s “No Trans Fat” label claims

Reversing an order from the Southern District of California, the Ninth Circuit has held that state law false advertising claims based on “No Trans Fat” statements on the butter/margarine substitute Benecol are not preempted by federal law. Robert Reid filed class claims for violations of California’s Consumer Legal Remedies Act, Unfair Competition Law and False … Continue reading

UPDATE: Ninth Circuit briefing in ConAgra ascertainability appeal complete

As we recently posted, the Ninth Circuit will finally tackle the circuit split on ascertainability, agreeing to hear the appeal of a class certification denial in the case Jones v. ConAgra. ConAgra’s answering brief has now been filed, in addition to amicus briefs filed by Public Citizen, Inc. and Center for Science in the Public … Continue reading