Topic: Recent consumer products case law

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Ninth Circuit upholds preliminary injunction barring Prop 65 acrylamide lawsuits

By Jeff Margulies (US) on April 12, 2022 Posted in California Proposition 65, Recent consumer products case law

A year ago, we wrote about a preliminary injunction that barred new lawsuits seeking to enforce California Proposition 65 cancer warning requirements for acrylamide in food. That injunction was appealed, and on March 17, the Ninth Circuit Court of Appeals–which is not known as “business friendly”–decided the injunction was proper. This is a major win for … Continue reading

Plaintiffs must actually intend to use services for website accessibility claims

By Jeff Margulies (US) and Eva Yang (US) on October 25, 2021 Posted in General, Recent consumer products case law

Businesses scored a win in a recent California Court of Appeal decision affirming a defense jury verdict in a website accessibility lawsuit. In Cheryl Thurston v. Omni Hotels Management Corp., the court held that for a plaintiff to prevail in such a claim, she must show a “bona fide intent” to actually use the defendant’s … Continue reading

Breach of contracts and a social media gaming celebrity

By Will Troutman (US) and Eva Yang (US) on August 4, 2020 Posted in General, Recent consumer products case law

As more and more consumer markets brands turn to influencers and social media stars to promote their products, novel legal issues are bound to arise! Sue Ross and Eva Yang provide their analysis on a case recently litigated in the Southern District of New York that includes claims under California’s Talent Agency Act and the … Continue reading

Federal court says Prop 65 warnings for glyphosate violate the First Amendment

By Jeff Margulies (US) on June 29, 2020 Posted in California Proposition 65, Recent consumer products case law

On June 22, 2020, Judge William Shubb of the US District Court for the Eastern District of California entered an order prohibiting the State of California from requiring Prop 65 warnings for glyphosate, the active ingredient in the herbicide Roundup®. The decision was not based on whether glyphosate had been improperly listed under Prop 65, … Continue reading

Class actions against CBD companies proliferate under federal and state law

By Mark Faccenda (US), Jeff Margulies (US), Will Troutman (US) and Katie Fragoso (US) on February 12, 2020 Posted in Food & Drug Administration, Recent consumer products case law, Recent legislation and regulations

On the heels of FDA sending out a tranche of warning letters to sellers of cannabidiol (CBD) products, enterprising plaintiffs lawyers have filed a spate of consumer class actions over these types of products. The complaints put forth a number of different theories tied to the current illegality of these products due to FDA regulation. … 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

Drone registry rule grounded by court

By Will Troutman (US) and Andy Guo (US) on May 25, 2017 Posted in Recent consumer products case law, Recent legislation and regulations

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

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

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

California Court of Appeal refuses to honor jury trial waiver

By on February 9, 2017 Posted in General, Recent consumer products case law

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

By Susan Ross (US) on June 30, 2016 Posted in Federal Trade Commission, Recent consumer products case law

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

By on May 5, 2016 Posted in Recent consumer products case law

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

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

UPDATE: Pom Wonderful victory proves Pyhrric

By on April 6, 2016 Posted in Recent consumer products case law

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

By Will Troutman (US) on January 7, 2016 Posted in Recent consumer products case law, Recent legislation and regulations

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

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

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

By Lauren Shoor (US) on August 31, 2015 Posted in Recent consumer products case law

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

By Lauren Shoor (US) on August 27, 2015 Posted in Recent consumer products case law

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

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

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

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