Category Archives: Class Action

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Yahoo! Says Yahoo! In Defeating Class Certification in TCPA Texting Case

In a big win for Yahoo!, the U.S. District Court for the Southern District of California denied certification of a putative class in a suit alleging that Yahoo! violated the Telephone Consumer Protection Act (“TCPA”).  The litigation arose out of claims that Yahoo! spam-texted consumers by allowing its users to send text messages from a … Continue Reading

Court Grants Class Cert. in Deceptive Pricing Action Against Clothing Retailer

We all love a good bargain, but sometimes a good deal seems too good to be true.  In 2011, Cynthia Spann went bargain-hunting at a California J.C. Penney, and walked out convinced that she had saved over 30%.  However, she later discovered the products she bought at a “bargain” price had never really been sold … Continue Reading

“Judicially Found to Help Prevent False Advertising Litigation”: Fourth Circuit Clarifies Requirements for Pleading a Dietary Supplement False Advertising Claim

On June 19, 2015, the U.S. Court of Appeals for the Fourth Circuit issued its decision in In re GNC Corporation; Triflex Products Marketing and Sales Practices Litigation (No. II), — F.3d –, No. 14-1724, 2015 WL 3798174 (4th Cir. June 19, 2015), handing a significant victory not just to the defendants in that multidistrict … Continue Reading

Security Equipment Manufacturer Secure in Its TCPA Defense: Court Finds Company Not Vicariously Liable for Authorized Dealer’s Alleged TCPA Violations

While plaintiffs’ attorneys seek to streamline the filing of class actions under the Telephone Consumer Protection Act (“TCPA”), a recent court decision serves as a reminder that there are clear limits to a plaintiffs’ ability to recover statutory damages under a theory of vicarious liability. On May 18, 2015, the U.S. District Court for the … Continue Reading

TCPA “Pick Off” Play – Supreme Court to Consider whether a Settlement Offer to Named Plaintiff Moots Class Action

The Supreme Court will decide whether a defendant can “pick off” the named plaintiff in a Telephone Consumer Protection Act (TCPA) class action – and moot the putative class claims – by making a Rule 68 offer of judgment before the putative class representative files a motion for class certification.  Thus, the Supreme Court could … Continue Reading

Is Organic the New Natural?: The Impact of a Court Holding that an “Organic” Claim Is Not Preempted By Federal Law

By now, class action suits over foods using the term “natural” are old news following the age old American story:  class action plaintiff meets product, product assures plaintiff it is all-natural, plaintiff finds something in product that it doesn’t think is natural, lawsuit ensues.   Over the course of the last few years, cases challenging “natural” … Continue Reading

Supreme Court to Decide whether the TCPA’s, FCRA’s and FDCPA’s Statutory Damages Provisions Are Damaged under an Article III Standing Analysis

Statutes such as the Telephone Consumer Protection Act (“TCPA”), Fair Debt Collection Practices Act (“FDCPA”), and Fair Credit Reporting Act (“FCRA”) long have been favorites for class-action lawyers.  Plaintiffs’ attorneys leverage significant statutory damages to generate large judgments or settlements for persons who often experience nothing more than the inconvenience of receiving an unwanted call … Continue Reading

Miller/Coors Sings the Blues over Craft Beer Lawsuit

There has been a trend of late toward “hand-crafted” goods.  Advertisers, as they always do, have responded to this trend through creative marketing and, as they always do, class action lawyers have not been far behind.  The alcohol industry has been a prime target; for example, Tito’s Handmade Vodka was sued recently by a plaintiff … Continue Reading

Arbitrate-Shun: Congress’s Proposed Attack on Arbitration Clauses

Last week, Senators Al Franken (D-Minn) and Hank Johnson (D-Ga) revived the Arbitration Fairness Act (“Act”), which would ban arbitration provisions in consumer contracts, as well as employment, antitrust, and civil rights cases, and only allow the parties to agree to arbitration after the dispute arises.  The newfound interest in the Act demonstrates renewed opposition … Continue Reading

Court Rules That Dialing Equipment Must Have “Present Capacity” to Autodial to Come Within the Telephone Consumer Protection Act

On February 4, 2015, in Glauser v. GroupMe, Inc., No. 4:11-cv-02584, the U.S. District Court for the Northern District of California struck a blow to class action plaintiffs asserting claims under the Telephone Consumer Protection Act (“TCPA”), interpreting the TCPA’s definition of “automatic telephone dialing system” (“ATDS”) narrowly to mean equipment that has the “present … Continue Reading

Facing the Fax: Always Use Opt-Out Notices for Fax Advertisements (and Seek A Retroactive Waiver, If You Haven’t)

Even in 2014, fax marketing by associations, businesses, and other individuals shows no sign of slowing down.  We have previously noted the significant number of class action lawsuits involving fax advertisements under the Junk Fax Prevention Act (“JFPA”). Now the Federal Communications Commission (“FCC”) is drawing more attention to this less common form of advertising.  … Continue Reading

Designer Duds? Class Action Alleges a “Made in USA” Fashion Faux Pas

Is the “surf up” again in California for “Made in USA” class actions?  A prior wave of “Made in USA” class action litigation in California crashed up against a number of legal difficulties, including how one calculated damages for buying a product “mislabeled” as “Made in USA.”  However, the California Supreme Court in the Kwikset … Continue Reading

Absence of Federal Standard Greases Way for Another “Natural” Class Action

Another consumer class action over allegedly false and misleading “natural” claims survived a motion to dismiss in the Southern District of New York on May 15, 2014.  At issue in Ault v. J.M. Smucker Co. is whether “All Natural” claims made on labels of Smucker’s Crisco branded vegetable oils are false and misleading.  The plaintiffs … Continue Reading

POM Wonderful’s Decertification Decision Will Be Hard to Swallow for the Plaintiffs’ Class Action Bar

On March 25, 2014, Judge Dean Pregerson, of the U.S. District Court, Central District of California, decertified a nationwide class of consumers in a class action brought against POM Wonderful LLC over allegedly false and misleading health claims related to its pomegranate juice.  Judge Pregerson’s decertification order is significant because it makes class certification more difficult … Continue Reading

Siri, Should Plaintiffs’ Case Be Dismissed? Yes.

In an important development for product demonstration claims, a federal court recently dismissed with prejudice a lawsuit claiming that Apple’s advertising overstated the voice recognition capability for Siri. When Apple first launched its iPhone 4S the company touted the inclusion of a voice-activated personal assistant, called “Siri.”  A number of commercials were aired in which … Continue Reading

Chipotle Case Gives Hope Against Class Actions

As we noted yesterday, it’s not necessarily a given that an allegedly misleading advertising claim leads inexorably to a viable class action lawsuit (most likely venued in California.).  Here’s one such recent example as to why. In the federal District Court in Los Angeles this past month, Chipotle Mexican Grill successfully defeated a class action … Continue Reading

California Court Continues Ascertainability Trend, Denies Class Certification in Chipotle “Naturally Raised” Litigation

Purveyors of mass-retail food products may have a new reason to rejoice this holiday season. On December 2, the U.S. District Court for the Central District of California, in Hernandez v. Chipotle Mexican Grill, Inc., quietly issued a three-page In Chambers Order denying class certification in a false advertising action challenging Chipotle’s claim that its … Continue Reading

The TCPA and Confirmatory Opt Out Text Messages

Earlier this summer, a federal judge in the Southern District of California dismissed a potential class action suit against Redbox over the movie rental company’s use of confirmations for opt-out text messaging. Judge Dana Sabraw agreed with Redbox that a declaratory ruling from the FCC in November 2012 had held that confirmatory, noncommercial text messages … Continue Reading

Ninth Circuit to Retailers: “Price Advertisements Matter” – Another Breach in the Prop 64 Dam?

Today only, read our blog for free! Well actually, it’s always free.  But have we just opened ourselves up to a class action lawsuit in California?  Perhaps. According to the Ninth Circuit, the term “Discount Sale” provides consumers with important information about a product’s worth and prestige.  Falsely labeling a product’s “original price” as its … Continue Reading

An Artisanal Blog on Artisanal Labeling

We don’t have to remind anyone who markets a food product that the number of consumer class actions has grown tremendously.  And nowhere is that perhaps more evident than with the use of the term “natural.” Does the use of the adjective “artisanal” with respect to food threaten to become the next “natural?”  Perhaps.  But … Continue Reading
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