Takeaway: It seems that more and more false advertising cases are filed these days alleging that consumer products are contaminated with some sort of harmful substance or chemical. At their core, these types of cases depend...more
Takeaway: Is a label clearly false or only ambiguously false? Where a label is ambiguous – and therefore subject to an interpretation that would render it deceptive – the ambiguity can be clarified by fine print. The fine...more
In a recent post, we reported on the Second Circuit’s affirmance of a district court order dismissing a false advertising class action based on alleged misrepresentations that amounted to nothing more than puffery. See...more
Takeaway: Although a district court deciding a Rule 12 motion to dismiss must draw every inference in favor of a plaintiff, courts know puffery when they see it. In George v. Starbucks Corp., --- Fed. Appx. ----, No....more
Takeaway: To survive summary judgment, a false-advertising plaintiff must offer evidence that the challenged representations are likely to mislead a reasonable consumer. In Weaver v. Champion Petfoods USA Inc., --- F.4th...more
Takeaway: Context matters in false advertising class actions. Factors such as how an allegedly false representation is displayed, where it is displayed, and what else is disclosed on the label or advertisement all can...more
Takeaway: Federal courts sitting in diversity are supposed to apply state law. There is a critical distinction, however, between substantive rights created by state law, on the one hand, and remedies (especially equitable...more
Takeaway: Where a plaintiff alleges that product labeling does not comply with pronouncements by the Food & Drug Administration (FDA), it can be difficult for a class defendant to obtain the dismissal of false advertising...more
Takeaway: In prior posts, we have reported on the dismissals of putative class actions asserting that the “diet” in “diet soda” is false or misleading. See N.D. Cal. sounds the death knell on “diet” soda class actions...more
Takeaway: In two recent cases, the Second Circuit explored the plausibility of theories of deception in false labeling/consumer fraud cases. In one case, the appellate court ruled that a plausibly false labeling statement...more
Takeaway: Creative legal theories are easier to allege than prove. And a putative class representative does not always make the best deponent, especially when it comes to substantiating the key allegations in an unfair and...more
Takeaway: There has been a proliferation of “slack-fill” class action litigation. These cases are premised on the notion that a large product container deceives a reasonable consumer, under the theory a reasonable consumer...more