Topic: Consumer class actions

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Lack of defendant’s consumer records may not mean a class is unascertainable

A California Court of Appeal recently held that a class is not unascertainable simply because individual class members cannot be identified from a defendant’s records so long as there is some objective means for identifying class members. In Aguirre v. Amscan Holdings, Inc., plaintiff alleged that defendant Party America violated the Song-Beverly Credit Card Act … 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

Plaintiffs’ energy zapped in Redline Xtreme lawsuit

A Florida federal judge refused to certify a nationwide class of purchasers of Redline Extreme Energy Drink stating that the class lacked ascertainability (a topic we have previously addressed on this blog). The plaintiffs claimed in Mirabella v. Vital Pharmaceuticals, Inc., S.D. Florida Case No. 0:12-cv-62086, that Vital Pharmaceuticals Inc. concealed the dangerous side effects … Continue reading

California court creates split of authority for class action damages modeling in the same case

Class certification is a do or die moment for class action plaintiffs. Currently, a hotly contested issue at class certification is whether or not a plaintiff can propose a damages model that is common to the putative class. In 2013, the U.S. Supreme Court held in Comcast v. Behrend that at the class certification stage, … Continue reading

Making online terms and conditions stick

Because the interaction between online retailers and their customers is limited, online retailers have little choice but to present terms and conditions of sale on their websites. These online terms and conditions present concepts important to online retailers, including arbitration and choice of law provisions. The way in which online retailers present these terms and … Continue reading

California court certifies “100% Natural” class for GMO cooking oil

Last week, a court in the Central District of California certified classes in eleven states over claims that Wesson Oil products are not “100% Natural.” In the lawsuit, plaintiffs claim that ConAgra misled them by labeling Wesson cooking oil “100% natural,” even though the oils contain genetically modified organisms, or GMOs.  No receipts required Strongly on … 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

UPDATE: No Appeal In Jeans “Made In USA” Claim

We previously posted about the case Paz v. AG Adriano Goldschmied, in which the Southern District of California denied a motion to dismiss a complaint alleging violations of California’s “Made in the USA” standard. In denying the motion, the court held that California’s stricter standard (i.e., all components of a product, even a screw, must … Continue reading

Class certified in EZ Seed case in New York and California

Early this week, Judge Vincent Briccetti in the Southern District of New York certified classes of consumers in New York and California who purchased the product Scotts Turf Builder EZ Seed. In re Scotts EZ Seed Litigation. The lawsuit alleges violations of the UCL, FAL, CLRA and New York’s General Business Law based on sales … Continue reading

Ninth Circuit says plaintiff naysaying not enough to challenge CAFA removal

The Ninth Circuit recently interpreted the Supreme Court’s newly minted decision in Dart Cherokee Basin Operating Co., LLC v. Owens, holding that plaintiffs seeking remand of actions removed to federal court pursuant to the Class Action Fairness Act must present evidence when mounting challenges to a defendant’s evidentiary showing that the $5 million jurisdictional threshold … Continue reading

Ninth Circuit finally poised to decide ascertainability split

At long last, the Ninth Circuit has heard the cries of confused class action litigants and will be weighing in on whether self-identification of class members (without the benefit of a receipt or other indicia of purchase) is enough to pass the implicit ascertainability requirement of Rule 23. As we have often commented on this … Continue reading

Circuit split settled – notice of removal under CAFA does not require evidence

Class action litigators have long faced the unsettled question of what amount of evidence is necessary to support the removal of a state court action to federal court under the Class Action Fairness Act, the answer often changing depending on the specific jurisdiction. No longer. On December 15, 2014, in a 5-4 decision, the United … Continue reading

“All natural” claims against Dole nixed; no deception if synthetics expected in food

As we previously posted in “All natural: FDA silence continues to create problems for false advertising defendants”,  the Food and Drug Administration’s failure to provide a definition of what a “natural” ingredient is makes it difficult for companies defending against false advertising claims based on allegations that food products are marketed as “natural” when the product allegedly … Continue reading

San Bernardino judge finds homeopathic drug labelling is not false or misleading

On November 25, 2014, just in time for Thanksgiving, Judge Bryan Foster in San Bernardino Superior Court tentatively entered a judgment in favor of Green Pharmaceuticals, following a week-long bench trial. The case, filed on June 28, 2011 by plaintiff Rachel Rosendez, brought claims against Green Pharmaceuticals stemming from its manufacture and sale of the … Continue reading

Class claims certified for Hain Celestial Organic Cosmetics

Last week, Magistrate Judge Beeler in the Northern District of California certified a class of purchasers of cosmetics marketed as “organic” by The Hain Celestial Group, Inc. In so doing, Judge Beeler weighed in on several hot spot issues for class certification, including ascertainability, consumer reliance and class-wide damages models. Her determinations seem generally in … Continue reading

One plaintiff not enough to prove advertising likely to deceive reasonable consumers

It seems that lately, all it takes to bring a false advertising class action regarding “all natural” or “no sugar added” representations on product packaging is the say-so of one consumer who claims the representations are misleading (even though they might not be technically “false”). Indeed, at the motion to dismiss stage, courts tend to … Continue reading

Certification of damages class denied in “All Natural Fruit” false labeling suit

Updating our previous post, another federal district court has interpreted Comcast Corp. v. Behrend to require plaintiffs to demonstrate a viable “means of showing damages on a classwide basis through common proof,” and denied certification of a damages class based on a challenge to the validity of the regression model offered by the plaintiff’s expert. … Continue reading

Jamba Juice class deemed ascertainable; Skinnygirl class is not

Federal courts continue their divide on ascertainability requirements for small-ticket items in the wake of Carrera v. Bayer. Just recently, district courts in California and Illinois (neither of which are bound by Carrera), took opposite stances in applying the 3rd Circuit decision, leaving litigants to wonder when or if the Supreme Court is going to weigh … Continue reading

UPDATE: Recent jeans case confirms harsher “Made In USA” standards exist in California

A California federal district court judge recently provided some clarity on the apparent disparity between California’s “Made in the USA” law and the standard set forth by the Federal Trade Commission. The Southern District Court of California’s recent decision in Paz v. AG Adriano Goldschmied confirms that California’s “Made in the USA” standard sets forth … Continue reading

No more rubber stamps: courts critical of class action settlements

A number of recent cases show courts taking a more active role in approving class action settlements, more closely scrutinizing settlements meant to benefit class members. Just last month in Redman v. RadioShack Corporation the Seventh Circuit rejected a class action settlement providing for dissemination of $10 coupons to class members and $1 million in … Continue reading

Courts disagree whether attacks on expert damage models defeat class certification in the wake of Comcast

Federal courts continue to be split on whether the Supreme Court’s 2013 ruling in Comcast Corp. v. Behrend  requires plaintiffs seeking class certification to present viable, common methodologies to prove class-wide injury and damages. Two recent federal decisions highlight these competing views of Comcast. Uncertainty over the standards for the use of expert damages testimony … Continue reading

Red Bull settlement problems show consequences of certifying unascertainable classes

Since the Third Circuit’s opinion in Carrera v. Bayer Corp., courts have been battling with the approach to consumer classes for small-ticket items because consumers often do not retain receipts or proofs of purchase (think consumer products like OTC drugs, food items, beverages, etc.). The challenge is that without receipts or proofs of purchase, a … Continue reading

Purchase one product, sue for them all?

An emerging trend in consumer product class actions is for a class representative to bring claims for entire lines of products, despite only purchasing one of the products. Although traditional principles of standing seem to dictate the death of this argument, more and more courts allow standing for unpurchased products that are “substantially similar” to … Continue reading

Jimmy John’s settles class action litigation over missing sprouts

Never underestimate what could be the subject of a false advertising class action lawsuit. Take, for example, a case recently settled by the sandwich chain Jimmy John’s, LLC. On Valentine’s day in 2013, plaintiff Heather Starks filed a lawsuit against the sandwich-maker, alleging that she purchased sandwiches advertised online and in-store to contain alfalfa sprouts. … Continue reading
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