Lawrence Weinstein

Lawrence Weinstein

Proskauer Rose LLP

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Second Circuit Affirms Preliminary Injunction of "Identical" Gray Goods

Earlier this month in Abbott Laboratories v. Adelphia Supply USA et al, the Second Circuit affirmed a district court's grant of a preliminary injunction halting the alleged sale of gray-good diabetes test strips made by...more

11/28/2016 - Abbott Laboratories Corporate Counsel Healthcare Lanham Act Medical Supplies Pharmaceutical Industry Preliminary Injunctions Trademark Infringement Trademark Litigation Trademarks

IntenseX False Advertising Claims Lack Power and Performance

Last month, in Kanfer v. Pharmacare US, Inc., U.S. District Judge Marilyn Huff of the Southern District of California dismissed on what were essentially puffery grounds a consumer suit styled as a class action alleging that...more

11/23/2016 - Class Action False Advertising Labeling Motion to Dismiss Nutritional Supplements Product Labels

Standing to Assert Injunctive Relief is Not in the Tea Leaves, Court Says

In Lanovaz v. Twinings North America, Inc., Judge Whyte of the Northern District of California recently decided that the plaintiff lacked standing to pursue injunctive relief, and granted summary judgment for defendant...more

10/28/2016 - Article III Class Action Class Certification False Advertising Food Labeling FRCP Rule 23(b)(2) Injunctive Relief Labeling Misleading Impressions Standing Summary Judgment

Accurate Net Weight Disclosures May Defeat Slack-Fill Claims in California

Last April, we reported on Ebner v. Fresh, Inc., in which a Ninth Circuit panel held that the plaintiff failed to state a claim that Sugar lip balm packaging was misleading because it contained non-functional “slack-fill.”...more

10/24/2016 - Class Action Corporate Counsel False Advertising Labeling Product Packaging Putative Class Actions Slack-Fill Suits Unfair or Deceptive Trade Practices

De-certifiably Natural – Ninth Circuit Finds “All Natural” Label May be Misleading While Upholding Class Decertification

The Ninth Circuit Court of Appeals recently reversed in part and affirmed in part a Northern District of California ruling concerning the “All Natural Fruit” labeling on Dole’s packaged fruit products. Brazil v. Dole Packaged...more

10/18/2016 - All Natural Class Action Class Certification Dole Food False Advertising FDA Food Labeling Food Manufacturers Food Marketing Misleading Impressions Natural Products

Federal Contractor Minimum Wage Increase Announced – Changes Effective January 1, 2017

Monday, the Department of Labor announced an increase in the minimum wage that certain federal contractors must pay to employees. This comes as part of a planned incremental increase in the federal contractor minimum wage...more

9/21/2016 - Davis-Bacon Act DOL Executive Orders Federal Contractors FLSA Service Contract Act Tipped Employees Wage and Hour

A Wrinkle in Time: Anti-Aging Advertising Claims Unsubstantiated by Testing Methods

The National Advertising Division (NAD)’s annual conference is taking place later this month, so we are taking the opportunity to highlight some recent NAD decisions of interest.  This post addresses Intraceuticals LLC...more

9/7/2016 - Advertising False Advertising Marketing Personal Care Products

Don’t Pick Me Off: Are Pre-Certification Claims Mooted By Deposited Full Settlement Offers?

On January 20, 2016, the Supreme Court held in Campbell-Ewald v. Gomez, 136 S. Ct. 663, 672, 193 L. Ed. 2d 571 (2016) that an unaccepted pre-certification settlement offer of complete relief in a putative class action, made...more

8/22/2016 - Advertising Campbell Ewald v Gomez Class Action Class Certification Class Representatives Mootness Rule 68 Settlement Offer

False Ad Claims Fail to Crystalize as Court Dismisses Amended Complaint against Sharp Electronics with Prejudice

Dismissals of class action complaints with prejudice are not as common as dismissals with leave to replead, but a recent decision in the District of New Jersey illustrates the circumstances under which a dismissal with...more

7/26/2016 - Dismissal With Prejudice False Advertising Misleading Statements Misrepresentation Pleading Standards Product Packaging Putative Class Actions Rule 9(b)

Sugar Rush: FDA Rejects Use of “Evaporated Cane Juice” to Describe Sweeteners

For years, food companies have been using the term “evaporated cane juice” in the ingredients list on food products. This has resulted in a number of lawsuits by consumers claiming that the term misled them into thinking...more

6/28/2016 - FDA Food Labeling Food Manufacturers Food Marketing Misleading Statements New Guidance

Parks’ Allegations Against “Finest” Franks Not In the “Ball Park” of False Advertising Claims

On May 10, 2016, Judge Joseph F. Leeson, Jr. of the Eastern District of Pennsylvania granted summary judgment on false advertising and trademark claims in favor of defendant Tyson Foods, Inc. and a subsidiary, the makers of...more

6/2/2016 - False Advertising False Association Lanham Act Summary Judgment Surveys Trademark Infringement Tyson Foods

Supreme Court: Class Action Plaintiffs Must Show ‘Concrete’ Harm to Satisfy Article III

In a 6-2 decision, the Supreme Court, in an opinion authored by Justice Alito, held that the Ninth Circuit’s Article III standing analysis in Robins v. Spokeo was incomplete because it focused solely on whether the plaintiff...more

5/20/2016 - Article III Class Action False Advertising FCRA Injury-in-Fact SCOTUS Spokeo v Robins Standing

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 FTC Act 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

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