Topic: Recent consumer products case law

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Drone registry rule grounded by court

Updating our previous post about the Federal Aviation Administration’s rules and regulations regarding the use of drones, an appeals court has struck down one of the more hotly disputed aspects of the program – the FAA’s registration requirement for recreational drone owners. As part of the FAA’s drone program, FAA regulations require recreational drone users … Continue reading

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

Discount class action theories broaden in California

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

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

Update: FTC gets $13.4 million judgment against BlueHippo

  Updating a prior post, on May 2, 2016, the Federal Trade Commission (FTC) announced its receipt of a $13.4 million judgment against the CEO of BlueHippo, after the Second Circuit overturned the district court’s determination that BlueHippo’s damages were limited to $600,000 in 2014. BlueHippo marketed computers and electronics to consumers regardless of their … Continue reading

DC Consumer Protection Procedures Act claims worth less than previously thought

Washington, DC’s Consumer Protection Procedures Act allows plaintiffs to recover “treble damages, or $1,500 per violation, whichever is greater” for a broad range of trade related violations, including false advertising, breach of warranty, and false representations regarding repairs. Because CPPA cases involve consumer goods and services that are typically inexpensive, $1,500 is almost always the … 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

New REACH guidance on substances in articles

ECHA has recently issued revised guidance on substances in articles under REACH. The guidance follows a September 2015 ruling from the European Court of Justice that invalidated ECHA’s prior interpretation – effectively turning this aspect of REACH compliance on its head. The REACH Regulation The REACH Regulation addresses the production and use of chemical substances … 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

CA Supreme Court won’t respond to question from Ninth Circuit on privacy law for credit card customers

In addition to refusing to hear an appeal in Harrold v. Levi Strauss & Co., which we previously posted about, the California Supreme Court also declined to respond to a question the Ninth Circuit in Davis v. Devanlay Retail Group, Inc. certified to the Court, seeking clarification of California Song-Beverly Credit Card Act’s reach regarding … Continue reading

UPDATE: Cal. Supreme Court refuses review of privacy issue for credit card customers

Yesterday the California Supreme Court refused to hear an appeal in Harrold v. Levi Strauss & Co., a case that clarified the scope of California’s Song-Beverly Credit Card Act, Civil Code section 1747.08, in the context of retailers’ requests for personal identification information from credit card customers standing at the point of sale in a … 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

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

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

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

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

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

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

California’s Made In USA standard survives another test in court

Another court in the Southern District of California has agreed that California’s Made in USA law is more stringent than the federal standard, holding that the law is not preempted by the Federal Trade Commission Act or the Textile Fiber Products Identification Act.  But the court also addressed a new claim—that the California law violates … 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

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

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
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