Consumer Law

On Thursday March 13, 2025, New York Attorney General Letitia James announced proposed legislation to expand New York’s consumer protection law: the Fostering Affordability and Integrity through Reasonable (FAIR) Business Practices Act (“the Act”). The Act would update and expand New York’s current consumer protection law, Sections 349 and 350 of the New York General Business Law (“GBL”), to encompass a broader range of practices and claims.

The current versions of Sections 349 and 350 make unlawful certain deceptive business acts and practices and false advertising.  The Act would amend Section 349 to cover not only “deceptive” business acts and practices, but also conduct that may fall under vague definitions of “unfair” and “abusive” acts and practices.  The Act would further expand Section 349 by making it applicable “regardless of whether or not that act or practice is consumer-oriented [or] has a public impact or impact on consumers ….” The Act would also increase statutory damages to $1,000 and grant standing to organizations and third parties to the fullest extent otherwise permitted by law. However, the Act would also create affirmative defenses that limit plaintiffs to individuals and small entities, and excludes acts or practices that could be addressed by federal securities or intellectual property laws or that involve “high-value experienced commercial transaction[s]” directed exclusively to the parties to such transactions.Continue Reading New York Proposes New Consumer Protection Law

In Bates v. Abbott Laboratories, the Second Circuit affirmed dismissal of a consumer class action challenging the labeling of Ensure shakes and drinks as materially misleading.  2025 WL 65668, at *1–2 (2d Cir. Jan. 10, 2025). Continue Reading Second Circuit Affirms Dismissal of Consumer Class Action Challenging Nutrition Shakes and Drinks As Misleading

On December 17th, the Federal Trade Commission (“FTC”) announced its final rule intended to require the display of total price for tickets to live events and for short-term lodging.  

The rule will require businesses that offer, display, or advertise a price for live-events tickets and short-term lodging to clearly and conspicuously disclose a total price inclusive of all mandatory fees (excluding shipping and government fees).  And, before checkout, this total price must be displayed more prominently than other pricing information (such as itemized fees or surcharges).   

The rule also prohibits businesses from misrepresenting any fee or charge associated with tickets and lodging—including the fee’s nature, purpose, amount, or refundability.Continue Reading Hidden No More: FTC Finalizes Rule Restricting Hidden Fees for Live-Event Tickets and Short-Term Lodging

Despite a lead plaintiff with unique injuries, the Northern District of Indiana recently certified a class seeking economic damages under Indiana’s consumer protection statute in a case challenging contaminated hand sanitizer manufactured by 4e Brands North America, LLC.  Callantine v. 4e Brands North America, LLC, 2024 WL 4903361 (N.D. Ind. Nov. 27, 2024). 

In June 2020, Defendant 4e voluntarily recalled all of its hand sanitizer lots due to the presence of methanol.  The plaintiff filed a class action lawsuit two months later, alleging that she had suffered both economic and personal injuries, and that she was entitled to statutory damages.  The individual class members’ damages, however, would be “largely limited to statutory damages.” Continue Reading Unique Injuries No Bar to Class Certification Pursuing Economic Damages

In a significant decision for businesses who are attempting to revise their consumer arbitration clauses to address the prospect of mass arbitration, the Ninth Circuit affirmed the district court’s denial of Live Nation and Ticketmaster’s motion to compel arbitration, based largely on the content of the mass arbitration provisions of their arbitration agreement.  Heckman v. Live Nation Ent., Inc., – F.4th –, 2024 WL 4586971 (9th Cir. Oct. 28, 2024).  The court concluded that the “dense, convoluted and internally contradictory” arbitration rules cross referenced in Ticketmaster’s arbitration provision, along with other elements of the provision, rendered it unenforceable.  The court also held, on an alternate basis, that the Federal Arbitration Act (FAA) did not even apply to the mass arbitration procedure at issue because it is “not arbitration as envisioned by the FAA.”Continue Reading A Closer Look: Ninth Circuit Holds Arbitration Agreement with Certain Mass Arbitration Protocols Unenforceable

In the latest false advertising decision regarding malic acid (see prior Inside Class Actions coverage here, here, and here), the Southern District of California dismissed with prejudice a plaintiff’s claim that defendant falsely advertised that its licorice was “naturally flavored” because testing allegedly showed that the product…

Continue Reading California Federal Court Dismisses False Advertising Suit Based on Malic Acid

In the first court decision addressing National Bank Act preemption since the Supreme Court clarified the standard in Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Ninth Circuit reaffirmed that the Act does not preempt a California state law requiring banks to pay interest on funds held in their customers’ escrow accounts.  See Kivett v. Flagstar Bank, FSB, 2024 WL 3901188 (9th Cir. Aug. 22, 2024).Continue Reading Ninth Circuit Addresses National Bank Act Preemption after Supreme Court Decision

In Montera v. Premier Nutrition Corp., — F.4th —, 2024 WL 3659589 (9th Cir. Aug. 6, 2024), the Ninth Circuit vacated and remanded a district court’s statutory damages award, holding that an aggregate award of statutory damages is not subject to the Supreme Court’s State Farm due process standard for punitive damages, but should instead be assessed in light of the proportionality and reasonableness of the aggregate award considering the legal violation committed. Continue Reading Ninth Circuit Gives Plaintiffs Second Chance at $91 Million in Statutory Damages

In a putative class action in the District of Delaware against Match Group, Inc., a magistrate judge has recommended that a motion to dismiss be granted based on finding that alleged misrepresentations were non-actionable puffery, opinion, and/or forward-looking statements.  The opinion offers a useful analysis, with examples, of how these concepts are appropriately applied.

Match Group owns and operates several online dating services, including Tinder, Hinge, Match.com, and OkCupid. Plaintiffs, including a shareholder seeking to recover on behalf of all Match Group investors, brought claims under the Securities Exchange Act alleging that Match Group made material misrepresentations and omissions regarding a) the integration of Hyperconnect (a “social discovery and video technology” company acquired by Match Group); and b) the performance of two new Tinder product offerings, Explore (an interactive social discovery interface, seeking to match users based on similar interests) and Tinder Coins (an in-app currency).

The magistrate judge agreed with Match Group that the complaint should be dismissed because the statements in question were either accurate and non-contradictory, or non-actionable puffery, opinion, and/or forward-looking statements. See Bardaji v. Match Group Inc. et al., No. 1:23-cv-00245 (D. Del. June 27, 2024).Continue Reading District of Delaware Magistrate Finds Dating App Misrepresentation Claims Non-Actionable

California’s prohibition on so-called “hidden” or “junk” fees in consumer transactions is set to take effect on July 1, 2024, with potentially wide-ranging ramifications for how prices are displayed or offered to consumers in the Golden State – and the potential for a significant wave of new class action litigation.

The law—often referred to by its bill number, SB 478—amends California’s Consumer Legal Remedies Act (“CLRA”) to restrict the prices and fees businesses can offer to California consumers.  The basic prohibition is stated in simple terms:  businesses can no longer “advertis[e], display[], or offer[] a price for a good or service that does not include all mandatory fees or charges” to consumers, with limited exceptions such as for sales tax and certain shipping charges.  SB 478 § 3 (to be codified at Cal Civ. Code § 1770(a)(29)(A)).  But this simple language generates numerous complexities.  For example:  Are clearly disclosed fees prohibited if not folded into the main price, or just fees not presented to consumers in close proximity (in both location and time) to the primary price?  When is a fee “mandatory”?  Can fees that are included in a price still be itemized? Continue Reading Outlawing Hide-and-Seek:  California’s Prohibition on “Hidden Fees” in Consumer Pricing Set to Take Effect