Archives: Advertising Class Action

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Sixth Circuit Requires Actual Economic Injury for Price Comparison Class Actions

Photo of Jacqueline MatthewsBy Jacqueline Matthews on Posted in Advertising Class Action, Consumer Class Action
Earlier this week, the Sixth Circuit flatly rejected a bid by a consumer to recover damages allegedly caused by Wish.com’s advertised price comparisons (opinion available here). The online marketplace uses struck-through manufacturers’ suggested retail prices next to products’ purchase prices, which plaintiff Gerboc alleged are misleading and caused him injury when he purchased a pair … Continue Reading

The D.C. Circuit Denies Motion to Stay Issuance of Mandate in Yaakov v. FCC Opt-Out Notification Case, but Petition for Certiorari Looms

Photo of Casie CollignonPhoto of Sammantha TillotsonBy Casie Collignon and Sammantha Tillotson on Posted in Advertising Class Action
On March 31, 2017, the D.C. Circuit entered its ruling in the closely watched Yaakov v. FCC case, holding that the Federal Communications Commission (FCC) had exceeded the authority given to it by Congress when it promulgated a rule requiring that opt-out notices be included in fax advertisements sent with prior permission of the recipient. … Continue Reading

DC Circuit Denies Intervenors’ Petition for Rehearing En Banc After Striking Down FCC Regulations Requiring Opt-out Notifications on Solicited Fax Advertisements

Photo of Casie CollignonPhoto of Sammantha TillotsonBy Casie Collignon and Sammantha Tillotson on Posted in Advertising Class Action
On March 31, 2017, the D.C. Circuit struck down FCC regulations requiring that solicited fax advertisements include opt-out notifications, holding that the TCPA did not grant the FCC the authority to impose such a requirement when, by its express terms, the TCPA applies only to unsolicited fax advertisements. Order, Yaakov v. Federal Communications Commission, No. … Continue Reading

D.C. Circuit May Have Finally Killed TCPA Class Actions Over Solicited Faxes Without Opt-Out Notices!

Photo of Sammantha TillotsonPhoto of Casie CollignonBy Sammantha Tillotson and Casie Collignon on Posted in Advertising Class Action
On Friday, in a split decision, the United States Court of Appeals for the District of Columbia Circuit entered its long-awaited ruling in Yaakov v. Federal Communications Commission, holding that “the FCC’s 2006 Solicited Fax Rule is [] unlawful to the extent that it requires opt-out notices on solicited faxes.” Order, Yaakov v. Federal Communications … Continue Reading

2016 Class Action Year-End Review

Photo of BakerHostetlerBy BakerHostetler on Posted in Advertising Class Action, Antitrust, Class Actions Privacy, Consumer Fraud, Data Breach, Employment
We are pleased to share BakerHostetler’s 2016 Class Action Year-End Review, which offers a summary of key developments in class action litigation during the past year. Class action litigation moved to the forefront of the Supreme Court’s docket in 2016 and promises to remain there in 2017, as class action doctrine continues to evolve in … Continue Reading

Yaakov v. FCC – Will TCPA Opt-Out Requirements Be Stricken for Permissive Faxes?

Photo of Casie CollignonPhoto of Sammantha TillotsonBy Casie Collignon and Sammantha Tillotson on Posted in Advertising Class Action
By its express terms, the Telephone Consumer Protection Act (TCPA) applies only to unsolicited faxes. 47 U.S.C. § 227(b)(1)(C) & (a)(5). However, in May 2006, the FCC promulgated new rules concerning fax advertisement transmissions that stated that “[a] facsimile advertisement . . . sent to a recipient that has provided prior express invitation or permission … Continue Reading

The FTC’s Thoughts on Why “Unlimited Data” Shouldn’t Need Scare Quotes

Photo of James A. ShererBy James A. Sherer on Posted in Advertising Class Action
“Unlimited data” shouldn’t need scare quotes: what recent FTC action may mean for wireless providers, broadband companies, and class action plaintiffs On October 28, 2014, the United States Federal Trade Commission (FTC) sued AT&T’s mobile division in the Northern District of California (F.T.C. v. AT&T Mobility LLC, Case No._ [N.D. Cal., Oct. 28, 2014] “AT&T … Continue Reading

The Ascertainability Requirement Claims Another Class. A Growing Trend?

Photo of Patrick T. LewisBy Patrick T. Lewis and Jonathon Korinko on Posted in Advertising Class Action, Class Certification, Class Definition
A new case, Hernandez v. Chipotle Mexican Grill, Inc., No. CV 12-5543 DSF JCX, 2013 WL 6332002 (C.D. Cal. Dec. 2, 2013), highlights challenges plaintiffs face in certifying classes where membership in the class is difficult or impossible to ascertain based on the defendant’s records. In Hernandez, the plaintiff sought to certify a class of … Continue Reading

When is the Proper Time To Challenge Standing in Class Actions? New Jersey Says To Wait Until Class Certification.

Photo of Casie CollignonBy Casie Collignon on Posted in Advertising Class Action, Rule 12 Motions to Dismiss, Standing
On Monday, a New Jersey federal judge denied a motion to dismiss for lack of standing in a deceptive marketing class action in which the named plaintiffs had not purchased a number of the named products. This decision effectively held that, in a class action, the appropriate time to analyze standing is at the class … Continue Reading

Loreto v. The Procter & Gamble Company: Southern District of Ohio Grants Motion to Strike Class Allegations in Consumer False Advertising Case

By Nicole Skolout on Posted in Advertising Class Action, Class Certification, Consumer Class Action, Rule 23 Requirements
In a significant decision, the Southern District of Ohio granted, in full, the defendant’s motion to strike class allegations in a consumer false advertising class action before any significant discovery had taken place or the plaintiffs filed a motion for class certification.  Loreto v. The Procter & Gamble Company, No. 1:09-cv-815, 2013 U.S. Dist. LEXIS … Continue Reading

New Jersey Judge Certifies TCPA Junk Fax Class

Photo of Julian PerlmanBy Julian Perlman on Posted in Advertising Class Action, Class Certification, Consumer Class Action, TCPA
In a significant decision for companies that engage in electronic marketing, a New Jersey federal judge certified a 23(b)(3) class claiming violations of the Telephone Consumer Protection Act (“TCPA”; 47 U.S.C. § 227(b)(1)(C)). In A&L Industries Inc. v. P. Cipollini Inc., case no. 2:12-cv-07598 in the U.S. District Court for the District of New Jersey, … Continue Reading

Carrera v. Bayer Corporation: Third Circuit Vacates Class Certification Order on Ascertainability Grounds in Consumer False Advertising Case

By Nicole Skolout on Posted in Advertising Class Action, Class Certification
The Third Circuit Circuit’s recent decision in Carrera v. Bayer Corporation, No. 12-2621 (3d Cir. Aug. 21, 2013), could have a significant impact on false advertising class actions involving the purchase of consumer products such as dietary supplements, foods and beverages, and cosmetics, where consumers generally do not save receipts or packaging, and manufacturers do … Continue Reading

Johns v. Bayer Corporation: Southern District of California Dismisses “Lack of Substantiation” False Advertising Class Action

By Nicole Skolout on Posted in Advertising Class Action
In false advertising cases involving a wide range of consumer products, including dietary supplements and cosmetics, plaintiffs often allege that the manufacturer does not have adequate scientific “substantiation” for its advertising claims, rendering those claims false and misleading under state consumer protection laws.  Over the past few years, a strong defense has emerged in these … Continue Reading
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