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Cort Lannin

Cortlin Lannin is a litigator who defends clients in high-stakes antitrust and consumer matters. Described by Chambers USA as “smart, detail-oriented and thorough,” Cort has a depth of experience helping his clients successfully navigate the entire lifespan of these matters, from leading internal investigations to defending government investigations and class action litigation.

Cort is co-chair of the firm’s global Cartel Defense and Government Investigations Practice Group and represents companies and individuals facing criminal and civil antitrust investigations, including before the DOJ Antitrust Division and FTC. Cort is also an experienced class action litigator and has defended his clients in cases implicating the high-tech industry, alleged “no-poach” and wage-fixing agreements, price-fixing, and similar conduct. He has been recognized as a Top Antitrust Lawyer by the Daily Journal.

Cort has also defended many of the world’s largest consumer companies in class action litigation. This includes cases alleging false advertising, deceptive trade practices, and privacy violations under California, New York, and other states’ laws. He is experienced at heading off cases before any complaint is filed and successfully defeating complaints at the pleading stage. The Daily Journal has recognized Cort as achieving a “Top Verdict” and as one of California’s Top 100 lawyers, noting that “he has developed a track record of securing dismissals in consumer class action cases before discovery begins—a feat that remains uncommon in a practice area where courts typically allow plaintiffs broad latitude to develop their theories.”

Cort is also an editor of the firm’s Inside Class Action blog and regularly contributes analyses of new class action decisions and developments.

Cort maintains an active pro bono practice and is a co-chair of Covington’s CovPride Resource Group.

Watch: Cort provides insights on class action litigation, as part of our Navigating Class Actions video series.

 

Contact:Read more about Cort LanninEmail

The Ninth Circuit recently affirmed summary judgment in favor of a manufacturer of glucosamine dietary supplements, holding that plaintiffs’ state law claims sought to impose requirements different from those under the federal Food, Drug, and Cosmetic Act (FDCA) and were thus preempted.  Hollins v. Walmart Inc., 67 F.4th 1011 (9th Cir. 2023).

Plaintiffs’ case targeted Walmart’s “Spring Valley Glucosamine Sulfate” product, later relabeled “Spring Valley Glucosamine Sulfate Potassium Chloride,” alleging that the product was mislabeled under California law because it did not actually contain glucosamine sulfate or glucosamine sulfate potassium chloride.  Rather, plaintiffs alleged that the product was comprised only of glucosamine hydrochloride, which purportedly does not offer the same clinical benefits.  The Ninth Circuit, in a split decision, affirmed the district court’s conclusion that plaintiffs’ claims under California law were preempted.

Continue Reading Federal Law Preempts Plaintiffs’ Challenges to the Label of a Glucosamine Dietary Supplement, Ninth Circuit Holds

The Second Circuit recently revived a plaintiff’s false advertising claims under New York’s General Business Law (“GBL”), concluding that whether the particular statements at issue were non-actionable puffery requires a fact-intensive inquiry not suitable for resolution on a motion to dismiss.  MacNaughton v. Young Living Essential Oils, LC, No. 22-0344, 2023 WL 3185045 (2d Cir. May 2, 2023).

Continue Reading Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage

False advertising lawsuits challenging lidocaine products that are represented to be “maximum strength” have now survived motions to dismiss in several instances.  Most recently, in Gonzalez Rodriguez v. Walmart, Inc., the plaintiffs brought a putative class action alleging that Walmart’s private label Equate-brand lidocaine patches and creams are falsely labeled as “maximum strength” or “max strength.”  The three challenged products are labeled as 4% lidocaine, and allegedly contain 360 milligrams of lidocaine.  The plaintiffs allege that certain prescription-strength patches deliver up to a 5% dose of lidocaine, and other over-the-counter patches deliver 560 milligrams of lidocaine—200 milligrams more than Walmart’s products.  The Southern District of New York concluded that plaintiffs had adequately pled claims under New York’s consumer protection statutes (GBL §§ 349 and 350), reasoning that “it is plausible that a reasonable consumer would understand ‘maximum strength’ to mean that the patch product contains the maximum amount of lidocaine available on the market for that type of product.”  Gonzalez Rodriguez v. Walmart, Inc., 2023 WL 2664134, at *4 (S.D.N.Y. Mar. 28, 2023).  Though Walmart argued that (1) prescription-strength patches are not proper comparators and (2) the plaintiffs used erroneous calculations regarding the amount of lidocaine in comparator products, the court rejected these arguments as “fact-intensive disputes [] not appropriate for resolution at the motion-to-dismiss stage.”

Continue Reading New York Court Permits “Maximum Strength” False Advertising Case to Proceed

Judge Karas in the Southern District of New York recently dismissed two lawsuits alleging that defendants’ beverage products contained synthetic malic acid that functioned as a flavoring agent, rendering the “100% natural flavors” and “natural flavor with other natural flavor” claims on the product labels false and/or misleading.  

Continue Reading New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid

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

Courts in the Northern District of California continue to turn away lawsuits alleging that food and beverage companies must adjust protein content claims to account for protein digestibility.  In Brown v. Nature’s Path Foods, Inc., 2022 WL 717816 (N.D. Cal. Mar. 10, 2022), Judge Gilliam observed that recent FDA…

Continue Reading More Courts in N.D. Cal. Uphold Industry-Standard Method for Calculating Protein Content Claims

The Southern District of California recently declined to certify a class based on plaintiffs’ failure to offer class wide proof of deception and materiality.  In Gross et al. v. Vilore Foods Company, Inc., plaintiffs alleged that Kern fruit juice products were deceptively labeled as “100% Natural” or made with whole fruit when the drinks in fact contained artificial ingredients.  Plaintiffs brought claims under various California laws, including the UCL, CLRA, and FAL.  To certify a class, plaintiffs were required to offer common proof both that the challenged representations were deceptive or misleading to a reasonable consumer; and that the challenged representations were material, meaning a reasonable person would attach importance to the representations that Kern’s fruit juice is “100% natural” or made with whole fruit.  The court held that plaintiffs satisfied neither burden.

First, as to deception, the only evidence Plaintiffs cited was their expert’s report.  Plaintiffs’ expert purported to assess the importance consumers placed on certain product attributes, and how claims such as “artificially flavored” affected their willingness to pay for a product.  Plaintiffs’ expert concluded that consumers were willing to pay approximately 29% more for a Kern product that did not disclose its use of artificial flavors, and approximately 30% less for a product disclosing that it contained artificial flavors.  The court found this evidence insufficient because consumers’ willingness to pay more or less for a product said nothing about whether the labels at issue would lead consumers to believe that the products did not contain artificial flavors, or contained only natural flavors.  As a result, the court held that Plaintiffs’ expert’s opinion could not constitute common proof of deception.

Continue Reading Consumer Survey Did Not Constitute Common Proof of Deception or Materiality

As discussed in our recent post, a court in the Northern District of California recently dismissed a complaint against Kashi involving its front-of-pack protein content claims.  See Nacarino v. Kashi Co., No. 21-CV-07036-VC, 2022 WL 390815, at *1 (N.D. Cal. Feb. 9, 2022).  That decision confirmed that food manufacturers may use the “nitrogen method” to calculate protein content claims made outside the Nutrition Facts Label and that plaintiffs’ theory that manufacturers must adjust such claims to reflect protein digestibility is preempted.  Judge Seeborg, also of the Northern District of California, followed in the footsteps of the Kashi court on February 15 by dismissing with prejudice a virtually identical case against KIND.  See Chong v. KIND LLC, No. 21-CV-04528-RS, 2022 WL 464149 (N.D. Cal. Feb. 15, 2022).

Continue Reading Second Court Upholds Industry-Standard Method for Calculating Front-of-Pack Protein Content Claims

Background

Many food companies now make quantitative protein content claims on the front of pack or elsewhere on their product labels outside the Nutrition Facts Label (NFL), such as the example from a recent case below:  

FDA regulations direct manufacturers to use the “nitrogen method”—which generally calculates protein content by multiplying the nitrogen content of the food by 6.25—when calculating the amount of protein reported inside the NFL.  Companies have generally used the same method for protein claims made elsewhere on the label, i.e., outside the NFL.

Continue Reading A Closer Look: Court Upholds Industry-Standard Method for Calculating Front-of-Pack Protein Content Claims