Category Archives: False Advertising

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Dancing On Their Own: The California Supreme Court’s Decision in McGill v. Citibank, N.A. that Class Action Waivers Do Not Apply to Claims for Public Injunctive Relief under California’s Consumer Protection Laws

On April 6, 2017, the California Supreme Court struck another blow in its contentious battle with the United States Supreme Court on the enforceability of consumer arbitration clauses subject to the Federal Arbitration Act (FAA).  In McGill v. Citibank, N.A., No. S224086, Slip Op. at 1 (Cal. Apr. 6, 2017), the Court held that an … Continue Reading

Ninth Circuit Confirms Brazil v. Dole Decertification Due to Faulty Damages Model

In Brazil v. Dole, No. 14-17480 (9th Cir. Sept. 30, 2016), the United States Court of Appeals for the Ninth Circuit affirmed in part and reversed in part three different orders issued by the U.S. District Court for the Northern District of California.  In doing so, the Ninth Circuit (1) confirmed that in order to … Continue Reading

Plaintiffs’ Full Refund Theory of Restitution Under California’s Unfair Competition Law Goes Up in Smoke in Latest Tobacco II Opinion

The long saga of In re Tobacco Cases II recently produced yet another appellate opinion addressing California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and the remedies they provide.  This time, in In re Tobacco Cases II, 240 Cal. App. 4th 779 (Sept. 28, 2015) (“Tobacco II”), the appellate court considered what “restitution” under … Continue Reading

The Ninth Circuit Declares That Individualized Damages Issues Alone Never, Ever Preclude Certification of a Rule 23(b)(3) Class

In Pulaski & Middleman, LLC v. Google, Inc., No. 12-16752, 2015 U.S. App. LEXIS 16723 (9th Cir. Sept. 21, 2015), a Ninth Circuit panel held that individualized damages (or restitution) calculations cannot alone defeat Rule 23(b)(3)’s predominance element. The opinion is significant because the district court below had determined that an exceedingly high degree of … Continue Reading

Ninth Circuit Reiterates that Misrepresentation Must be Made to All Class Members

On June 23, 2015, the Ninth Circuit in Cabral v. Supple LLC, — Fed. Appx. –, 2015 WL 3855142 (9th Cir. June 23, 2015) placed a significant hurdle in the path of false advertising class actions.  Specifically, the Court held that in class actions “based upon alleged misrepresentations in advertising and the like,” in order … Continue Reading

Recent Ninth Circuit Decisions in False Advertising Consumer Class Action Cases May Prevent Preemption and Relegate the Primary Jurisdiction Doctrine to Second-Class Status

In two recent decisions, Reid v. Johnson & Johnson, __ F.3d __, Case No. 12-56726 (9th Cir. March 13, 2015) and Astiana v. The Hain Celestial Group, Inc., __ F.3d __, Case No. 12-17596 (9th Cir. April 10, 2015), the Ninth Circuit either rejected or minimized the use of preemption and primary jurisdiction as defenses … Continue Reading

Ascertainability Saps Plaintiffs’ Energy in Dietary Supplement Class Action

In the recent decision Mirabella v. Vital Pharmaceuticals, Inc., Case No. 12-62086-CIV-ZLOCH (S.D. Fl. Feb. 27, 2015) the plaintiffs attempted, but failed, to certify a nationwide class of all purchasers of an energy drink that allegedly caused harmful side-effects.  The plaintiffs brought claims under Florida’s consumer protection statute, known as the Deceptive and Unfair Trade … Continue Reading

Dole Defeats “All Natural Claims” for Sweet Victory

On December 8, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted defendant Dole’s motion for summary judgment of the plaintiff’s false labeling claims in Brazil v. Dole Packaged Foods, LLC.  The court granted summary judgment on the ground that the plaintiff had failed to … Continue Reading

Faulty Damages Model Leads to Partial Decertification

On November 6, 2014, U.S. District Court Judge Lucy Koh of the U.S. District Court for the Northern District of California granted in part defendant Dole’s motion for decertification in Brazil v. Dole Packaged Foods, LLC.  In May of 2014, the court had granted certification of classes under both Federal Rule of Civil Procedure 23(b)(2) … Continue Reading

Courts Still Searching for Sweet Spot in “Evaporated Cane Juice” Cases: Confusion Over Applicability of Primary Jurisdiction to ECJ Claims Continues

May 2014 was an active month for evaporated cane juice (“ECJ”) litigation in the U.S. District Court for the Northern District of California.  Six courts issued opinions that involved the application of the primary jurisdiction doctrine to ECJ claims.  The primary jurisdiction doctrine allows courts to stay or dismiss a complaint without prejudice, pending the … Continue Reading

Tea Manufacturer Defeats Damages – Seeking Class Action Plaintiff in an Opinion Steeped in Comcast

In Lanovaz v. Twinings North America, Inc., 2014 WL 1652338, Case No. C-12-02646-RMW (N.D. Cal. April 24, 2014), the court granted-in-part and denied-in-part a motion for class certification in a false advertising case about tea labels.  The plaintiff alleged that the defendant’s tea was “misbranded” because it advertised the tea as a “Natural Source of … Continue Reading

J.M. Smucker Company Gets Out of a Jam in Food Labelling Case

On April 15, 2014, in the case Caldera v. The J.M. Smucker Co., CV 12-4936-GHK, J.M. (C.D. Cal.), Smucker Company (“Defendant”) defeated the plaintiff’s motion for class certification in a case challenging the labels on Defendant’s Crisco shortening and Uncrustables food products.  The lawsuit claimed that Defendant had mislabeled its Crisco shortening with false claims … Continue Reading

Sweet(ener) Confusion: Court Divide Over Role of Primary Jurisdiction Doctrine in “Evaporated Cane Juice” Cases Grows

In Swearingen v. Santa Cruz Natural, Inc., No. C 13-04291 (N.D. Cal. April 2, 2014), Judge Illston of the U.S. District Court for the Northern District of California granted defendant’s motion to dismiss based on the primary jurisdiction doctrine.  The court held that the determination of the issue of whether the use of the term … Continue Reading

A (POM) Wonderful Result For Consumer Class Action Defendants

On March 25, 2014, the court in In re: POM Wonderful LLC Marketing and Sales Practices Litigation, Case No. ML 10-02199 DDP (C.D. Cal.), granted a motion by defendant POM Wonderful LLC (“POM”) to decertify a previously certified class of consumers who purchased certain POM juice products.  The court granted POM’s motion because plaintiff failed … Continue Reading

Court Issues Sweet Ruling for Plaintiffs in Mislabeling Action – Ignorance That “Evaporated Cane Juice” Is An Added Sugar Not “Implausible”

In Morgan v. Wallaby Yogurt Co., Inc., the U.S. District Court for the Northern District of California denied defendant’s motion to dismiss a class action complaint alleging violations of the UCL, FAL, and CLRA for mislabeling yogurt products, but struck plaintiffs’ prayer for injunctive relief.  The Court held that plaintiffs had standing to bring the … Continue Reading

Comity and Commonality: A Tale of Two Identical Class Actions Brought By Forum-Shopping Plaintiffs’ Counsel

In Murray v. Sears, Roebuck and Co., No. C 09-5744, 2014 WL 563264 (N.D. Cal. Feb. 12, 2014), the U.S. District Court for the Northern District of California denied a motion for class certification that was practically identical to a motion brought in the U.S. District Court for the Northern District of Illinois that was … Continue Reading

Ninth Circuit Concludes That Common Issues Do Not Predominate Where Retailer’s In-Store Signs and Oral Sales Statements Place Each Putative Class Member’s Exposure to Misleading Statements in Doubt

In Berger v. Home Depot USA, Inc., Case No. 11-55592, 2014 U.S. App. LEXIS 2059 (9th Cir. Feb. 3, 2014), the Ninth Circuit Court of Appeals affirmed the denial of class certification based largely on evidence that the defendant’s point-of-sale signs and oral statements supplied allegedly withheld information.  A proposed class lacks the requisite cohesion … Continue Reading

‘Natural’ Suits Persist Absent FDA Definition

It is no secret that some advertisers believe that using the term “natural” is an effective way to advertise a product. Some consumers seem to prefer these “natural” products for a variety of reasons, even while no one (particularly the Food and Drug Administration) has set forth an accepted definition of what “natural” actually means. … Continue Reading

Proposition 37 Permits “Natural” Labeling for Non-GMO Processed Food

Proposition 37, the California Right to Know Genetically Engineered Food Act (“Prop 37”), if approved by the voters on November 6, 2012, will provide that food offered for retail sale in California produced with genetic engineering (“GMO food”) is misbranded unless clearly labeled to say it is genetically engineered. Prop 37 also provides that GMO … Continue Reading

Unreasonable Reliance: Ninth Circuit Affirms Dismissal of FAL, Fraud and UCL Claims at the Pleading Stage

In Davis v. HSBC Bank Nevada, N.A., No. 10-56488, 2012 WL 3804370 (9th Cir. Aug. 31, 2012), the Ninth Circuit affirmed the dismissal of claims for (1) false advertising in violation of the California Business and Professions Code § 17500, et seq. (“FAL”); (2) fraudulent concealment; (3) “unlawful” business practices in violations of California Business … Continue Reading

Kwikset: California Supreme Court Expands Plaintiffs’ Standing To Sue Under The Unfair Competition Law

In Kwikset v. Superior Court (Jan. 27, 2011) __ Cal.4th __, the California Supreme Court greatly expanded the standard for determining whether a plaintiff has standing to sue under the Unfair Competition Law (“UCL”), Business and Professions Code section 17200. In doing so, the Supreme Court disapproved several prior court of appeal decisions that had narrowed … Continue Reading
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