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On Tuesday, March 1, 2016, a panel of judges in the New York Appellate Division, First Department, held that New York Attorney General (AG) Eric Schneiderman’s suit against Donald Trump and the Trump Entrepreneur Initiative LLC (TEI) can move forward.  The court’s decision marks a turning point in the case and resolves ambiguity regarding the contours of the AG’s authority and the statute of limitations for certain causes of action brought by the AG.  The decision is important, one could even say huge.

In August 2013, the AG brought a special proceeding against Trump individually and TEI, formerly known as Trump University LLC.  The action stemmed from a letter sent by the New York State Department of Education in 2005, informing Trump University that it was violating the state’s education law by using the word “University” without a proper charter.  Trump University allegedly did not formally change its name to TEI until May 2010, and ceased operations later that year.Continue Reading New York Attorney General’s Case Against Trump University Goes Forward

Given the increasingly national scope of commerce, consumer products companies find it difficult to deal with issues regulated at the state level, particularly if states adopt differing and sometimes conflicting solutions to a common problem.  As a result, industry often turns to the federal government for help in creating a common federal solution.  The FTC’s Green Guides were originally born out of concern for conflicting state regulation of claims such as recyclables, while today manufacturers are concerned about efforts by states such as Vermont to regulate GMOs in food products.  Recently industry participants utilizing microbeads also appeared to have successfully supplanted numerous state regulations for a uniform federal regulation. [Microbeads, by the way, are plastic microspheres that are commonly used in personal care products.  Because they are so small they tend to end up back into the ecosystem, raising concerns about pollution.]

The Microbead-Free Waters Act of 2015, imposes a ban on manufacturing products with the beads as of July 1, 2017, followed by product-specific distribution bans in 2018 and 2019. Additionally, as industry participants had hoped, the Act also preempts state laws but the statute’s specific wording cracks the door to the enforcement of earlier-in-time state and local microbead restrictions.

The Act addresses microbeads according to the following schedule:
Continue Reading Crying for Federal Micromanagement — Complying with Conflicting Federal, State and Local Microbead Laws has Personal Care Products Companies in Need of Relief

By V4711 (Own work) [CC BY-SA 3.0], via Wikimedia Commons
By V4711 (Own work) [CC BY-SA 3.0], via Wikimedia Commons

On February 1, 2016, the Federal Trade Commission (FTC) filed an action against Chemence, Inc., an Ohio-based manufacturer, advertiser, and distributor of cyanoacrylate glues (often referred to as “superglues”). In its complaint, filed in the United States District Court for the Northern District of Ohio, the FTC alleges that Chemence is deceiving consumers by claiming that all, or virtually all, of its glue products are American-made. Chemence’s glue products, which include Kwik Frame, Kwik Fix, and Krylex, purport to be “Made in the USA” or “proudly made in the USA.” According to the FTC, these claims are unqualified, and thus deceptive, since a “significant proportion”—approximately 55%—of the chemical components in Chemence’s glues are attributable to imported chemicals essential to the way the glues function.

The FTC also claims that Chemence provided the “means and instrumentalities” for others to deceive consumers through its unqualified Made in USA claims by providing deceptive promotional materials to retailers for use in marketing the glues. The complaint asks the court to issue an order permanently prohibiting Chemence from making deceptive Made in USA claims and seeks other relief, including monetary relief and rescission or reformation of contracts.Continue Reading Working Toward a Cohesive Approach to “Made in USA” Claims

In a hotly anticipated decision, the Supreme Court yesterday refrained from permitting defendants to end class action cases by offering to make named plaintiffs whole by paying their damages before plaintiffs move for class certification.

In Campbell-Ewald Co. v. Gomez, 577 U.S. ___ (2016), Jose Gomez alleged that Campbell-Ewald violated the Telephone Consumer Protection Act (TCPA) by sending him unsolicited advertisements by text message.  Campbell-Ewald was contracted by the United States Navy to orchestrate a recruiting campaign, which included text message marketing to potential recruits who had “opted in” to receiving marketing solicitations.  Gomez, who had not “opted in,” received at least one such text message.  Relying on the statutory damages available under the TCPA, Gomez pursued damages and injunctive relief on his own behalf and as part of a class action.Continue Reading Court Rules Settlement Offers Can’t Kill Class Actions

By Mokkie (Own work) [CC BY-SA 3.0], via Wikimedia Commons
Countless Cosmetic and Dietary Supplement Products Implicated

Effective Friday, December 4, the California Office of Environmental Health Hazard Assessment (OEHHA) listed Aloe vera (non-decolorized whole leaf extract) and goldenseal root powder as carcinogens on its list of…

Did you know that, under the U.S. copyright law, if a third party uploads or posts copyrighted material to your website, and the third party did not have authorization to do so from the copyright owner or exclusive licensee of that material, your organization can be held strictly liable for copyright infringement as the operator of the website where it was posted or uploaded?

This is alarming but true – there is strict liability in copyright law.  This means that, even if your organization did not put the infringing content on your website, or did not even know it was there, you can be held strictly liable for infringing content uploaded to your website by another.Continue Reading Website Owners: No Safe Harbor from Copyright Liability for Infringing Content Posted by Third Parties on Your Site If You Are Not Following DMCA Formalities

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 false advertising class action litigation, but to dietary supplement manufacturers nationwide that face false advertising claims brought under state consumer protection laws.  More specifically, the Fourth Circuit’s decision made clear that, in order for a false advertising case to proceed beyond the dismissal stage, the complaint must allege that there is not a single qualified expert who would opine that the challenged representation is truthful.  The ruling should prove a useful tool to any dietary supplement manufacturer finding itself the defendant in a class action alleging unfair, deceptive, or misleading advertising or marketing.

In In re GNC Corporation, the plaintiff-consumers had purchased glucosamine- and chondroitin-based joint health supplements manufactured and sold by the defendants, GNC Corporation and Rite Aid Corporation.  The defendants alternately advertised on the supplements’ labels that the products “promote[] joint mobility & flexibility”; “protect[] joints from wear and tear of exercise”; “rebuild[] cartilage and lubricate[] joints”; “promote[] joint health”; and provide “[m]aximum strength joint comfort.”  The product label for GNC’s “Triflex Fast-Acting” product also represented that the supplement was “[c]linically studied” by means of a randomized, double-blinded, placebo-controlled trial, which concluded that the supplement was “shown to improve joint comfort and function.”  The plaintiffs alleged that the defendants violated the false advertising statutes and consumer protection acts of California, Illinois, Florida, Ohio, and New York by marketing their supplements as promoting joint health, even though many scientific studies purportedly have shown that glucosamine and chondroitin are “no more effective than placebo” in providing the advertised health benefits.  In essence, the plaintiffs asserted that the various health representations made by the defendants were false because the vast weight of competent and reliable scientific evidence indicate that glucosamine and chondroitin do not provide the promised health benefits. 
Continue Reading “Judicially Found to Help Prevent False Advertising Litigation”: Fourth Circuit Clarifies Requirements for Pleading a Dietary Supplement False Advertising Claim

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 Central District of California awarded summary judgment to defendant UTC Fire & Security Americas Corporation, Inc. (“UTC”), finding the security equipment manufacturer could not be held vicariously liable for the actions of its authorized dealers under any theory of agency. The decision marks a win for companies that operate using a dealer or retailer network to distribute their products, in a legal area that is a noted favorite of class action lawyers, and provides an example for how companies may avoid vicarious liability under the TCPA by carefully structuring the way in which they authorize resellers to use and advertise their product.
Continue Reading Security Equipment Manufacturer Secure in Its TCPA Defense: Court Finds Company Not Vicariously Liable for Authorized Dealer’s Alleged TCPA Violations

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 streamline putative class actions by eliminating the need for plaintiffs to file “protective” motions for class certification at the same time they file their complaints.  The case, Gomez v. Campbell-Ewald Co., also involves important vicarious liability issues that litigants routinely address in TCPA class actions.

In Gomez v. Campbell-Ewald Co., the defendant marketing consultant allegedly arranged to send the plaintiff unsolicited text messages in violation of the TCPA through a third-party caller called Mindmatics, purporting to recruit for the U.S. Navy.  Before the plaintiff filed a motion for class certification, Campbell-Ewald offered to pay the plaintiff $1,503.00 per violation, in full satisfaction of the plaintiff’s claims.  The plaintiff allowed the offer to lapse and sought class certification.  Campbell-Ewald argued to the United States District Court for the Central District of California and then to the Ninth Circuit that its Rule 68 offer of judgment mooted the plaintiff’s individual and putative class claims.  The Ninth Circuit disagreed with the defendant, aligning the decision with other circuits which have also held that a rejected Rule 68 offer does not moot claims if the offer is made prior to filing or, or ruling on, a motion for class certification.   The Seventh Circuit, in contrast, held in Damasco v. Clearwire Corp. that a Rule 68 offer made before the plaintiff had filed a motion for class certification mooted the class claims. 
Continue Reading TCPA “Pick Off” Play – Supreme Court to Consider whether a Settlement Offer to Named Plaintiff Moots Class Action

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 or text – in other words, no actual damages are present.  The United States Supreme Court recently granted certiorari in Spokeo, Inc. v. Robins to decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who, therefore, could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute.  The case has widespread implications for lawsuits based on statutes that offer statutory damages (see our TCPA Update for a list of recent lawsuits).

Spokeo, Inc. v. Robins was filed in the United States District Court for the Central District of California under the FCRA.  The plaintiff alleged that Spokeo, Inc., a credit reporting agency, had published inaccurate information that potentially could affect his creditworthiness.  The district court dismissed his complaint, holding that the plaintiff failed to allege an injury or actual harm, characterizing the allegations as simply that the plaintiff had been unable to obtain employment.  According to the court, “allegations of possible future injury” do not satisfy Article III standing requirements.  
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