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Advertising Litigation Report: Vol. 2, No. 2

April 20, 2017

In this issue:

Lanham Act False Advertising

  • Summary Judgment Affirmed for Defendant in Lanham Act Challenge to Statements Concerning Popularity of Advertiser’s Product, Scarcity of Challenger’s Product
  • District Court Adopts Report and Recommendation, Denies Judgment on the Pleadings, in Lanham Act Suit Challenging ‘Same Quality’ Claim
  • Reputational Injury Arising From Unauthorized Use of Likeness May Support Lanham Act Liability
  • Court Rejects Lanham Act Claim Premised on Future Advertising by Nonparties

Consumer Fraud Class Action

  • House Passes Fairness in Class Action Litigation Act of 2017 H.R.985 — 115th Congress
  • Ninth Circuit: Plaintiffs Need Not Prove Administratively Feasible Method of Identifying Class Members to Establish Ascertainability
  • Second Circuit Affirms Denial of Class Certification Where Plaintiff Fails to Establish Administratively Feasible Method of Identifying Class Members
  • Disclaimer Accurately Qualified Ads for Beer
  • Seventh Circuit Rejects Class Alleging That ‘Unnecessarily Large’ Eye Drops Were Premium Priced
  • Ninth Circuit: Consumers Cannot Be Misled Into Believing That Bud Light Lime-A-Rita Is a Low-Calorie Beer

National Advertising Division (NAD) and National Advertising Review Board (NARB)

  • NARB backs NAD’s actions in jurisdictional challenge from Colgate-Palmolive, but recommends ASRC re-examine certain rules in light of “the explosion of consumer class actions”
  • Advertiser to appeal after NAD advises certain claims regarding premium gasoline be discontinued
  • NAD recommends dietary supplement maker modify, discontinue certain claims, modify third-party product review practices
  • NAD cautions advertiser in use of before-and-after photos, recommending discontinuance of claims not supported by underlying studies while finding other uses of photos permissibly ‘aspirational’


  • Negative Option Marketing Enforcement Actions in Federal Court
  • Negative Option Enforcement Action Involving DirecTV Subscriber Contracts Settles on the Morning of Trial
  • Sixth Circuit Declines Review of FTC Adjudication of False Biodegradability Claims
  • Pulley Block Systems Distributor Agrees to Stop Misleading ‘Made in U.S.A.’ Claims

Consumer Privacy and Data Security

  • Judge Trims Proposed Class Action Over Wendy’s Data Breach
  • Winco Foods’ Motion to Dismiss Granted in FCRA-Disclosure Litigation
  • FTC Releases Guidelines for Businesses Targeted by Phishing Scams
  • Neiman Marcus Agrees to $1.6M Settlement in Data Breach Suit
  • Google Email-Scanning Settlement Rejected as ‘Unclear’ and ‘Inadequate’
  • Employee Training Continues to Be a Key Component for Corporate Cyber Health

Related Attorneys
Related Practices
  • Jennifer Manton
  • Kramer Levin
  • 212.715.7612