Retail & Consumer Products Law Observer

Retail & Consumer Products Law Observer

Legal Insight for the Retail and Consumer Products Industry

Josh Foust

Josh Foust

Josh Thomas Foust is a counsel in the San Francisco office of Crowell & Moring and is a member of the firm’s Litigation and Advertising & Product Risk Management (APRM) groups. His practice is focused on consumer fraud and false advertising actions, class action defense, breach of contract and warranty cases, complex commercial litigation, financial services and securities litigation, and bankruptcy litigation. He has advised clients in the consumer products, financial services, accounting, insurance, technology, manufacturing, and retail sectors, among others, both in the U.S. and abroad.

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Long Live the King (Bio)

Posted in Advertising & Product Risk Management
Ninth Circuit Follows King Bio Decision in Confirming Private Plaintiffs May Not Challenge “Lack of Substantiation” Under California Law To view the full version of this article, visit the latest version of our Recent Happenings in Advertising & Product Risk Management newsletter. When it comes to prosecuting false advertising, what is the appropriate division of… 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

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