Advertising Litigation Report: Vol. I, No. 3

In this issue:

Lanham Act False Advertising Cases

• Second Circuit Adopts False Advertising Safe Harbor for Statements Made on FDA-approved Labeling
  Apotex Inc. v. Acorda Therapeutics, Inc., 823 F.3d 51 (2d Cir. 2016)
• Court Dismisses Lanham Act Suit Targeting Better Business Bureau’s Statements About Own Rating System
  Wall & Assocs., Inc. v. Better Bus. Bureau of Central Virginia, No. 16-cv-119, 2016 WL 3087055 (E.D. Va. May 31, 2016)
• Court Enjoins Likely False Exclusive-Formulation Statement
  Simone v. VSL Pharm., Inc., No. TDC-15-1356, 2016 WL 3466033 (D. Md. June 20, 2016)
• Food Certification Organization’s Email to Grocery Stores Enjoined as Commercial Speech
  Handsome Brook Farm, LLC v. Humane Farm Animal Care, Inc., --- F. Supp. 3d ---, No.16-cv-592, 2016 WL 3348431 (E.D. Va. June 15, 2016) 

Consumer Fraud Class Action Developments 

• Plaintiffs Failed to Show Their Evidence of Loss Was Representative
  Dicuio v. Brother Int’l Corp., No. 15-2548, 2016 WL 3545552 (3d Cir. June 29, 2016) (unpublished)
• Class Certification Denied in Common Defect Case Where Individual Issues Predominated
  Romig v. Pella Corp., No. 2:14-cv-00433 2016 WL 3125472 (D.S.C. June 3, 2016)
• Class Claims Mooted by Accepted Offer of Judgment
  Montgomery v. Kraft Foods Global, Inc., 822 F.3d 304 (6th Cir. 2016)
• Disclaimer Neutralized Alleged False Advertising
  Zito v. United Technologies Corp., No. 3:15-cv-00744, 2016 WL 2946157 (D. Conn. Mar. 11, 2016)
• Investigation Could Not Support Plaintiff’s Allegations on ‘Information and Belief’
  Nunez v. Best Buy, Inc., No. 15-cv-03965, 2016 WL 3189197 (D. Minn. June 7, 2016)
• Bare Violation of Statute May Be Insufficient to Confer Article III Standing to Bring Class Action Claims
  Spokeo v. Robins, No. 13-1339, 578 U.S.___, 136 S. Ct. 1540 (2016)
• Second Circuit: Commonality Not Met Where Plaintiff Failed to Establish a Uniform Representation
  Garrido v. Money Store, No. 15-1891, 2016 WL 2956914 (2d Cir. May 23, 2016) (summary order)
• Premium Price Alone Cannot Constitute Misrepresentation
  Parent v. MillerCoors LLC, No. 3:15-cv-01204, 2016 WL 3348818 (S.D. Cal. June 16, 2016)
• Individual Understandings of Allegedly Deceptive Product Name Destroyed Predominance
  Pierce-Nunes v. Toshiba Am. Info. Sys., No. CV 14-7242-DMG (KSx) (ECF No. 205) (C.D. Cal. June 23, 2016)

National Advertising Division (NAD) Update

• SharkNinja Operating, LLC (Shark Rotator Powered Lift-Away and Shark Rocket Powerhead Vacuum Cleaners), NAD Case No. 5948 (Apr. 25, 2016)
• Intraceuticals LLC (Atoxelene Skin Care Products), NAD Case No. 5953 (May 12, 2016)
• Applegate Insulation (Cellulose Insulation Products), NAD Case No. 5961 (June 3, 2016)
• Verizon Communications, Inc. (FiOS), NAD Case No. 5886, NARB Case No. 209 (Apr. 11, 2016)
• The Clorox Company (Glad Tall Kitchen Drawstring Bags), NAD Case No. 5951 (May 10, 2016)
• Joyus, Inc. (Dr. Brandt’s Needles No More Wrinkle Relaxing Cream), NAD Case No. 5956 (May 19, 2016)
• Sprint Corporation (Advertising by Sprint Corporation), NAD Case No. 5958 (May 20, 2016)'

Regulatory Developments

• Warner Bros. Settles FTC Allegations Concerning Failure to Disclose Use of Online “Influencers” to Market Video Game
  In the Matter of Warner Bros. Home Entertainment, Inc., No. 152 3034 (Order Entered July 11, 2016)
• Volkswagen Settles “Clean Diesel” Charges to the Tune of $14.7 Billion
  FTC v. Volkswagen Group of America, Inc., No. 3:16-cv-1534 (N.D. Cal.)
• FDA Declares Label “Evaporated Cane Juice” False and Misleading in New Guidance

Consumer Privacy and Data Security

• PayPal Settles Texas State Attorney General’s Charges That Venmo Users’ Contact Lists Were Misused and Private Information Inadvertently Disclosed
  In the Matter of State of Texas and PayPal, Inc. (Tex. Dist. Ct. May 2016)
• California Appeals Court Finds Federal Airline Deregulation Act Preempts CalOPPA in Fly Delta Mobile App Case
  People ex rel. Harris v. Delta, 247 Cal. App. 4th 884 (Cal. Ct. App., 1st Dist. 2016)
• Florida District Court Dismisses Wendy’s Data Breach Class Action for Lack of Standing
  Torres v. The Wendy’s Co., No. 6:16-cv-00210 (M.D. Fla. July 15, 2016)
• InMobi Settles FTC Charges That Geo-Tracking Advertising Software Collected Consumer and Children’s Private Information in Violation of Federal Law
  United States v. InMobi PTE Ltd., No. 16-cv-03474 (N.D. Cal. June 22, 2016)
• Third Circuit Dismisses Bulk of Federal and State Claims Against Viacom for Collecting and Sharing Information About Children’s Internet Activities
  In re: Nickelodeon Consumer Privacy Litig., --- F.3d ---, No. 15-1441, 2016 WL 3513782 (3d Cir. June 27, 2016)
• Applying Spokeo, Missouri Federal District Court Judge Dismisses Complaint Against Scottrade Alleging Injuries Suffered From a Hack of the Company’s Confidential Customer Information
  Duqum, et al. v. Scottrade, Inc., No. 4:15-cv-1537-SPM (E.D. Mo. July 12, 2016)
• Applying Spokeo, Wisconsin Federal District Court Judge Dismisses Time Warner Cable Personal Information Collection Case
  Gubala v. Time Warner Cable, No. 15-1078 (E.D. Wis. June 17, 2016)