Advertising & Marketing

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.”

Continue Reading Court Rejects Plaintiffs’ Post-Trial Bid For $140 Million In Statutory Damages Under New York False Advertising Laws

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

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

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