Jeffrey Warshafsky at Proskauer Rose LLP

Same Song, Different Tune: Plaintiffs’ Bar Adds the Song-Beverly Credit Card Act to its Privacy Repertoire

Repurposing old laws to challenge new technologies has become the new normal in the privacy space. Plaintiffs continue to bring a kaleidoscope of privacy claims against companies in the tech age, reviving laws like the...more

9/6/2024 / CA Supreme Court , CIPA , Corporate Counsel , Eavesdropping , Personally Identifiable Information , Popular , Song-Beverly Credit Card Act , TCPA , Technology , Tracking Systems , VPPA , Wiretapping

Privacy Class Action Spotlight: Surge of Privacy Class Actions in Arizona Targeting Email Pixel Tracking

There has been a recent surge of privacy class action lawsuits under the Arizona Telephone, Utility, and Communication Service Records Act targeting the use of common email marketing analytics technologies. Defendants are...more

9/5/2024 / Arizona , Article III , CIPA , Class Action , Email , Privacy Laws , Standing , Telecommunications

Reasonable Consumer Analysis Leads to Dismissal of Claims of Greenwashing

Many brands have reformulated beloved products with “cleaner” ingredients, while others have curated a special selection of “clean” products to offer their customers. Advertisers’ efforts, however, can run into trouble if...more

6/14/2024 / Advertising , Class Action , Greenwashing , Sephora

Court Rejects Claims that Website’s Live Chat Feature Violates California’s Prohibitions on Wiretapping and Eavesdropping

Central District of California dismisses lawsuit alleging that a third-party’s interception of communications over a website’s live chat feature violated California’s wiretapping and eavesdropping prohibitions. ...more

5/22/2024 / California , CIPA , Eavesdropping , Privacy Laws , State Privacy Laws , Websites , Wiretapping

Second Circuit Serves Up a Win for Subway in TCPA Case

While there might not be such a thing as a free lunch, Subway in 2016 texted a consumer that she could receive a free bag of chips with any purchase. The text let the consumer know she could respond STOP to opt out of the...more

5/14/2024 / ATDS , Class Action , Putative Class Actions , TCPA , Unfair or Deceptive Trade Practices

Courts Neutralize Baseless Acid Lawsuits

Over the last few years, hundreds of lawsuits have been filed, and many more threatened, involving advertising claims that a product has no artificial preservatives or flavors. In many cases, the plaintiffs allege such...more

5/8/2024 / Class Action , Deceptive Intent , Dietary Supplements , Disclosure Requirements , False Advertising , False Marking , Food Labeling , Frivolous Lawsuits

Plead Your Case, Not Your Secrets: A Discussion of Recent Trade Secret Complaints

Taking legal action to protect a trade secret is unlike other intellectual property litigation since what you’re trying to protect is a secret. Plaintiffs must navigate a fine line between pleading their complaint with enough...more

5/3/2024 / Corporate Counsel , Defend Trade Secrets Act (DTSA) , Failure To State A Claim , Intellectual Property Litigation , Intellectual Property Protection , Misappropriation , Pharmaceutical Patents , Trade Secrets

That’s a “Wrap”: Second Circuit Upholds Click-Wrap Mandatory Arbitration Provision

This past Friday, the Second Circuit reversed a lower court’s denial of a motion to compel arbitration in a putative consumer class action against fintech company Klarna. Edmundson v. Klarna, Inc., Case No. 22-557-cv (2d...more

11/7/2023 / Arbitration , Auto-Renewal , Corporate Counsel , FinTech , Mandatory Arbitration Clauses , Motion to Compel , Putative Class Actions , Subscription Services , User Agreements

FTC Finalizes Updates to Endorsement Guides, Reflecting Increased Focus on Online Reviews and Social Media Marketing

This week the FTC announced that it finalized its revisions to the Endorsement Guides, which give advertisers guidance on ensuring that their use of endorsements or testimonials complies with the FTC Act. At the same time,...more

7/3/2023 / Advertising , Celebrity Endorsements , Disclosure Requirements , Endorsements , Federal Trade Commission (FTC) , FTC Act , FTC Endorsement Guidelines , Influencers , Marketing , Online Endorsements , Social Media , Unfair or Deceptive Trade Practices

Place-Of-Origin Class Actions, FTC Scrutiny May Rise In 2023

It has been almost 40 years since Bruce Springsteen first famously celebrated being American-made with his hit "Born in the USA." From an advertising industry perspective, this song's lasting popularity is no surprise;...more

1/17/2023 / Advertising , Class Action , Department of Agriculture , Department of Justice (DOJ) , Enforcement , Federal Trade Commission (FTC) , Made in the USA , Misleading Statements , Penalties , Product Labels , USDA

A Slammed (Open)Door: FTC Reaches $62 Million Proposed Settlement with Real Estate Company

Last month, the FTC announced that it reached a $62 million proposed settlement with Opendoor Labs, related to the Commission’s investigation of the company’s representations in advertising to prospective home sellers....more

9/7/2022 / Federal Trade Commission (FTC) , Marketing , Misrepresentation , Settlement

Advertising Class Action Trends in 2021

2021 saw well over 500 new class actions in the advertising space. With the number of these cases increasing, it is more important than ever for businesses to stay on top of the latest trends, including the types of products...more

5/2/2022 / Advertising , Class Action , Dietary Supplements , False Advertising , Food Labeling , Food Marketing , Natural Products , Unfair or Deceptive Trade Practices

Instant Dismissal: Court Dismisses Instant Oatmeal Case against Whole Foods Market

Judge Rachel Kovner of the Eastern District of New York recently dismissed a putative class action challenging Whole Foods Market’s label claims that its Oats & Flax Instant Oatmeal contains “dehydrated cane juice solids” and...more

1/26/2022 / False Advertising , Food Labeling , Food Manufacturers , Food Marketing , Motion to Dismiss , Putative Class Actions , Unfair or Deceptive Trade Practices

Court Cuts Short Challenge to Zicam’s “Clinically Proven to Shorten Colds” Claims

In Yamasaki v. Zicam, LLC, Case No. 21-cv-2596 (N.D. Cal. 2021), Plaintiff alleged certain Zicam® cold remedy products were falsely advertised as “clinically proven to shorten colds.” On this basis, Plaintiff sought to...more

12/14/2021 / Amended Complaints , Dismissal With Prejudice , Failure To State A Claim , False Advertising , Motion to Dismiss , Product Labels , Putative Class Actions , Unfair or Deceptive Trade Practices

On Notice: Misattributed, False, or Mischaracterized Endorsements

Continuing our series on the FTC’s Notice of Penalty Offenses Concerning Endorsements, this post considers the issues of falsely attributed, mischaracterized, and fabricated endorsements – practices that the FTC highlighted...more

11/16/2021 / Advertising , Celebrity Endorsements , Endorsements , Federal Trade Commission (FTC) , FTC Endorsement Guidelines , Influencers , Lanham Act , Misrepresentation , Penalties , Unfair or Deceptive Trade Practices

On Notice: FTC Issues Warning to Hundreds of Companies Regarding the Use of Fake Reviews and Other Misleading Endorsements in...

Prompted by the proliferation of social media advertising that often blurs the line between authentic content and sponsored posts, the Federal Trade Commission last week sent more than 700 companies a Notice of Penalty...more

10/18/2021 / Advertising , Enforcement Guidance , Fake Reviews , Federal Trade Commission (FTC) , Misrepresentation , Online Platforms , Online Reviews , Social Media , Unfair or Deceptive Trade Practices

The Rise and Fall of “Vanilla” Labeling Challenges

Beginning in 2020, the advertising world saw an explosion of putative class-actions challenging the use of “vanilla” to describe products where the vanilla flavoring allegedly is not derived exclusively from the vanilla bean...more

8/12/2021 / Advertising , False Advertising , Food & Drug Regulations , Food Labeling , Grocery Stores , Putative Class Actions , Unfair or Deceptive Trade Practices , Whole Foods

More Than “Puffery”: Claims Against Canada Goose Survive Motion to Dismiss

Judge Victor Marrero of the Southern District of New York recently largely denied a motion to dismiss claims that Canada Goose misled consumers by representing that the fur on Canada Goose jackets is ethically and sustainably...more

8/4/2021 / Advertising , Class Action , Fashion Design , Fashion Industry , Misleading Impressions , Motion to Dismiss , Product Labels , Retail Market , Sustainable Business Practices , Unfair or Deceptive Trade Practices

Judge Wipes Out “Wet Ones” False Advertising Suit

Judge Todd W. Robinson of the Southern District of California recently dismissed a putative class action against Edgewell Personal Care, the makers of Wet Ones antibacterial hand wipes, alleging it misled consumers by...more

7/14/2021 / Advertising , Class Action , Failure To State A Claim , Labeling , Marketing , Misleading Statements , Motion to Dismiss , Personal Care Products , Product Labels , Unfair or Deceptive Trade Practices

Another Court Gets on (Hover) Board with Online Marketplace Liability for Defective Products

In two prior blog posts, we covered how online marketplaces, like Amazon, are being held responsible for defective and counterfeit products sold on their platforms. In the latest development in this space, California’s Court...more

4/29/2021 / Amazon , Chain of Distribution , Counterfeit Goods Regulation , Counterfeiting , E-Commerce , Internet Retailers , Product Defects , Strict Liability

Supreme Court Curtails FTC Power to Seek Restitution in Court

A unanimous Supreme Court yesterday significantly curtailed the FTC’s ability to obtain the equitable monetary remedies of restitution and disgorgement of profits from entities accused of engaging in deceptive practices in...more

4/23/2021 / AMG Capital Management LLC v FTC , Enforcement Authority , Federal Trade Commission (FTC) , FTC Act , FTCA Section 13(b) , Injunctive Relief , Permanent Injunctions , SCOTUS

Top Dog: Champion Petfoods Wins Dismissal of Dog Food Suit

Minnesota federal district court Judge Patrick J. Schiltz recently dismissed with prejudice an alleged class action claiming that Champion Petfoods misrepresented the quality of its dog food and ingredients by failing to...more

3/9/2021 / Advertising , Animal Food , Class Action , Dismissal With Prejudice , Dogs , False Advertising , Food Labeling , Pets , Unfair or Deceptive Trade Practices

Not a Kernel of Standing: Ninth Circuit Affirms Dismissal of Complaint Against Pop Secret

The Ninth Circuit recently affirmed the dismissal of a putative class action alleging Diamond Foods engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially...more

3/3/2021 / Article III , Breach of Warranty , Dismissals , Injury-in-Fact , Nuisance , Product Labels , Standing , Unfair or Deceptive Trade Practices

Key 2020 Decisions from the NAD and NARB

Now that 2020 is in the rearview mirror (*collective sigh of relief*), we wanted to share our perspective on notable decisions and trends from this past year at the National Advertising Division and the advertising...more

1/29/2021 / Advertising , Beverage Manufacturers , Consumer Product Companies , Coronavirus/COVID-19 , Dietary Supplements , False Advertising , Federal Trade Commission (FTC) , Food Labeling , Health Claims , Labeling , Marketing , NAD , NARB , Personal Care Products

Proskauer on Advertising Law: Key 2020 Decisions from the NAD and NARB