False Advertising Consumer Class Actions on the Rise

Description

False advertising class suits continue to build. General Mills faces a suit for marketing Cheerios® as beneficial to lowering cholesterol, just weeks after the FDA issued a warning to the company. A similar suit is pending against Coca-Cola for marketing health benefits of its Glaceau Vitaminwater®.

Late last year, the Seventh Circuit decertified the class in a suit against Sears for marketing clothes dryers as stainless steel. Some argue that court’s warning against dangers of multi-state class actions heralds the demise of state law consumer class actions in federal court.

The biggest challenge in obtaining certification is proving the plaintiff class members relied on deceptive advertising statements in deciding to purchase the product. Burden of proof and causation issues also challenge plaintiffs pursuing false advertising class actions.

Listen as our panel of class action attorneys—both plaintiff and defense—discusses current false advertising class action lawsuits, decisions and settlements. The panel will outline strategies for both plaintiff and defense involved in false advertising class certifications and suits.

Outline

1. Recent activity in false advertising class action lawsuits
   1. General Mills Cheerios® case
   2. Coca-Cola Vitaminwater®
   3. Apple iTunes® gift cards
   4. Decertification of Sears Kenmore dryers case
   5. Cigarette cases
2. Plaintiff strategies
   1. Summary judgment proceedings
      1. One-way intervention rule
      2. Ramifications if summary judgment is not granted
   2. Coupon settlements after CAFA
   3. Cy pres settlements
3. Strategies for defending false advertising suits
   1. CAFA removal and Article III’s “injury in fact” requirement (Prohias v. Pfizer, Inc. S.D. Fla. 2007)
   2. Defeating certification
      1. No reliance
      2. No causation
      3. “Continuing use” plaintiffs
   3. Succeeding on merits before certification
   4. Burden of proof
   5. “Puffery” as defense
   6. First Amendment/free speech defense
   7. Discovery strategies
   8. Settlement strategies
   9. Managing negative publicity

Benefits

The panel will review these and other key questions:

• What strategies have served plaintiffs' counsel in pursuing false advertising class certifications and suits?
• What are ways that defense counsel can defeat certification in false advertising cases?
• What are the most effective settlement strategies in false advertising cases?

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