Online games company loses motion based on unconscionability
New Jersey Supreme Court Sides with Aéropostale in Consumer Class Action
In a significant legal victory for New Jersey retailers, that state’s Supreme Court has ruled in a class-action lawsuit that advertising illusory discounts and phantom former prices does not necessarily cause consumers to sustain an ascertainable loss, and therefore dismissed the lawsuit despite the state’s generally very pro-consumer protection statute, the Consumer Fraud Act (“CFA”).
Arby’s roast beef accused of being less plentiful, too well done compared to ads
For the past few years, Arby's Restaurant Group, Inc. touts its fast-food chain with the slogan, “We have the meats.” Now, a class-action lawsuit filed in the Eastern District of New York alleges otherwise. Plaintiff Joseph Alongis accuses Arby's of engaging in unfair and deceptive trade practices by using misleading photographs of sandwiches in its advertising. According to Alongis, Arby's customers receive roast beef and brisket sandwiches with significantly less meat than the amount depicted in advertisements.
Tom Brady and Gisele Bundchen join Kim Kardashian and Floyd Mayweather as defendants.
* Taylor Lodise is a law clerk in the Litigation practice group.
In one of several related class-action lawsuits against the maker of a drink marketed under the brand name Joint Juice, Chief Judge Richard Seeborg of the United States District Court, Northern District of California, applied case law from 103 years ago to reduce statutory damages in a consumer class action from the $91.4 million seemingly required by a New York statute to just $8.3 million plus pre-judgment interest of $4.5 million. The August ruling was based on Fourteenth Amendment due process protections as interpreted by the Supreme Court in the 1919 case St. Louis, Iron Mountain & Southern Railway Co. v. Williams (“St. Louis”).
* Rachel Gold is a law clerk in the Corporate/Securities Law practice group.
Panera Bread Company (“Panera”) is facing a class action lawsuit that alleges its Unlimited Sip Club (“Club”) is in fact not so unlimited. According to Panera’s own promotional materials, the Club is a refill program where members pay $10.99 per month for access to lemonade, soda, coffee, and tea drinks of “any size” at “any time.”
Sweepstakes entrants’ lack of knowledge of free method of entry insufficient to constitute violation of California Penal Code.
A Northern District of California case styled Suski v. Marden-Kane, Inc. (decided August 31, 2022) has resulted in a significant ruling in the field of sweepstakes law. A sweepstakes sponsored by Coinbase, a popular cryptocurrency exchange, and administered by Marden-Kane offered the chance to win valuable prizes to Coinbase users who bought or sold Dogecoin, a well-known “meme” token, on Coinbase for a total of $100 or more. The sweepstakes offered an alternative method of entry that did not require the trading of Dogecoin or incurrence by the entrants of any other expense. However, this free alternative method of entry was not well-publicized.
Juice Joint facing catastrophic liability after jury decides against it on the merits
Faced with a series of class-action lawsuits over its Joint Juice drink, Premier Nutrition Corp. has lost the first jury trial and is now fighting back against what could be a devastating financial blow if it loses a post-trial motion scheduled to be heard next month in the Northern District of California. The company was found by a jury to have falsely touted the health benefits of the drink, so the issue is no longer whether the claims were defensible, but how much the marketer will have to pay to the class of purchasers.
TCPA liability reduced to $500 for Gold’s Gym
A recent ruling out of the Central District of California will prove to be very useful for telemarketers faced with class actions under the Telephone Consumer Protection Act (“TCPA”). In Bustillos v. West Covina Corporate Fitness, Inc., United States District Judge Stanley Blumenfeld, Jr. denied an order seeking class certification where it was clear that the call in question violated the TCPA.
Defendants plagued by failure to include arbitration clause in sweepstakes rules
A class-action lawsuit against an online sweepstakes operator will go forward despite the plaintiffs’ admitted agreement to an arbitration clause. The sweepstakes offered the chance to win $1.2 million in Dogecoin, a type of cryptocurrency. The plaintiffs in the Northern District of California district court action, styled Suski v. Marden-Kane et al., initially agreed to arbitrate all disputes at the time they opened their online accounts with defendant Coinbase Global, Inc.
As reported in The New Jersey Law Journal (subscription required), Olshan partner Scott Shaffer achieved a full dismissal with prejudice of a class-action lawsuit filed under New Jersey’s Consumer Fraud Act.
The New Jersey Law Journal (subscription required) reported that Olshan partner Scott Shaffer achieved a full dismissal with prejudice of a Consumer Fraud Act class action suit on behalf of Pure Radiance, a distributor/manufacturer of wellness products. The suit was dismissed because the lawyer-plaintiff, Harold Hoffman, claimed that the purchased nutritional product did not perform as advertised. The lawyer-plaintiff asserted that the advertising for the consumer product made claims that were not substantiated by research, but in a first-of-its-kind state court decision, the court ruled that sort of claim is reserved for the attorney general, not a private plaintiff. The Court further ruled that the lawsuit failed to allege sufficient facts to state a claim under New Jersey’s Consumer Fraud Act. Scott Shaffer was quoted as saying that “the judge’s ruling is correct in assessing the Consumer Fraud Act, and on behalf of the client, I’m pleased with the ruling.”
Reckitt Benckiser agrees to pay $53 million to end class actions regarding dietary supplement pain relief claims.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was quoted in The Legal Examiner on the recent class action lawsuit filed against TikTok by a group of parents who are suing the social media app under allegations that it illegally collects and shares identification information to send to China.
Wright, et al v. Publishers Clearing House, Incorporated and Publishers Clearing House, LLC (EDNY April 23, 2018)
Pre-fight concealment of boxer’s injury did not give consumers a cause of action
Issue of Ascertainability Blocks Plaintiff From Proceeding On Class Basis
Practice is common in Northern District of Illinois
Attempts to end class action with “pick off” strategy continue to fail.
A high-profile trial involving a potential Presidential nominee, especially during elections, will make it difficult to facilitate a fair trial and allow forward progress in the case.
Marketers, it's important to dust off your terms and conditions. 2016 has seen a sharp spike in consumer lawsuits alleging violations of New Jersey’s awkwardly named Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14, et seq. (the “TCCWNA”).
Magazine publishers and list managers take note. American Media is the latest magazine publisher to be hit with a class action lawsuit accusing it of violating subscribers’ privacy rights by selling information about them without written consent. The suit is part of a growing trend, following similar allegations in the past year against leading media companies like Conde Nast parent company Advance Magazine Publishers Inc., Hearst Communications Inc. and Reader’s Digest publisher Trusted Media Brands, Inc., to challenge list rental practices under a long-ignored Michigan statute enacted in the wake of the Robert Bork Supreme Court nomination proceedings.
Luxury retailers Burberry and Coach were the latest retailers to be hit with class action lawsuits involving accusations of deceptive pricing and discount advertising of merchandise sold at their outlet stores. The lawsuits are part of a growing trend focusing on allegations of deceptive outlet and discount store comparative pricing.
Retailers across the country have been facing private class action lawsuits alleging that certain discount pricing practices constitute false advertising based on the allegation that the discount is fictitious. Discount retailer, Kohl's, recently obtained dismissal of one such action.
Abercrombie & Fitch sent text message to cell phone’s prior owner
Justice Ginsburg suggests, but does not approve, a new strategy
Industry leaders accused of allowing “insider trading”
CLIENT ALERT
Marketers who communicate with consumers on mobile devices and smart phones must stay current with the FCC's new rulings.
The Ninth Circuit’s ruling allows selective posting and arranging of content but does not preclude future lawsuits.
The FiveFingers settlement illustrates the importance of having scientific or factual data to support specific health or safety claims in advertising.
In Keim v. ADF MidAtlantic, LLC, decided on July 15, 2013 in the Southern District of Florida, the defendants were allowed to moot the threat of a class action by paying the plaintiff everything he demanded on his individual claim.
Here is a look at four recent class-action lawsuits under the Telephone Consumer Protection Act (TCPA):