Misleading Statements

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Chobani Yogurt Ad Campaign Enjoined – A Healthy Result for Yoplait and Dannon

When I opened up a newspaper a few weeks ago and saw an ad by Chobani for its Simply 100 Greek Yogurt, my first thought was, “that’s going to provoke a false advertising dispute.” Here’s what Chobani said about its competitor...more

U.S. Government Reminds Colleges and Universities to be Prepared to Defend Advertised Statistics

The Federal Trade Commission (“FTC”) and U.S. Department of Education (“ED”) recently reminded all colleges and universities to review their online and print materials not only for the accuracy of any employment statistics...more

FTC Enforcement in Schein: Misleading Statements about Encryption and Cybersecurity

On January 5, 2015, the Federal Trade Commission (FTC) entered into a consent order with dental software manufacturer Henry Schein Practice Solutions, Inc. ("Schein") in connection with allegations that Schein had made...more

Integrating UDAAP Concerns into Compliance Management Systems

DWT’s Payments Team participated in the ABA Consumer Financial Services Committee’s Winter Meeting in Park City, Utah last week. Andrew Owens delivered a presentation on advertising and issuing credit online during the...more

"Insights Conversations: Securities Litigation"

From the impacts of U.S. Supreme Court Omnicare and Halliburton cases to the uptick in Securities Act class actions, litigation partners Scott Musoff and Susan Saltzstein discuss the latest securities litigation developments....more

First Circuit Overturns SEC Ruling in Flannery v. SEC

The First Circuit’s decision underscores the limits of court deference to Commission decisions, gives teeth to the “substantial evidence” standard of review, and provides a valuable roadmap for evaluating and defending...more

Trader Joe’s Wins Dismissal of Soymilk Products Mislabeling Claims

On December 2, 2015, Judge Vince Chhabria of the Northern District of California dismissed with prejudice claims that grocery retailer Trader Joe’s violated California’s Unfair Competition Law (UCL) by using the term...more

Update on Proposed Amendments to the Borrower Defense to Repayment Rule

The U.S. Department of Education (“USDE”) is continuing to move forward with issuing new regulations regarding the “Borrower Defense to Repayment Rule” (“BDRR”). The BDRR concerns the ability of a Direct Loan borrower to seek...more

JCPenney Advertising Class Settlement Calls for $50 Million Payment for a California-Only Class

Retailers have been under siege, particularly in California, by putative class actions involving allegations of “false or misleading” advertising practices. Generally, the crux of the allegations is that retailers are...more

Defrauded Defendant Defenseless Against Investors: Ninth Circuit Imputes Scienter of Embezzling CEO to Corporation for 10b-5...

Malfeasance by a corporate insider against his company has the potential to leave a gaping wound. Facing a securities lawsuit due to that malfeasance is like salt in that wound. Corporations targeted with such lawsuits have...more

GNC lawsuit reflects FDA’s crackdown on dietary supplement industry

The Oregon Attorney General’s Office hit General Nutrition Centers (GNC) with a lawsuit last week alleging that the company knowingly sold supplements that contained FDA-banned ingredients. The action should serve as a...more

Securities Class Action Defense Counsel Selection: An Interview Process is Essential

When a public company purchases a significant good or service, it typically seeks competitive proposals. From coffee machines to architects, companies invite multiple vendors to bid, evaluate their proposals, and choose one...more

California Court Gets It Wrong On HRT Class Action

We understand that not everyone shares our view of class actions, but we hold certain truths to be self-evident: The government, including its courts, cannot order someone to give money to someone else without due process of...more

Corporate Investigations & White Collar Defense - October 2015

"Wherefore Art Thou Due Process?" Part III - Why it matters: It is time for another installment in our continuing "Wherefore Art Thou Due Process?" coverage into the ongoing constitutional challenges to the SEC's...more

A Yarn Spun, But Advertising Not Tailored to a Lanham Act Claim

In a recent application of the Supreme Court’s 2014 Lexmark decision on standing, the Court of Appeals for the Third Circuit held last month that a yarn retailer who alleged it was misled by its supplier into purchasing...more

Another Round of Favorable SEC Settlements, But Only for Underwriters that Self-Reported

The SEC has rolled out its second wave of enforcement actions against 22 municipal underwriting firms for alleged securities violations in municipal bond offerings in connection with its Municipalities Continuing Disclosure...more

SEC Settles with Swiss Bank Over Misconduct of Issuing Complex Structured Notes

On October 13, the SEC announced a $19.5 million settlement with a Swiss bank for allegedly misleading U.S. investors by making false and misleading statements and omissions in connection with the offering of complex retail...more

Structured Thoughts: News for the financial services community, Volume 6, Issue 6

U.S. Structured Warrant Programs: Introduction - U.S. and non-U.S. banks have offered structured warrants in the U.S. to address the needs of both institutional and high-net worth investors. This article will...more

Guest Post - First Contact - 3D Printing Meets the Learned Intermediary Rule

Here is a guest post on an interesting case. It's the first decision that we're aware of in which a 3D printed medical device (or any 3D printed product) has been the subject of litigation that involves product liability...more

Plan Sponsor Forced to Restore Plan Benefits Due to Intentionally Misleading Communications to Employees

On September 29, 2015, the U.S. District Court for the Southern District of New York issued a decision that emphasizes the importance of accurate communications to employees regarding changes in qualified retirement plan...more

One Size Does Not Fit All: Written Disclosure Policies in a Time of Increased SEC Enforcement

The U.S. Securities and Exchange Commission (SEC) continues to increase its enforcement efforts in the municipal bond market by focusing on the sufficiency and timeliness of disclosure in initial municipal securities...more

Southern District of New York Finds Amarin Pharma, Inc.’s Off-Label Promotion Is Protected Speech; Company Cannot Be Prosecuted...

Pharmaceutical industry and constitutional buffs have been closely watching Amarin Pharma Inc. v. U.S. Food and Drug Administration. The case presented the (not wholly novel) question whether the First Amendment protects...more

Securities Claims Based on Item 303 of Regulation S-K: It Just Doesn’t Matter

In January 2015, the Second Circuit held in Stratte-McClure v. Morgan Stanley, 776 F.3d 94 (2nd Cir. 2015), that Item 303 of Regulation S-K imposes a duty to disclose for purposes of Section 10(b), meaning that the omission...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

Financial Services Weekly News - September 2015 #3

Regulatory Developments: CFTC Grants Temporary Registration as SEF to LedgerX Bitcoin Options Exchange and Clearing House - On Sept. 10 the CFTC announced that it had issued an Order of Temporary Registration as a...more

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