Topic: Recent consumer products case law

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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

Appellate ruling signals potential sea change in Prop 65 enforcement for reproductive toxins

A recent decision from the California Court of Appeal, First Appellate District, in Environmental Law Foundation v. Beech-Nut Corporation applied the familiar substantial evidence standard to uphold a trial court judgment in favor of defendants that has enormous implications for Prop 65 enforcement cases. Beech-Nut Trial Court Holding Beech-Nut involved claims that users were exposed … 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

Ski resorts and outdoor industries may face increasing liability

When a business’s consumers are skiers and snowboarders, knowing the potential liability for negligence is critical. Ski resort operators often encounter claims of unsafe terrain and failure to warn. Equipment manufacturers and sellers often run into product liability and personal injury claims regarding faulty bindings, skis, or other equipment. Outdoor Sports Liability Protections Early personal … Continue reading

UPDATE: California AG appeals foie gras ruling

In the wake of the federal court’s decision enjoining California’s foie gras ban, many restaurant owners rejoiced, making the delicacy immediately available. But restaurant owners may not want to throw out their creative menu techniques just yet. Following the court’s decision, the California Attorney General has filed a notice of appeal. The ball is in … 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

California AG fowls out on foie gras ban

Restaurants across California may no longer need to find creative ways to put foie gras on their menus, as a California federal court has ruled that federal law preempts California’s ban on the sale of the delicacy and enjoined the California Attorney General from enforcing the law. The ban In 2004, California enacted SB 1520, … 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

No plaintiff, no problem: Apple court allows action to proceed after plaintiff disqualified

Last week a N.D. California judge refused to dismiss a long-running class action suit against Apple Inc., despite disqualifying the last remaining named plaintiff. The parties rested Friday in the multi-million dollar antitrust trial accusing Apple of holding a digital-music monopoly, without a lead plaintiff to represent the class. The case began with three plaintiffs … 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