Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Category Archives: Consumer Class Action

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U.S. Supreme Court: Shaping the Personal Jurisdiction Landscape in Product Liability Cases

Posted in Consumer Class Action, Product Liability & Torts
On June 19, 2017, the U.S. Supreme Court issued a decision clarifying the circumstances in which a lawsuit “arises out of” or “relates to” a corporation’s contacts with a particular jurisdiction, such that it can be sued there. In Bristol-Myers Squibb Co. v. Superior Court, writing for an 8-1 majority, Justice Alito held that California… Continue Reading

A New Twist on a Familiar Theme: NJ Lawsuit Targets Retailer’s Savings Claims, Seeking Damages Under Once Obscure Statute

Posted in Advertising & Product Risk Management, Consumer Class Action
There’s a new tool for deceptive pricing class actions challenging “up to __%” savings promotional messaging:  A new lawsuit filed in New Jersey alleges that the clothing retailer’s “up to _% off” promotional messaging violates New Jersey’s consumer protection laws. The plaintiff sued Jos. A. Bank under the New Jersey Truth in Consumer Contract, Warranty… Continue Reading

Update: Class Action Reform Bill Passes House 220-201

Posted in Consumer Class Action
Last month, our colleague Joshua Foust analyzed the then-newly introduced Fairness in Class Action Litigation Act of 2017.  The bill, sponsored by House Judiciary Chairman Bob Goodlatte (R-VA), amends procedures used in federal court class action and mass tort litigation.  Last week, on March 9, just one month after Chairman Goodlatte (R-VA) introduced the bill,… Continue Reading

Class Dismissed? New House Bill Could Transform Federal Class Action Law

Posted in Consumer Class Action
Just a week before Congress began its first extended recess of 2017, the Chairman of the House Judiciary Committee took a step towards dramatically changing the landscape of class action litigation. On Thursday, February 9, Representative Bob Goodlatte (R-Va.) introduced a bill (H.R. 985) that would “amend the procedures used in Federal court class actions”… Continue Reading

Would “Juice” by Any Other Name Taste as Sweet? Court Cites FDA Guidance in Resuscitating “ECJ” Class Action

Posted in Advertising & Product Risk Management, Consumer Class Action
In a long-awaited pronouncement, on May 25, 2016 the Food and Drug Administration issued its final guidance recommending that food and beverage manufacturers discontinue their use of the term “evaporated cane juice” (ECJ) to refer to sweeteners extracted from sugar cane. As the agency explained, “the use of ‘juice’ in the name of a product… Continue Reading

Beauty with a Side of Mercury?

Posted in Advertising & Product Risk Management, Consumer Class Action, Product Liability & Torts, Torts
On July 26, 2016, FDA issued an updated warning on beauty products, warning consumers to avoid certain “skin creams, beauty and antiseptic soaps, and lotions,” particularly those boasting “anti-aging” or “skin lightening” benefits, as potentially containing mercury.  While the dangers of mercury exposure are well-known, mercury’s ubiquity in certain beauty products is not.  Products that… Continue Reading

A New Federal GMO Labeling Standard in the Works?

Posted in Advertising & Product Risk Management, Consumer Class Action
One week before the Vermont GMO labeling law will take effect, a bipartisan bill requiring mandatory labeling for products containing genetically modified ingredients has been agreed to by Senate AG committee ranking member Debbie Stabenow (D-MI) and Committee Chairman Pat Roberts (R-KS).  The bill, which would require the Secretary of Agriculture to establish a national… Continue Reading

Keeping It “Real”: Supreme Court Holds That Consumers Must Allege Real Harm

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection
In Spokeo, Inc. v. Robins, the U.S. Supreme Court has issued yet another narrow decision—apparently designed to avoid a 4-4 deadlock—in another hard-fought, potentially divisive case on its docket this term. On May 16, 2016, the Court held 6-2 that the Ninth Circuit had erred in not asking whether plaintiff Robins had alleged that he… Continue Reading

Ninth Circuit Refuses to Cut Plaintiff Slack in Ebner v. Fresh, Inc.

Posted in Advertising & Product Risk Management, Consumer Class Action
Companies from Procter & Gamble and Unilever to Mars and Starbucks have recently been hit with class actions slightly different from the false advertising claims we have gotten used to seeing. Now, instead of just alleging that companies are deceiving consumers through the language used in their advertising claims, consumer plaintiffs are expanding their allegations… Continue Reading

Won’t Get Fooled Again: Recent Bigelow Decision Raises Roadblock to Consumer Plaintiffs Seeking Injunctions in False Advertising Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Federal judges often find themselves confronting a familiar conundrum in consumer class actions that challenge misleading practices. The typical plaintiff will file a suit after somehow discovering that one of the defendant’s advertisements, product labels, or other representations is “false” or “misleading.” The self-nominated “representative” asks the court to certify a class of all consumers… Continue Reading

Heading Off the Pick-Off: Ninth Circuit Slams Door on Use of Rule 68 “Deposits” to Moot Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Handed down January 20, 2016, the Supreme Court’s decision in Campbell-Ewald Co. v. Gomez was a major blow to what class action practitioners call the pick-off strategy: using a Rule 68 offer of complete relief to “pick off” a putative class representative, thereby mooting the class action suit. In Campbell-Ewald the Court rejected this tactic… Continue Reading

The World on a Chocolate Wrapper: California District Court Clarifies Companies’ Duty to Disclose Human Rights Abuses in Supply Chains

Posted in Advertising & Product Risk Management, Consumer Class Action
The continuing use of child and forced labor in parts of the world is, without question, a humanitarian tragedy. Less clear, though, is whether consumer class actions in the United States are a suitable tool for addressing this problem. Should retailers and manufacturers be subject to suit under consumer protection statutes if they fail to… Continue Reading

Down Goes Tyson: What Does Tyson Foods v. Bouaphakeo Mean for Consumer Class Actions?

Posted in Advertising & Product Risk Management, Consumer Class Action
Last Tuesday, the U.S. Supreme Court handed down its keenly anticipated decision in Tyson Foods, Inc. v. Bouaphakeo, another in its recent run of class action cases. Siding 6-2 with the plaintiffs-respondents, the majority held that the employees at one Tyson pork processing plant could extrapolate how much overtime class members had worked from statistical… Continue Reading

Join C&M and other legal experts for the FBA’s Fashion Law Conference

Posted in Advertising & Product Risk Management, Antitrust & Claims Recovery, Consumer Class Action, International Trade, IP/Brand Protection, Privacy & Data Protection
On February 12, 2016, the Federal Bar Association will host a day-long Fashion Law Conference at Parsons School of Design (Starr Foundation Hall in the New School’s stunning new University Center) on the last day of New York Fashion Week! Speakers include in-house counsel from The Estee Lauder Companies, Inc., Tiffany & Co., New York &… Continue Reading

Hello Barbie (and Lawsuit)

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection, Torts
Just in time for the holiday shopping rush, “Hello Barbie” has hit the shelves.  This Barbie actually talks back to its playmates and is the latest high-tech version of the iconic doll. The secret to this innovation? The Internet. Toymaker Mattel partnered with software firm ToyTalk to equip the doll with a microphone, voice-recognition, and… Continue Reading

Here Come the GMO-Free Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action
Whether to label foods as either containing genetically-modified organisms (GMOs) or being GMO-free is getting more complicated. On the one hand, Vermont’s GMO-labeling law, which has thus far survived legal challenge, will require by next July that all foods for sale at retail in the state bear labeling regarding GMO content. On the other hand, many retailers… Continue Reading

Is Makeup About to Get Ugly? Plaintiffs’ Counsel May See the High Promises of Some Cosmetics Advertisements as a Source of Litigation

Posted in Advertising & Product Risk Management, Consumer Class Action
While a study hardly seems necessary to confirm it, an article published in the Journal of Global Fashion Marketing reports that of 289 cosmetics ads surveyed, only 18% could be viewed as generally trustworthy. While some may view this finding to be mere common sense, others – particularly plaintiffs’ counsel looking for potential class action claims… Continue Reading

Report from FDLI’s 2014 Enforcement, Litigation and Compliance Conference

Posted in Advertising & Product Risk Management, Consumer Class Action, Product Liability & Torts
On December 8 and 9, 2014, the Food and Drug Law Institute (FDLI) held its annual Enforcement, Litigation & Compliance Conference in Washington, D.C. Speakers from the U.S. Food and Drug Administration (FDA), Department of Justice (DOJ), and other federal agencies, as well as representatives from industry and the private bar, discussed recent activity and… Continue Reading

Stricter Rules for Fuel Economy Advertising Are on the Horizon, But Are Unlikely to Put the Brakes on Consumer Class Actions

Posted in Advertising & Product Risk Management, Consumer Class Action, Environment & Natural Resources
The Federal Trade Commission (FTC) and U.S. Environmental Protection Agency (EPA) are both considering tightening rules governing the advertising of vehicle fuel economy. New federal regulations, however, may not stem the recent tide of consumer class actions alleging that auto manufacturers have misled consumers with inaccurate miles-per-gallon (MPG) claims. Since 1975, the FTC has published… Continue Reading

DOJ’s Recently Articulated Position on the Accessibility of Point-of-Sales Devices

Posted in Consumer Class Action
In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the… Continue Reading

California Legislature Seeks to Restrict Data Use and Ramp Up Retailer Liability for Data Breaches

Posted in Advertising & Product Risk Management, Consumer Class Action, Privacy & Data Protection
A bill has been introduced in the California legislature that would dramatically increase retailers’ liability for data breaches. Dubbed the “Consumer Data Breach Protection Act,” Assembly Bill 1710 would enact sweeping changes to California’s data breach notification laws, setting short deadlines by which consumers would need to be notified of breaches and increasing the penalties… Continue Reading

California Court Proposes to Assess $6.8 Million Penalty Against Online Discount Retailer For Engaging in Commonly Used Pricing Claims

Posted in Advertising & Product Risk Management, Consumer Class Action
A California state court recently issued a preliminary ruling proposing to assess a statutory penalty against online discount retailer Overstock.com in the amount of $6.8 million for engaging in allegedly false and misleading discount advertising.1 Overstock.com was alleged to have advertised discounted prices that were pegged to the company’s own uncorroborated estimate of undiscounted retail… Continue Reading

Telemarketers Beware: New TCPA Regulations Effective October 16, 2013

Posted in Consumer Class Action, Privacy & Data Protection
The deadline for complying with new Telephone Consumer Protection Act (TCPA) regulations is on Wednesday, October 16, 2013. The new rules, promulgated by the FCC in 2012, govern the circumstances under which telemarketers can contact consumers. Non-compliance puts both telemarketers and those companies that they act “on behalf of” at potential risk. As of October… Continue Reading

Data Breach Class Action Against Barnes & Noble Dismissed for Lack of Standing

Posted in Consumer Class Action, Privacy & Data Protection
On September 3, 2013, the U.S. District Court for the Northern District of Illinois dismissed a class action complaint against Barnes & Noble seeking damages based on a data security incident, finding that the plaintiffs lacked standing to bring the claims. This decision reaffirms that retailers may be able to avoid damages for data breaches… Continue Reading