In recent years, sellers of consumer products have faced countless class action lawsuits alleging that their products are misleadingly advertised. Many motions to dismiss often turn on whether the product’s advertising is misleading to a reasonable consumer. But in Valiente v. Publix Super Markets, Inc., 2023 U.S. Dist. LEXIS 91089 (S.D. Fla. May 24, 2023), the court took a different tack, dismissing a false advertising claim on Article III standing grounds because the defendant’s “money-back guarantee” effectively mooted the plaintiff’s claim for monetary damages.
Advertising & Marketing
Second Circuit Reiterates When Puffery Claims Can Be Dismissed at the Pleadings Stage
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).…
Court Finds “Naked Assertions” Cannot Sustain TCPA Claim
Last week, the Western District of Washington granted in part and denied in part a motion to dismiss a TCPA putative class action lawsuit against Assurance IQ and Boomsourcing after finding that plaintiffs failed to allege facts to support the elements of a TCPA claim. See Order Granting in Part and Denying in Part Motions to Dismiss, Rogers v. Assurance IQ, LLC, No. 2:21-cv-00823-TL (W.D. Wash. March 27, 2023).…
Continue Reading Court Finds “Naked Assertions” Cannot Sustain TCPA Claim
New York Federal Court Dismisses Two False Advertising Suits Based on Malic Acid
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
California Urges Ninth Circuit to Clamp Down on Dismissals for Insufficient Pleading Under “Reasonable Consumer” Test
The California Attorney General has joined the fray in Souter v. Edgewell, an otherwise little‑watched putative class action pending in the Ninth Circuit over allegedly misleading label claims about the efficacy and safety of the defendant’s hand wipes. The Attorney General is urging the Ninth Circuit to make it far more difficult for defendants…
Aspirational Statements of “Sustainability” Not Actionable Under D.C. Consumer Protection Statute
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.…
Court Rejects Plaintiffs’ Post-Trial Bid For $140 Million In Statutory Damages Under New York False Advertising Laws
After prevailing in a class action trial regarding allegedly false advertising, plaintiffs sought $91 million in statutory damages under New York’s General Business Law (GBL), plus $49 million in prejudgment interest. In an opinion that will likely serve as an important precedent for future GBL cases – and could influence how aggressively plaintiffs pursue them – a court in the Northern District of California rejected plaintiffs’ request, and instead awarded $8.3 million in statutory damages, plus interest. Montera v. Premier Nutrition Corp., 2022 WL 3348573 (N.D. Cal. Aug. 12, 2022). The plaintiffs’ requested award, the court held, was “so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable.”…
Consumer Survey Did Not Constitute Common Proof of Deception or Materiality
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
Plaintiffs Try to Hook Bumble Bee Tuna with Deceptive Marketing Claim
A recent lawsuit alleges that Bumble Bee Foods, one of the nation’s largest producers of canned tuna, does not use a “fair and safe supply chain,” as the company’s marketing claims.
The suit is the latest in a surge of cases filed under D.C.’s unique consumer-protection statute. The plaintiff, a D.C.-based nonprofit focused on labor rights, alleges that Bumble Bee’s primary tuna supplier (and now parent company) relies on fishing methods that are prone to labor abuses.
Separate from the merits, the suit raises thorny issues about when claims under D.C.’s Consumer Protection Procedures Act (“CPPA”) can be removed to federal court.…
Continue Reading Plaintiffs Try to Hook Bumble Bee Tuna with Deceptive Marketing Claim
Financial Institution Reaches Settlement in Call Recording Class Action
A financial institution and its vendor recently reached a $50 million settlement in a class action lawsuit for violating the call recording provision of the California Invasion of Privacy Act (“CIPA”). The settlement is nearly three times the size of the largest previous settlement under CIPA, which provides for damages of $5,000 per violation.
The…