Topic: Consumer class actions

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CCPA enforcement trends–what we are seeing

By Jeff Margulies (US) and Katie Fragoso (US) on May 4, 2020 Posted in Consumer class actions

Despite limitations on private rights of action within the California Consumer Privacy Act, many were concerned that the plaintiffs’ bar would find creative ways to skirt CCPA’s boundaries. Four months into CCPA enforcement, those concerns have been borne out. We are seeing three worrisome enforcement trends: Expanding the CCPA’s private right of action; Cloaking a … Continue reading

Court tosses consumer class action based on alleged Prop 65 violation

By Jeff Margulies (US) on April 29, 2020 Posted in California Proposition 65, Consumer class actions

As a California appellate court once stated, and many businesses find out to their dismay, Proposition 65’s enforcement procedures make “the instigation of Proposition 65 litigation easy—and almost absurdly easy at the pleading stage and pretrial stages.” Consumer Defense Group v. Rental Housing Industry Members, 137 Cal. App. 4th 1185, 1215 (2006). A recent ruling … Continue reading

Braille on gift cards: ADA accessibility issue or novel shakedown?

By Jeff Margulies (US) and Eva Yang (US) on January 7, 2020 Posted in Consumer class actions, General, Recent consumer products case law

As retailers and restaurants are well aware, the proliferation of website accessibility claims filed by serial plaintiffs’ counsel is not slowing down. But now a new wave of lawsuits—Braille on gift cards—is flooding the New York federal courts. Recent cases Starting in October 2019, a handful of plaintiff’s counsel have filed more than 200 putative … Continue reading

FDA clarifies position on CBD, cracks down on 15 online stores

By Mark Faccenda (US), Will Troutman (US) and Katie Fragoso (US) on December 11, 2019 Posted in Consumer class actions, Food & Drug Administration

The U.S. Food and Drug Administration issued a revised consumer alert on Cannabidiol (CBD), warning that the agency is aware that some companies are marketing CBD products in ways that violate the federal Food, Drug and Cosmetic Act (FD&C Act), and that may put the health and safety of consumers at risk. The FDA also … Continue reading

Specific jurisdiction ruling gives companies a new weapon in combatting mass consumer actions

By Spencer Persson (US) on June 29, 2017 Posted in Consumer class actions

On June 19, 2017, the United States Supreme Court limited the ability of plaintiffs to pursue mass consumer actions in state court. In Bristol-Myers Squibb Co. v. Superior Court, the Supreme Court limited personal jurisdiction over corporations in state courts on due process grounds, holding that persons purportedly injured outside of the forum state did … Continue reading

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

By on April 21, 2017 Posted in Consumer class actions, Recent consumer products case law

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

By Jeff Margulies (US) on April 6, 2017 Posted in Consumer class actions, Recent consumer products case law

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?

By on March 29, 2017 Posted in Consumer 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

Discount class action theories broaden in California

By Spencer Persson (US) on March 15, 2017 Posted in Consumer class actions, Recent consumer products case law

The plaintiffs’ bar has a new angle on retailer discounting cases, which attack California retailers who discount merchandise by showing an “original” or “former” price next to a much lower, discounted price to imply tremendous savings. Initially, plaintiffs relied on California’s False Advertising Law, Unfair Competition Law, and the Consumer Legal Remedies Act to allege … Continue reading

Second Circuit guts jury verdict with post-trial decertification

By on July 20, 2016 Posted in Consumer class actions

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

By on May 27, 2016 Posted in Consumer class actions, Food & Drug Administration

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

By on May 17, 2016 Posted in Consumer class actions

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

By on April 20, 2016 Posted in Consumer class actions, Recent consumer products case law

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

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

By on March 2, 2016 Posted in Consumer class actions

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

By on February 29, 2016 Posted in Consumer class actions

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

UPDATE: Seventh Circuit ascertainability holding petitioned to the Supreme Court

By on November 16, 2015 Posted in Consumer class actions, Recent consumer products case law

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

By on August 24, 2015 Posted in Consumer class actions, Recent consumer products case law

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

UPDATE: Bill to amend California’s “Made in USA” law gets one step closer to becoming law

By Lauren Shoor (US) on July 17, 2015 Posted in Consumer class actions, Recent consumer products case law, Recent legislation and regulations

Following up on our recent post about two bills pending in the California legislature that would amend California’s “Made in USA” law—yesterday the Assembly passed SB 633. Next, SB 633 will be sent back to the Senate for a concurrence vote, and assuming the Senate approves, the bill would then go on to the Governor’s … Continue reading

Changes coming to California’s “Made in USA” law?

By Lauren Shoor (US) on July 16, 2015 Posted in Consumer class actions, Recent legislation and regulations

California’s “Made in the USA” law imposes strict standards on when products may be labeled “Made in the USA.” This strict standard has resulted in recent litigation against companies whose products allegedly contain some (albeit relatively minor) foreign components. But, the Legislature is seeking to amend the law to loosen this standard with two pending … Continue reading

Court rules California “Made In USA” claims not actionable if only on product websites

By Lauren Shoor (US) on June 29, 2015 Posted in Consumer class actions, Federal Trade Commission

We have been following California’s “Made in the USA” standard and recent cases interpreting it. While courts so far have been reluctant to dismiss claims at the pleading stage, last week a federal judge dismissed a class action claiming Lands’ End violated California’s “Made in the USA” standard. In Oxina v. Lands’ End, Inc., plaintiff filed a false … Continue reading

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

By on June 18, 2015 Posted in Consumer class actions, Recent consumer products case law

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

California Court of Appeal finally issues guidance to retailers on privacy issue for credit card customers

By Lauren Shoor (US) on May 25, 2015 Posted in Consumer class actions, Recent consumer products case law

California’s Song-Beverly Credit Card Act, Civil Code section 1747.08, prohibits retailers from requesting or requiring “personal identification information” (PII) in connection with consumer credit card transactions and then recording that information. Following a February 2011 California Supreme Court opinion in Pineda v. Williams-Sonoma Stores, Inc., plaintiffs filed hundreds of putative class action complaints against retailers … Continue reading

UPDATE: Court approves Red Bull settlement

By on May 17, 2015 Posted in Consumer class actions

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”

By on May 8, 2015 Posted in Consumer class actions, Recent consumer products case law

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