False Advertising

News & Analysis as of

The Ninth Circuit Declares That Individualized Damages Issues Alone Never, Ever Preclude Certification of a Rule 23(b)(3) Class

In Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752, 2015 U.S. App. LEXIS 16723 (9th Cir. Sept. 21, 2015), a Ninth Circuit panel held that individualized damages (or restitution) calculations cannot alone defeat Rule...more

Advertising Law - September 2015 #3

State AGs Settle Negative Option Marketing Case for $1M: Negative option marketing cost one company $1 million in a recent deal with the Attorneys General of New York, Pennsylvania and Washington. According to the...more

Ruling Allows Gerber False Advertising Suit to Crawl Onward

For plaintiffs concerned that the Fourth Circuit Court of Appeals’ June 19, 2015 decision in Brown v. GNC Corp. signaled the muscling in of a stricter new pleading standard for false advertising class actions nationwide, a...more

"The Future of Government Regulation, Enforcement of Off-Label Promotion"

Three years ago, in United States v. Caronia, the U.S. Court of Appeals for the Second Circuit held that the Federal Food, Drug and Cosmetic Act (FDCA) neither prohibits nor criminalizes truthful, nonmisleading speech that...more

Retailer Pricing Strategies: Back to School under the Competition Act

How much did you really save in Back to School sales? Can consumers trust a retailer’s claims about its “regular” prices and its “sale” prices? Canada’s competition law enforcer is showing renewed interest in retailers’...more

Advertising Law - September 2015 #2

FTC Reviews Kids’ Apps for Privacy Progress - Three years after conducting a survey on apps directed to children, the Federal Trade Commission’s Office of Technology Research and Investigation decided to check back with...more


In a world where people go online to tell friends and strangers alike how they feel about everything from their newest mobile device to a restaurant down the street, it’s tough to know why opinions are shared in social media....more

The Best Allegation in a Lawsuit

And the award for Best Allegation in a Lawsuit goes to … Overton v. Anheuser-Busch Company....more

Guest Post - The Sweet Smell of Preemption Overcomes Plaintiffs’ Stinky Consumer Fraud Claims

The ingenuity of our friends in the plaintiffs’ bar is never-ending and always fascinating, like Cyrano de Bergerac’s prodigious proboscis. For example, this post is about a case brought by some resourceful lawyers who did ...more

Fembots and False Advertising

Fembots have plagued humanity for many years. In the 1970s, fembots attempted to seize control of a weather device before they were defeated by the Bionic Woman. And in the 1990s, fembots worked with Dr. Evil until Austin...more

SEC Sanctions Investment Adviser For Materially False Advertisements

The SEC recently instituted proceedings against a registered investment adviser and its founder, CEO and majority shareholder for allegedly making material misstatements and omissions regarding the amount of assets...more

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

This Week In Securities Litigation

In a burst of post-Labor Day energy, the SEC filed a number of significant actions. Those include a series of actions arising out of the audit failure by BDO; actions centered on a financial fraud at an on-line lender; cases...more

What Does It Take to Trademark Your Name? - Tartell, M.D. v. South Florida Sinus and Allergy Center, Inc., et al.

Addressing the question of when a professional name can be protected as a trademark, the U.S. Court of Appeals for the Eleventh Circuit found that the plaintiff doctor’s name had not acquired that distinction. Tartell, M.D....more

Tenth Circuit Rules that False Advertising Plaintiffs Must Alleged Evidence of Implied Falsity and Quantify Damages at Pleading...

In a Lanham Act false advertising action by cosmetic surgeons against plastic surgeons – yes, those are two different things – the Tenth Circuit Court of Appeals, in an August 31 opinion, affirmed dismissal of Lanham Act...more

Proof of Confusion Essential for Trademark Injunction - Arborjet, Inc. v. Rainbow Treecare Scientific Advancements, Inc.

Addressing the likelihood of success requirement for injunctive relief, the U.S. Court of Appeals for the First Circuit vacated an order requiring trademark attribution where the district court had not found a likelihood of...more

California Federal Court Is Unpersuaded By A Recent Fourth Circuit False Advertising Decision In Reconsidering Its Ruling On A...

The Honorable John A. Kronstadt for United States Federal District for the Central District of California, denied a Defendant’s motion to reconsider his previous ruling on a motion to dismiss based upon a subsequent Fourth...more

The World in US Courts - Orrick's Quarterly Review of Decisions Applying US Law to Global Business and Cross-Border Activities:...

We are pleased to announce the Summer 2015 issue of The World in US Courts: Orrick's Quarterly Review of Decisions Applying US Law To Global Business and Cross-Border Activities. This issue discusses 13 new decisions that...more

Machinima Settles FTC Enforcement Action Over Xbox One Endorsements

On September 2, 2015, the FTC announced that it had settled its complaint against a California-based online entertainment network – Machinima, Inc. – for engaging in an allegedly deceptive advertising campaign to promote the...more

New Jersey Federal Baked Goods Fraud Class Actions Are Toast

On this date in 1901 (September 2nd), Teddy Roosevelt for the first time uttered in public the immortal phrase, "Speak softly and carry a big stick". It is hard to find people who do not admire that statement. It is harder...more

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

Competitors Push Back With False Advertising Laws

In a time when the “disruptive” label is far from viewed as pejorative and, in fact, deemed essential for many new business models, existing market participants looking to fight back are turning to powerful federal and state...more

Ashley Madison Fallout: Class Actions, Pentagon investigation and easily searchable data

We previously reported that hackers The Impact Team had posted legitimate detailed information about 36 million adultery website Ashley Madison users. In the wake of the shocking posting of the data last week, two class...more

Summary Judgment Ruling Not a Pretty Picture for Massachusetts Copyright Plaintiff

A recent decision from the District of Massachusetts demonstrates the difficulties that can arise when attempting to protect copyrighted works displayed on the internet. The July 29, 2015 order issued by the Honorable Patti...more

Consumer Financial Protection Bureau Files Suit Against Company and Individuals Who Allegedly Ran Pension Loan Scam

On August 20, 2015, the Consumer Financial Protection Bureau (“CFPB”) and the New York superintendent of financial services jointly sued Pension Funding, LLC; Pension Income, LLC; and individuals Steven Covey, Edwin Lichtig,...more

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