Lawrence Weinstein

Lawrence Weinstein

Proskauer Rose LLP

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Stars Fail to Align for P&G, as Supreme Court Rejects Class Certification Appeal

Readers may recall our coverage in recent months of the challenge by Procter & Gamble (P&G) to an order certifying a multi-state consumer class in a case asserting that P&G falsely advertised its probiotic supplement Align....more

4/25/2016 - Actual Injuries Class Action Class Certification Commonality Corporate Counsel False Advertising Motion To Stay Petition for Writ of Certiorari Proctor & Gamble SCOTUS Split of Authority

Not Sweet Enough: Ninth Circuit Tosses Claims Over Fresh Sugar Lip Balm Labeling and Packaging

Plaintiff Angela Eber filed a putative class action against Fresh, Inc. alleging that the label, design and packaging of its Sugar lip balms deceived consumers about the amount of available product. In a published panel...more

4/14/2016 - Product Labels Product Packaging Putative Class Actions Reasonable Person Test Safe Harbors Unfair or Deceptive Trade Practices

California District Court Unplugs Duracell False Advertising Suit

Recently, Judge Lucy H. Koh of the Northern District of California dismissed a putative class action claiming that Procter & Gamble and Gillette deceptively advertised Duracell Coppertop AA and AAA batteries. Defendants...more

4/4/2016 - Dismissals Duty to Disclose Express Warranty False Advertising Labeling Proctor & Gamble Puffery Putative Class Actions

New York Court Rules Rule 67 Deposit Cannot be Used to Pick Off Named Plaintiffs in Putative Diet Pill Class

Recently, a New York court held that a putative class action defendant’s depositing of funds sufficient to cover the full amount of a plaintiff’s individual claims does not moot the plaintiff’s case and therefore cannot be...more

3/10/2016 - Campbell Ewald v Gomez Class Certification Class Representatives Dietary Supplements False Advertising Mootness Putative Class Actions SCOTUS Settlement Offer

Supreme Court Denies Review of Ninth Circuit Decision Finding no Trademark Infringement for Amazon Search Results

On February 29, 2016, the Supreme Court declined to review a Ninth Circuit decision holding that there was no likelihood of confusion, and therefore no trademark infringement, where Amazon.com responded to consumer searches...more

3/3/2016 - Amazon Corporate Counsel Lanham Act Likelihood of Confusion Petition For Rehearing Petition for Writ of Certiorari Popular SCOTUS Trademark Infringement Trademark Litigation

Companies to Pay Heavy Fine for Weight Loss Products

When it comes to certain diet pills, perhaps the only things getting slimmer are the wallets of the companies that sell them. Those companies, including Sale Slash LLC, agreed to pay over $43 million in a settlement last...more

3/1/2016 - Advertising Substantiation CAN-SPAM Act Equitable Relief FTC FTCA Hackers Misrepresentation Settlement Weight-Loss Products

Want to Settle Before Class Certification? The Supreme Court Raises the Stakes

Recently, the U.S. Supreme Court held in Campbell-Ewald Co. v. Gomez, a putative class action case, that an unaccepted pre-certification settlement offer to the named plaintiff does not moot either the plaintiff’s claim or...more

2/11/2016 - Campbell Ewald v Gomez Class Action Class Certification Class Representatives Mootness Rule 68 SCOTUS Settlement Offer TCPA

True Green for True Blue: Blue Buffalo Promises $32 Million Settlement

Pet-food maker Blue Buffalo will pay $32 million to settle 13 consumer class action suits, the company announced last month. The 13 class actions—which pet owners originally filed in California, Connecticut, Florida,...more

1/29/2016 - Animal Food Class Action Fairness Hearings False Advertising Nestle Product Labels Purina Settlement Agreements

California Supreme Court Holds Organic Labeling Suit a Natural Fit in State Court

In December, the California Supreme Court held that a challenge to a farm’s labeling of its herbs as “organic” under state false advertising laws is not preempted by the federal Organic Foods Production Act of 1990 (“Organic...more

1/20/2016 - CA Supreme Court Class Action False Advertising Food Labeling Organic Preemption Private Right of Action USDA

When it Comes to Arbitration Agreement Class Action Waivers, Concepcion is Still the Law, Even in California.

In 2014, we blogged about a California state appellate court decision invalidating the arbitration clause in DIRECTV’s consumer contracts. We found that California decision to be noteworthy because it seemed to fly in the...more

1/4/2016 - Arbitration Agreements AT&T Mobility v Concepcion Class Action Arbitration Waivers DirecTV DirecTV v Imburgia Federal Arbitration Act Preemption SCOTUS Unconscionable Contracts

Cricket Wireless’s Bid to Enforce Arbitration Clause Against Customers Met with Mediocre Reception

On November 3, 2015, Judge Alsup of the Northern District of California denied Cricket Wireless’s motion to enforce an arbitration clause against customers who say they never saw or agreed to the clause. Plaintiffs...more

12/15/2015 - Corporate Counsel False Advertising Mandatory Arbitration Clauses Putative Class Actions Summary Jury Trials Terms and Conditions

Can You Hear Me Now? NAD Finds Scientific Evidence Insufficient to Support Dietary Supplement’s Claims of Ear Discomfort Relief

Clarion Brands, LLC recently received an earful from the National Advertising Division (“NAD”) about its marketing of the dietary supplement Lipo-Flavonoid Plus. Clarion had been marketing Lipo-Flavonoid Plus with advertising...more

12/4/2015 - Advertising Substantiation Dietary Supplements NAD NARB Testimonial Statements

With Circuits Mis-Aligned, Sixth Circuit Stays Class Certification Pending Appeal

As our readers may remember, Procter & Gamble (“P&G”) stomached a loss last August when the Sixth Circuit affirmed certification of a false advertising class action regarding P&G’s Align probiotic supplement. But on October...more

11/17/2015 - Class Certification Commonality False Advertising Petition for Writ of Certiorari Proctor & Gamble SCOTUS Stays

Out of Align-ment: Sixth Circuit Affirms Class Certification in Probiotics Case

A recent Sixth Circuit decision that affirmed certification of a multi-state consumer class action asserting false advertising claims concerning Align – a Proctor & Gamble probiotic product promising digestive health benefits...more

9/11/2015 - Class Action Class Certification Clinical Trials Commonality Dukes v Wal-Mart False Advertising Proctor & Gamble SCOTUS

Makers’ Mark Two: Bourbon Distiller Slips another “Handmade” False Advertising Suit

In another blow to consumers that demand absolute rustic authenticity from their top-shelf bourbon purchases, a court in the Southern District of California has dismissed a false advertising class action against Maker’s Mark...more

9/2/2015 - Class Action Dismissal With Prejudice False Advertising Product Labels Putative Class Actions Safe Harbors TTB Unfair Competition

Uber Ordered to Buckle Up for Litigation: Taxicab Plaintiffs Ride out (in part) Uber’s Motion to Dismiss False Advertising Claims

A group of California taxicab companies sued Uber in federal court in San Francisco for falsely advertising the safety of Uber rides and for disparaging the safety of taxi rides. Uber moved to dismiss plaintiffs’ Lanham Act...more

8/21/2015 - Commercial Speech False Advertising Lanham Act Puffery Restitution Standing Taxi Cabs Uber Unfair Competition

Sun-Blocked: California Court Dismisses Sunscreen Labeling Case

It’s summertime, and for many of us that means buying and applying sunscreen. Lots of it. Indeed, when selecting sunscreen rated at, say, SPF 30, we rely on national standards promulgated by the FDA. It thus comes as no...more

8/12/2015 - False Advertising FDA Labeling Neutrogena Preemption Product Labels Product Packaging Safe Harbors Unfair Competition

Procera AVH Marketers Can Forget About Claiming to Reverse Memory Loss

It turns out that there is not a magic pill capable of reversing the effects of aging on the human brain, including memory loss, or at least not one we can remember right now. The FTC recently reminded the marketers of...more

7/31/2015 - Advertising Civil Monetary Penalty Dietary Supplements False Advertising FTC Permanent Injunctions Settlement

Clarification for Class Action Settlements May Be on the Line As Supreme Court Grants Cert in TCPA Case

Last year, in Gomez v. Campbell-Ewald Co., No. 13-55486, 2014 WL 4654478 (9th Cir. Sept. 19, 2014), the U.S. Court of Appeals for the Ninth Circuit held that offers of complete relief made to individual plaintiffs under Fed....more

7/19/2015 - Certiorari Class Action False Advertising Mootness Offer of Judgment Popular Rule 68 SCOTUS Settlement Settlement Offer TCPA

Beer-Maker Puts an End to Brewhaha: Anheuser Busch Agrees to Settle Second of Two Class Action Lawsuits over Beer Origin...

Anheuser Busch recently agreed to settle a consumer class action over Beck’s Beer labeling that we previously reported on with regard to the uptick in consumer class actions proceeding past the pleading stage in the Southern...more

7/10/2015 - Anheuser-Busch Attorney's Fees Class Action False Advertising Injunctions Labeling Motion to Dismiss Puffery Settlement

Procter & Gamble Must Say Goodbye to Proposed Amended Claim against Hello, while Hello Says Goodbye to Lawsuit

A lawsuit between Procter & Gamble (“P&G”) and Hello Products (“Hello”) – a toothpaste start up that promotes its products as “naturally friendly” – settled last week with the entry of a stipulated injunction, but Hello might...more

6/18/2015 - Discovery False Advertising Lanham Act Leave to Amend Preliminary Injunctions Proctor & Gamble Settlement Unfair or Deceptive Trade Practices

Appealing a Trademark Registration Refusal? Win or Lose, You May Have to Pay the USPTO’s Legal Fees

The federal Trademark Act (the Lanham Act) instructs that if an unsuccessful trademark applicant appeals a refusal to register in federal district court, the applicant must name the Director of the U.S. Patent & Trademark...more

6/12/2015 - American Rule Attorney's Fees De Novo Standard of Review Lanham Act Legal Fees Trademark Act Trademark Registration Trademark Trial and Appeal Board Trademarks USPTO Venue

Catch of the Day: Tuna Fish Brand StarKist Swims into a Sea of Trouble After Agreeing to Settle Claims Against It

StarKist Co. recently agreed in principle to a $12 million settlement with a putative class of plaintiffs concerning alleged under-filling of tuna fish cans. But agreeing on the dollar figure seems to have been the easy part;...more

6/5/2015 - Class Action CLRA False Advertising Settlement Unfair Competition

Maker’s Marketing: Bourbon Distiller Racks up “Handmade” False Advertising Victory

In a decision that will interest distillers and hipster connoisseurs of artisanal beverages alike, a district court in the Northern District of Florida has decided that Maker’s Mark can describe its whiskey as “handmade”...more

5/21/2015 - Advertising Class Action False Advertising Wine & Alcohol

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