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Ashley Simonsen

Ashley Simonsen is a litigator whose practice focuses on defending complex class actions in state and federal courts across the country, with substantive experience in the three hotbeds of class action litigation: New York, San Francisco, and Los Angeles.

Ashley represents clients in the technology, consumer brands, financial services, and sports industries through all stages of litigation, including trial, with a strong track record of success on early dispositive motions. Her practice encompasses advertising, antitrust, product defect, and consumer protection matters. Ashley regularly advises companies on arbitration clauses in consumer agreements and related issues, including mass arbitration risks and issues arising under McGill v. Citibank, N.A. And she is one of the nation’s leading experts on “true lender” issues and the related “valid when made” doctrine.

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A bank partnership that has recently been the target of a series of “true lender” attacks has defeated a California regulator’s motion for a preliminary injunction.  The regulator sought the inunction as part of a lawsuit that seeks to hold the fintech firm Opportunity Financial LLC (“OppFi”) liable for violations of California’s usury laws.  The court’s decision is a significant victory for companies that follow the bank partnership lending model to provide consumer loans.…

Continue Reading Bank Partnership Defeats Motion for Preliminary Injunction in “True Lender” Suit

A pair of malic acid decisions recently issued by Judge Coleman in the Northern District Court of Illinois reaffirmed that the statements “natural flavors with other natural flavors” and “no artificial flavors” receive different treatment under state false advertising laws, at least in that district.…

Continue Reading Illinois Federal Court Dismisses One False Advertising Suit Based on Malic Acid, While Sustaining Another

In a decision that will likely have ramifications for lenders and borrowers in the state, the Michigan Supreme Court recently issued a decision clarifying that lenders cannot rely on a “usury savings clause” to circumvent Michigan’s usury statute.  But it also held that a lender’s effort to enforce a usurious loan, by itself, is not enough to trigger criminal liability.…

Continue Reading Michigan Supreme Court Refuses to Enforce “Usury Savings Clause”

A federal district court recently dismissed with prejudice a putative class action against the cryptocurrency exchange Coinbase, where the plaintiffs sought to hold the exchange liable for the sale of unregistered securities on behalf a nationwide class.  The court held that Coinbase neither directly sold the accused tokens to plaintiffs nor actively solicited their sale, and thus plaintiffs’ federal claims must be dismissed.  This decision has important implications for digital asset exchanges, which have faced a significant increase in class actions alleging the exchanges are themselves liable for the sale of unregistered securities.…

Continue Reading Court Dismisses Class Action Seeking to Hold Cryptocurrency Exchange Coinbase Liable for Sale of Unregistered Securities

A court in the Northern District of Illinois and a court in the Middle District of Florida recently arrived at opposite conclusions in two very similar putative class actions, both of which alleged that the claim “natural flavor with other natural flavors” on drink labels was misleading because synthetic malic acid was present in the product.…

Continue Reading Two Federal Courts Arrive at Opposite Conclusions in Suits Claiming “Natural Flavor with Other Natural Flavors” Is Misleading

Dark chocolate manufacturers have recently been hit with a wave of putative class action complaints in New York and California federal courts, alleging that the confectioners breached an implied warranty of merchantability and engaged in misleading advertising by failing to disclose the levels of lead and cadmium in their dark chocolate products.  According to the complaints filed against The Hershey Company, Trader Joe’s, Mars, Inc., and most recently Godiva Chocolatier, Inc. and Lindt & Sprüngli, Inc., the plaintiffs allege that the products contain lead and cadmium in excess California’s Maximum Allowable Dose Level (“MADL”)—a “safe harbor” level established under California’s “Prop. 65” law, the Safe Drinking Water and Toxic Enforcement Act of 1986.

The class action mechanism and the claims of false and deceptive advertising are a more novel approach to lead-in-chocolate lawsuits, which have traditionally been litigated in California state court as a violation of Prop. 65.  That law requires manufacturers, distributors, suppliers, and retailers of a consumer product containing certain listed chemicals to provide consumers with a “clear and reasonable” warning if exposure to that listed chemical poses a significant risk of cancer, or reproductive or developmental harm.  Mars, Hershey, Lindt, and Trader Joe’s previously entered into a settlement in 2018 to resolve Prop. 65 claims against the chocolatiers brought by the organization As You Sow.

Continue Reading Leaving a Bitter Taste: Class Action Lawsuits Alleging Lead and Cadmium in Dark Chocolate

A court in the Northern District of California recently dismissed a complaint brought against several beverage companies, including Coca-Cola, on behalf of a putative class of consumers and the Sierra Club.  Swartz v. Coca-Cola Co., No. 21-cv-04643-JD, 2022 U.S. Dist. LEXIS 209641 (N.D. Cal. Nov. 18, 2022).  Asserting claims under California and common law, plaintiffs alleged that the “100% recyclable” representation on single-use plastic bottles supplied by defendants is false and misleading because not all plastic bottles discarded into recycling bins are processed into reusable material.  Plaintiffs’ complaint cited to studies showing that recycling facilities in the U.S. lack the capacity to process most of the plastic waste generated, and not all plastic processed turns into material for reuse.  Resolving defendants’ motion to dismiss, the court acknowledged that “the question of consumer deception may be a factual matter unsuitable for resolution in a motion to dismiss,” but concluded that plaintiffs here failed to meet “the initial burden of pleading factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged as informed by judicial experience and common sense.” …

Continue Reading “100% Recyclable” Labels Are Not False Just Because Not All Plastic Bottles Are Recycled

As plaintiffs continue to rely on the District of Columbia Consumer Protection Procedures Act (“CPPA”) to bring greenwashing suits, a recent D.C. Superior Court decision imposes limits on their ability to allege that a company’s general commitments to “sustainability” can constitute actionable misrepresentations.…

Continue Reading Aspirational Statements of “Sustainability” Not Actionable Under D.C. Consumer Protection Statute

In a recent decision, a federal judge granted summary judgment for the Securities and Exchange Commission (SEC) finding that the LBC cryptocurrency token qualifies as a security.  While the ruling is confined to this specific token, it represents a victory for the SEC’s assertions that many cryptocurrencies, including so called “utility tokens,” represent securities that need to be registered with the agency.  The Court also held that the makers of the LBC token, LBRY, Inc., had fair notice that the token was subject to the securities laws.  Considering the ongoing class actions and enforcement proceedings litigating this issue across several cases, companies operating in the cryptocurrency space, including cryptocurrency exchanges, should follow this development to assess any possible impact on their businesses.…

Continue Reading S.E.C. Wins Summary Judgment Determination That Cryptocurrency Token Qualifies as a Security

The District Court for the District of New Jersey recently dismissed a putative class action alleging that defendants sold baby foods with high levels of heavy metals, holding that plaintiffs failed to plead an injury sufficient to support standing.  In re Plum Baby Food Litigation, No. 1:21-cv-02417-NLH-SAK, 2022 WL 16552786 (D.N.J. Oct. 31, 2022).  This decision adds to the list of cases in the Third Circuit holding that merely alleging exposure to toxic substances in consumer products, without more, is insufficient to establish Article III standing.  See Covington’s prior blog post on the trend in the Third Circuit here.…

Continue Reading District of New Jersey Continues Third Circuit Trend of Finding Mere Exposure to Toxic Substances in Consumer Products Insufficient for Standing