Topic: Recent consumer products case law

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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

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of California dismissed a putative class action against Kashi Company because FDA signaled that it was reevaluating draft guidance that served as a partial basis for the plaintiffs’ complaint.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

FTC and presumption of consumer reliance

Question:  What’s the difference between $600,000 and $14 million in a contempt action?  Answer:  Presumption of consumer reliance, according to the Second Circuit Court of Appeals in Federal Trade Commission v. BlueHippo Funding, LLC. The case began in 2003, when BlueHippo first began marketing computers and electronic products to consumers regardless of their credit history.  … 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