Motion to Dismiss

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a href=”https://www.gtlaw-consumerproductscounselor.com/files/2014/07/shutterstock_153943454.jpg”>GavelAs the Supreme Court has tightened the requirements for certifying a damages class action, some in the plaintiff’s bar have responded by focusing on class actions seeking injunctive relief, particularly in cases against consumer products companies.  To certify a class under Rule 23(b)(2), a plaintiff does not have to demonstrate predominance or superiority, and thus an injunctive class should, at least in theory, be easier to certify.  But a class action seeking injunctive relief has its own challenges, one of which is establishing that the named plaintiff has standing.

Standing to seek an injunction

In the context of a consumer fraud class action, standing can be a particular challenge.  A plaintiff seeking injunctive relief “must demonstrate that he has suffered or is threatened with a ‘concrete and particularized’ legal harm, coupled with ‘a sufficient likelihood that he will again be wronged in a similar way.’” Bates v. United Parcel Serv., Inc., 511 F.3d 974, 985 (9th Cir. 2007). The plaintiff must “establish a ‘real and immediate threat of repeated injury’ ” that “must be likely to be redressed by the prospective injunctive relief.” Id. “Unless the named plaintiffs are themselves entitled to seek injunctive relief, they may not represent a class seeking that relief.” Hodgers–Durgin v. de la Vina, 199 F.3d 1037, 1045 (9th Cir. 1999).  Thus, without a threat of future harm, injunctive relief is not available.
Continue Reading The Injunction Conundrum – When Can a Class Action Plaintiff Sue for Injunctive Relief?

All NaturalIn our February 12, 2014 post, entitled “Consumer Class Actions Trending From Attacking ‘All Natural’ to ‘Raw,’” we addressed whether claims challenging consumer product advertising as “all natural” were preempted…
Continue Reading Court Rejects Preemption and Primary Jurisdiction Arguments in “All Natural” Case

FRSOn February 25, 2014, the U.S. District Court for the Central District of California dismissed a putative class action against supplement maker The FRS Company and its former endorser, cyclist Lance Armstrong, in the case of Martin v. FRS Company, et al., Case No. CV-13-01456-BRO (MANx).  The Plaintiffs, alleged purchasers of FRS products, claimed that Armstrong’s endorsement of FRS and certain FRS slogans like “Secret Weapon” misled consumers into believing that FRS products were “closely associated” with Armstrong’s “legendary” athletic achievements.  Plaintiffs sued on behalf of a putative nationwide class and attempted to state claims for false advertising, unfair competition, violations of California’s Consumer Legal Remedies Act (CLRA) and breach of warranty.  In a 22-page ruling, the Court rejected each of Plaintiffs’ theories and dismissed the case.

As to the false advertising, unfair competition and CLRA claims, the Court ruled that FRS’s slogans amounted to nothing more than non-actionable “puffery,” and that the claims did not meet the heightened pleading standards of Federal Rule of Civil Procedure 9(b), which applied because each claim sounded in alleged fraud.
Continue Reading Former Lance Armstrong Endorsement of Supplement Company FRS Doesn’t Support False Advertising Class Action, Court Rules

As addressed in a separate post on this blog, the Supreme Court’s decision in Symczyk v. Genesis Healthcare Corp., 133 S.Ct. 1523 (2013) and cases since raised the issue of whether a defendant’s unaccepted offer of judgment for complete relief can moot class actions before a class is certified, which in turn raises the issue of whether such cases can be mooted by a full refund.  A recent decision from the Eastern District of California says “yes.”Cash Register

On February 04, 2014, in the case of Luman v. Theismann, 2014 WL 443960 (E.D. Cal. Feb. 4, 2014), the Court granted a motion to dismiss a putative class action alleging false advertising and related claims against NAC Marketing Co. and its endorser, former Washington Redskins quarterback Joe Theismann, because the plaintiffs who had purchased NAC’s product — an allegedly ineffective prostate medication — had received full refunds.  U.S. District Judge Kimberly J. Mueller dismissed the entire action, ruling that the Court lacked subject matter jurisdiction since the plaintiffs’ alleged injuries had been redressed.
Continue Reading Strategy of Offering Refunds to Moot Class Actions Gains Traction

Natural Products

Greenberg Traurig Shareholder Ed Chansky highlights a recent decision dismissing consumer fraud claims alleging a personal care product was mislabeled as “all natural.”  The key aspects of the decision were:…
Continue Reading Hope for Consumer Products Companies Facing ‘Natural’ Class Actions