Topic: Consumer class actions

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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

California federal district courts split on calculating attorney’s fees for CAFA jurisdiction

A recent rash of California federal district court opinions now create a sharp split on whether or not potential attorneys’ fees awards may be considered when determining whether the monetary threshold has been met to secure removal jurisdiction under the Class Action Fairness Act of 2005, also known as “CAFA.” Litigants are now left wondering … Continue reading

California closely scrutinizes “Made in the USA” claims

Labeling products as “Made in the USA” has seen increased popularity recently, as retailers and manufacturers attempt to capitalize on consumers’ desire to support domestic jobs and US-made goods. Despite the seeming cachet of these statements, they may open companies up to false and misleading advertising claims, particularly in plaintiff-happy California. “Made in the USA” … Continue reading

Pom Wonderful ditches appeal of state law preemption ruling

On September 22, 2014, the Ninth Circuit approved Pom Wonderful’s request to drop its appeal of U.S. District Judge S. James Otero’s February 2013 order holding that Pom’s UCL and FAL false advertising claims are preempted by the federal Food Drug and Cosmetics Act.  The Ninth Circuit dismissed the appeal with prejudice. By way of … Continue reading

Breadth of primary jurisdiction expanded in class actions

The doctrine of primary jurisdiction gained ground in false advertising litigation, as Judge Sammartino of the Southern District of California dismissed a putative class action against Kashi Company because FDA signaled that it was reevaluating draft guidance that served as a partial basis for the plaintiffs’ complaint. In Saubers v. Kashi Co., 2014 WL 3908595 … Continue reading

Failure to define “natural” stops pretzel case false advertising claims at the pleading stage

A Northern District Court recently told plaintiff’s counsel that merely alleging that a product contains ingredients that are not “natural”, without supplying any objective definition of natural,  will not allow such claims to move past the pleading stage. On August 12, 2014, Judge Samuel Conti dismissed several false advertising claims filed by plaintiffs Robert Figy … Continue reading

Catalyst damages: Not out of the woods yet

So, you’re a defendant in a class action brought pursuant to California law and you are able to prevail at trial and have been found not liable for false advertising.  Assuming the case was brought under California’s Consumer Legal Remedies Act, which has a fee-shifting provision providing for the payment of fees to successful plaintiffs’ … Continue reading

Eighth Circuit says failing to allege personal injury is “not kosher” for Article III standing

The Eighth Circuit Court of Appeals, in an opinion by Chief Judge Riley, found that plaintiffs seeking to represent a class of purchasers of Hebrew National meat products did not have Article III standing because the named plaintiffs failed to allege that the products they themselves purchased were defective. Eleven named plaintiffs filed suit in … Continue reading

All natural: FDA silence continues to create problems for false advertising defendants

In recent years, a rash of consumer class actions have been filed alleging false or misleading advertising where a product is marketed as “natural,” “all-natural,” “made from 100% natural ingredients,” or other similar representations when the product allegedly contains some synthetic product or was processed in some way that does not occur in nature.  These … Continue reading