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Federal court dismisses false advertising claims, ruling that studies cited in complaint did not plausibly support allegation that...

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

Fine print prevails: Second Circuit affirms dismissal of deceptive business act claims against Stanley Black & Decker

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

Tenth Circuit affirms dismissal of false advertising class action predicated on puffery

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

Second Circuit false advertising class actions predicated on puffery are doomed to fail

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

False advertising class actions – absent evidence that reasonable consumers were likely to be misled, Seventh Circuit affirms...

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

Ninth Circuit divided panel revives krab mix false advertising class action

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

Consumer class actions – Ninth Circuit holds that federal and not state law controls the award of equitable restitution under...

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

False advertising class actions – “complete multivitamin” misrepresentation enough to state claims under New Jersey and Florida...

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

The Second Circuit puts another nail in the diet soda class action coffin

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

Second Circuit False labeling class actions viewed in context is the theory of deception

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

Contradictory testimony dooms class certification of Krazy Glue “slack-fill” class action (C.D. Cal.)

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

Cutting a class defendant some slack: the S.D.N.Y. rejects a “least sophisticated consumer” test in dismissing “slack-fill” class...

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

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