Hunton Retail Law Resource

Virginia is currently one of just two states, along with Mississippi, without state-court class actions. But in the most recent legislative session, the General Assembly passed Senate Bill 259, which would create a class action mechanism in Virginia state courts. Under Virginia law, the governor can sign the bill, veto it, do nothing (which permits it to become law)—or he can propose amendments to the bill, which would then be sent back to the General Assembly at the “veto session” in April. The governor could veto the bill—or, in the alternative, he could propose an amendment to protect Virginia businesses from the threat of outrageous statutory damages claims under the Virginia Consumer Protection Act.

In recent years, consumers filed a spate of class actions claiming that retailers misrepresented the retail price on discounted goods to mislead consumers into thinking they were obtaining a bargain. Many of those cases settled or were dismissed for lack of injury because plaintiffs failed to allege that the purchased item was deficient in an objectively identifiable way.

On February 10, 2023, an Illinois federal district court ordered the dismissal of a putative class action lawsuit alleging that an online tool that allowed users to virtually try on sunglasses violated the Illinois Biometric Privacy Act (“BIPA”).

As recently reported on our firm's Insurance Recovery Blog, the Northern District Court of Illinois reaffirmed the bedrock principle that an insurer’s duty to defend is broad and triggered by any allegations in a complaint that potentially fall within a policy’s coverage grant.  In Harleysville Pref. Ins. Co. v. Dude Products Inc., et. al., Case No. 21-c-5249 (N.D. Ill. Dec. 21, 2022), the insured, Dude Products, Inc., sought coverage from its insurer, Harleysville Preferred Insurance Company, against a class action lawsuit that alleged Dude Products intentionally and ...

On January 3, 2023, an Illinois state court entered a preliminary approval order for a settlement of nearly $300,000 in a class action lawsuit against Whole Foods for claims that the company violated the Illinois Biometric Information Privacy Act (“BIPA”). The plaintiffs alleged that Whole Foods unlawfully collected voiceprints from employees who worked at the company’s distribution centers.

Plaintiff’s firms continue to file variations of state law wiretapping lawsuits over “session replay” software and “live chat” or “chatbot” applications in various jurisdictions. These filings typically allege that companies use such software tools to record users’ interactions with a website without first obtaining users’ consent, thereby violating the wiretapping, eavesdropping, or interception provisions of various state laws. Session replay software allows companies to record and play back users’ interactions on its websites. The “live chat” or “chatbot” feature allows a website user to engage in text conversations with an assistant, to which the company has access. These wiretapping claims threaten substantial penalties. Companies that use these web-tracking tools, however, can take steps to protect themselves from these lawsuits by a careful examination of the software being used and by evaluating what disclosures or consents may be warranted.

On February 14, 2022, Noom Inc., a popular weight loss and fitness app, agreed to pay $56 million, and provide an additional $6 million in subscription credits to settle a putative class action in New York federal court. The class is seeking conditional certification and has urged the court to preliminarily approve the settlement.

The Second Circuit just affirmed the dismissal of a data breach class action predicated on an alleged increased risk of identity theft on Article III standing grounds.  McMorris v. Carlos Lopez & Assocs., LLC, No. 19-4310, 2021 WL 1603808 (2d Cir. Apr. 26, 2021).  Notably, the district court that dismissed the action raised the issue of standing sua sponte in advance of a scheduled class settlement fairness hearing.

On October 15, 2020, the United States District Court for the Southern District of Texas granted conditional certification to a class of assistant managers (“AM”s) in 550 wireless retail stores across the country. In Martinez v. Mobilelink, assistant store managers in the wireless retailers’ stores alleged that they were regularly required to work unpaid overtime. The employees sought to certify a class consisting of all current and former AMs employed by Mobilelink from March 2017 through the present.

Two putative class actions recently filed in the Northern District of California—Ambrose v. Kroger Co. and Nguyen v. Amazon.com, Inc. —preview a new theory of consumer claims relating to per- and polyfluoroalkyl substances (PFAS). Rather than rely on alleged omissions or representations about health risks, the plaintiffs claim that they relied on marketing statements that indicated the products they purchased (“compostable” disposable dinnerware) were disposable and would completely degrade over time and that the presence of PFAS in the products means those marketing statements were false. That focus on the environmental persistence of PFAS, rather than the substances’ alleged health effects, marks a new approach to PFAS consumer class actions.

In a favorable decision for retailers, a California federal court judge scaled back a proposed class action seeking to bring nationwide class claims. Plaintiff Todd Carpenter alleged that he bought a rodent habitat at a California PetSmart and that the habitat was defective in such a way that his rodents were able to chew through and escape. He filed a class action in the US District Court for the Southern District of California for violations of California consumer protection laws, violation of the Magnuson-Moss Warranty Act, and common law fraud. The plaintiff sought to represent a nationwide class consisting of all purchasers of the rodent habitat along with a California subclass. PetSmart moved to strike the nationwide class on the grounds that the court lacked personal jurisdiction over PetSmart with respect to the nationwide class.

Innovation and developments in technology bring both opportunities and challenges for the retail industry, and Hunton Andrews Kurth has a sophisticated understanding of these issues and how they affect retailers. On January 23, 2020, our cross-disciplinary retail team, composed of over 200 lawyers, released our annual Retail Industry Year in Review. The 2019 edition, Spotlight on Technology, provides an overview and analysis of recent developments impacting retailers, as well as what to expect in 2020 and beyond. Topics discussed include: braille gift cards as the next wave of ...

For the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA). Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.^[1] Of these cases, a total of 1,564—over 69 percent—were filed in New York federal courts by just a handful of lawyers, including Jeffrey Gottlieb, Bradley Marks, C.K. Lee, Joseph Mizrahi, Jonathan Shalom and Doug Lipsky, with a surge following two unsuccessful motions to dismiss in cases involving Five Guys and Blick Art.

The Federal Trade Commission has stepped up enforcement of the Consumer Review Fairness Act of 2016 (CRFA) which prohibits companies from barring honest consumer reviews of their products and services. While enforcement of the CRFA was initially slow, that changed this year.

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Illinois Supreme Court Says Biometric-Data Protection Law Does Not Require Allegation of Actual Injury

As reported on Hunton Andrews Kurth’s Privacy & Information Security Law Blog on January 25, 2019, the Illinois Supreme Court ruled that an allegation of “actual injury or adverse effect” is not required to establish standing to sue under the Illinois Biometric Information Privacy Act.

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On January 17, 2019, Hunton Andrews Kurth’s retail industry team, composed of more than 200 lawyers across practices, released their annual Retail Industry Year in Review publication.

The 2018 Retail Industry Year in Review includes many topics of interest to retailers, including the use of artificial intelligence (AI), ITC investigations, product recall insurance, antitrust enforcement in the Trump Administration, the collection and storage of biometric data, consumer privacy, SEC and M&A activity in 2018, the #MeToo movement and the impact of cashierless stores.

This past week, several consumer actions made headlines that affect the retail industry.

“Black Truffle Flavored Extra Virgin Olive Oil” Case Dismissed Against Trader Joe’s

On August 30, 2018, the Southern District of New York dismissed class action claims for consumers who purchased Trader Joe’s “Black Truffle Flavored Extra Virgin Olive Oil.” The complaint alleged that the product label contained the words “black truffle” in large black letters, with the words “flavored” and “extra virgin olive oil” in smaller cursive letters underneath. However, DNA testing revealed that the oil did not contain actual truffle, but rather 2,4-dithiapentane, a petroleum-based synthetic injection that imitates the taste and smell of truffles.

Consumer lawsuits under the Telephone Consumer Protection Act (“TCPA”) have surged following a 2015 declaratory order from the Federal Communications Commission (“FCC”), which included an expansive interpretation from the FCC of what constitutes an “automatic telephone dialing system” (“ATDS”). The D.C. Circuit’s much-awaited decision in ACA International v. Federal Communications Commission, 885 F.3d 687 (D.C. Cir. 2018) earlier this year set aside much of the FCC’s prior interpretation of what qualifies as an ATDS. ACA International was widely seen as a win for businesses and advertisers, but the decision has done little thus far to stem the tide of TCPA lawsuits, especially as the scope of the decision continues to play out.

This past week, several consumer actions made headlines that affect the retail industry.

District Judge Boots Putative Class Action Against L.L. Bean

A federal district judge has dismissed an attempted class action against L.L. Bean involving the company’s long-standing no-questions-asked warranty policy. In February 2018, L.L. Bean announced that it was changing its policy to limit customers’ return period to one year, while committing to “work with our customers to reach a fair solution” if a problem arises more than a year after purchase. The plaintiff alleged that changing the warranty violated both the Magnusson-Moss Act and Illinois state law as an anticipatory repudiation of the guarantee. But the District Judge ruled that plaintiff neither alleged an injury nor had he stated a claim for which relief could be granted.

On June 11, 2018, the United States Supreme Court ruled that American Pipe tolling does not extend to follow-on class actions brought after the statute of limitations period has run. This decision resolves a split between circuit courts over the question of whether a putative class member can rely on American Pipe to toll applicable statute of limitations to file a new class action in lieu of promptly joining an existing suit or filing an individual action. The Court held that “American Pipe tolls the statutes of limitations during the pendency of a putative class action, allowing unnamed class members to join the action individually or file individual claims. But American Pipe does not permit the maintenance of a follow-on class action past expiration of the statute of limitations.” China Agritech, Inc. v. Resh, --- S. Ct. ---, 2018 WL 2767565, at *3 (2018). 

In a major win for employers, the U.S. Supreme Court held that arbitration agreements with class action waivers do not violate the National Labor Relations Act (“NLRA”). As reported on the Hunton Employment & Labor Perspectives Blog, the Supreme Court’s narrow 5-4 decision paves the way for employers to include such waivers in arbitration agreements to avoid class and collective actions.

As reported on Hunton's Employment & Labor Perspectives blog, the U.S. Supreme Court has voted to hear an appeal of the Ninth Circuit’s decision in Varela v. Lamps Plus, Inc. The Supreme Court is expected to decide whether workers can pursue their claims through class-wide arbitration when the underlying arbitration agreement is silent on the issue. The case could have wide-reaching consequences for employers who use arbitration agreements.

The California Supreme Court has adopted a new three-part test to determine whether a worker is an independent contractor or an employee under California’s wage orders, which regulate wages, hours and working conditions. The highly anticipated ruling could have wide-ranging effects for businesses operating in California and beyond, as companies try to navigate the new gig economy.

Since the United States Supreme Court’s decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014)—and particularly in light of the Court’s more recent decisions in Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773 (2017) and BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017)—courts across the country have applied a more exacting standard for assessing whether defendants can be subject to general personal jurisdiction in a particular forum. Under this standard, a plaintiff must demonstrate that the defendant’s contacts with the forum are so continuous and systematic as to render it “essentially at home” there. In most instances, a company is “essentially at home” only in the state where it is incorporated and the state where it operates its principal place of business. This has been a largely positive result for companies in the retail product industry that may have strategic incentive to avoid becoming subject to “all purpose” general personal jurisdiction in each state in which their products are sold.

The tidal wave of New Jersey Truth-in-Consumer Contract, Notice and Warranty Act (“TCCWNA”) cases may finally slow to a trickle: a long-awaited decision from the New Jersey Supreme Court came down Monday, April 16, 2018, that will likely have broad repercussions on who has standing to sue under the statute.

As reported on the Hunton Privacy & Information Security Law Blog, on March 8, 2018, the Ninth Circuit Court of Appeals (“Ninth Circuit”) reversed a decision from the United States District Court for the District of Nevada. The trial court found that one subclass of plaintiffs in In re Zappos.Com, Inc. Customer Data Security Breach Litigation had not sufficiently alleged injury in fact to establish Article III standing. The opinion focused on consumers who did not allege that any fraudulent charges had been made using their identities, despite hackers accessing their names, account numbers, passwords, email addresses, billing and shipping addresses, telephone numbers, and credit and debit card information in a 2012 data breach. 

On February 15, 2018, by a vote of 225 to 192, the House of Representatives passed the ADA Education and Reform Act (HR 620). Title III of the Americans with Disabilities Act (“ADA”) was enacted to ensure access for persons with disabilities to public accommodations. Too often, however, serial litigants have abused Title III to shake down businesses for quick settlements over minor, technical violations without actually seeking to improve access. By amending the ADA to include a notice and cure provision, proponents of HR 620 say this bill will curb predatory public accommodations lawsuits brought by serial plaintiffs and their lawyers against businesses. 

Two recent decisions out of California—one in state court and one in federal—provide defendants new ammunition for defeating class certification. The Ninth Circuit’s decision in In re Hyundai & Kia Fuel Economy Litigation and the Fourth District Court of Appeal’s decision in Apple Inc. v. Superior Court have important implications for California retailers opposing class certification. But Hyundai also poses challenges to retailers looking to settle class claims on a nationwide basis.

On January 18, 2018, Hunton & Williams LLP’s retail industry lawyers, composed of more than 100 lawyers across practices, released their annual Retail Year in Review publication. The Retail Year in Review includes many topics of interest to retailers including blockchain, antitrust enforcement in the Trump Administration, ransomware's impact on the retail industry, SEC and M&A activity in 2017, cyber insurance, vulnerability to class actions, and the reduced tax rate.

Read the full publication.

This past week, several consumer actions made headlines that affect the retail industry.

Hilton Reaches $700,000 Settlement with New York and Vermont Over Data Breaches

The Attorney Generals of New York and Vermont announced a $700,000 settlement with Hilton Domestic Operating Company, Inc., formerly Hilton Worldwide, Inc. (“Hilton”), over two data breaches in 2014 and 2015.

Hilton was notified in February 2015 that it had likely suffered a data breach in December of 2014. In July of 2015, Hilton was notified of a second data breach from the prior three months. Hilton did not provide notice of either data breach until November 24, 2015. New York law requires that businesses provide notice in the “most expedient time possible and without unreasonable delay.” Vermont requires that businesses provide notice of data breaches to the Vermont Attorney General within 14 days of discovery, and within 45 days of discovery to consumers.

Under the terms of the settlements, Hilton has agreed to pay New York $400,000 and Vermont $300,000 and to comply with certain behavior remedies related to their notification and security procedures.

October ushered in a case that might, on one hand, provoke a sigh of relief for manufacturers, distributors and retailers concerned about the upward trend in multimillion dollar civil penalties from the CPSC or, on the other hand, raise some eyebrows of concern about the extent of a court’s authority to prospectively impose auditing, compliance and training measures. See United States v. Spectrum Brands, Inc., No. 15-CV-371-WMC, 2017 WL 4339677 (W.D. Wis. Sept. 29, 2017).

This past week, several consumer actions made headlines that affect the retail industry.

Dona J. Fraser Appointed Director of CARU

The Advertising Self-Regulatory Council and Council of Better Business Bureaus announced that Dona J. Fraser was appointed as Director of the Children’s Advertising Review Unit (“CARU”). Fraser is a leading privacy expert who previously worked for the Entertainment Software Rating Board, a self-regulatory program for the video game industry. CARU is an ASRC program dedicated to monitoring child-directed advertising since 1974.

With the National Retail Foundation estimating 8 to 12 percent growth in U.S. e-commerce in 2017, retailers across the country are vying to compete for a piece of the $400B+ pie. Crucial to their efforts is that retailers offer a seamless online and in-home customer experience, which includes maximizing shipping and returns efficiencies. But equally as important is that retailers remain compliant with FTC regulations and state unfair competition and business practices laws, in order to minimize their exposure to an ever-expanding putative class of the 80 percent of Americans who place online orders each year.

In that vein, we have previously reported and advised on the rise in ADA and TCCWNA claims in 2015 and 2016. Now, over the past few months, a new trend has emerged that has ramifications for virtually every participant in the online retail space: a rise in the number of class action claims challenging allegedly excessive shipping & handling (“S&H”) fees. Regardless whether an online retailer offers flat or incremental S&H fees, standard and expedited S&H options or free shipping with returns-only S&H fees, few are immune from claims that the fees charged do not align perfectly with retailers’ underlying shipping costs.

On July 10, 2017, in a 775-page release, the Consumer Financial Protection Bureau (“CFPB”) issued its long-awaited final arbitration rule (“Arbitration Rule”) pertaining to consumer finance contracts. The Arbitration Rule, which until now was in the comment stage with its final issuance in question, largely mirrors the proposed rule from May 2016, with a few modifications. The Arbitration Rule is important for three reasons: (1) it prohibits consumer finance companies from relying on class action waivers to block class action lawsuits; (2) it prohibits the inclusion ...

On July 11, 2017, the Consumer Financial Protection Bureau (“CFPB”) adopted a final rule that bars financial firms from forcing consumers into mandatory arbitration clauses as a condition of opening an account.

On June 13, 2017, Judge Andrea R. Wood of the Northern District of Illinois dismissed with prejudice a putative consumer class action filed against Barnes & Noble. The case was first filed after Barnes & Noble’s September 2012 announcement that “skimmers” had tampered with PIN pad terminals in 63 of its stores and exposed payment card information. The court had previously dismissed the plaintiffs’ original complaint without prejudice for failure to establish Article III standing. After the Seventh Circuit’s decision in Remijas v. Neiman Marcus Group, the plaintiffs filed an almost identical amended complaint that alleged the same causes of action and virtually identical facts. Although the court found that the first amended complaint sufficiently alleged Article III standing, the plaintiffs nevertheless failed to plead a viable claim. The court therefore dismissed the first amended complaint under Rule 12(b)(6). 

On June 19, 2017, the United States Supreme Court announced important constitutional limitations on state courts’ ability to exercise specific jurisdiction over nonresidents’ claims against out-of-state defendants. The Court’s nearly unanimous decision in Bristol-Myers v. Superior Court, 582 U.S. (2017) has potentially far-reaching implications for companies facing claims brought by nonresident and resident plaintiffs in states in which those companies are neither incorporated nor maintain their principal place of business. In holding that mere joinder of nonresident plaintiffs’ claims with those of resident plaintiffs does not permit a state court to exercise specific jurisdiction over an out-of-state defendant, the Court’s decision is the latest in a trend of important personal jurisdiction decisions rendered by the high court in recent years which provide companies with significant constitutional protections in terms of where plaintiffs may force companies to litigate.

This past week, several consumer actions took place that affect the retail industry.

Trader Joe’s Catches a Winner in Tuna Can Underfilling Litigation

A California judge has granted Trader Joe’s motion to dismiss in the case In re: Trader Joe’s Tuna Litigation, 2:16-cv-01371, in the U.S. District Court for the Central District of California, where plaintiffs had alleged fraud, breach of warranty and other claims for the company’s alleged underfilling of its cans of tuna as prescribed by the U.S. Food and Drug Administration.

According to the court’s order, plaintiffs improperly made claims under the Federal Food, Drug and Cosmetic Act, which does not allow for a private right of action.

“Consequently, the theory underlying plaintiffs’ state law claims depends entirely on an FDA regulation,” the court wrote. “Plaintiffs’ state law claims are in reality claims violations of an FDA regulation, and therefore, the FDCA prohibits plaintiffs from bringing them.”

This case was a consolidation of a number of similar cases filed in California, Illinois and New York. The court’s order does give plaintiffs a month to amend their lawsuit should they wish to refile.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Jumps to Consumers' Defense in Trampoline Marketing Deception

On May 31, 2017, brothers Son Le and Bao Le agreed to settle FTC charges that their trampoline marketing deceived consumers by directing them to review websites that were not, but claimed to be, independent, and by failing to disclose financial interests when posting online product endorsements. The Le brothers created fictitious trampoline experts, including "Trampoline Safety of America" and the "Bureau of Trampoline Review," and built fake websites with fake expert reviews to induce customers to buy their trampolines. The administrative consent order prevents the Le brothers from engaging in such deceptive behavior and requires clear and conspicuous disclosure of any material connections between the reviewer and the product. 

On May 26, 2017, Alcoa Community Federal Credit Union (“Alcoa”), on behalf of itself, credit unions, banks and other financial institutions, filed a nationwide class action against Chipotle Mexican Grill, Inc. (“Chipotle”). The case arises from a breach of customer payment card data. The putative class consists of all such financial institutions that issued payment cards, or were involved with card-issuing services, for customers who made purchases at Chipotle from March 1, 2017, to the present. Plaintiffs allege a number of “inadequate data security measures,” including Chipotle’s decision not to implement EMV technology. 

This past week, several consumer protection actions made headlines that affect the retail industry.

NAD Recommends Kauai Coffee Discontinue and Modify Compost Claims

This week, NAD released their recommendations in their review of Kauai Coffee’s environmental claims for their single-serve coffee pod products. Kauai Coffee’s ads claim that the pods are “100% compostable,” but fail to clearly disclose that the pods are certified compostable only in industrial composting facilities, and are not suitable for home composting. While the pods are certified compostable by the Biodegradable Products Institute (“BPI”), BPI specified in its certification of the pods that they will disintegrate “swiftly and safely in a professionally managed composting facility.” NAD recommended that Kauai Coffee discontinue certain claims, and modify others to include the qualifying language: “Compostable in industrial facilities. Check locally, as these do not exist in many communities. Not certified for backyard composting.” Kauai Coffee said it will comply with NAD’s recommendations.

On May 2, 2017, the United States Court of Appeals for the Second Circuit issued a summary order affirming dismissal of a putative data breach class action against Michaels Stores, Inc. (“Michaels”). The plaintiff’s injury theories were as follows: (1) the plaintiff’s credit card information was stolen and twice used to attempt fraudulent purchases; (2) the risk of future identity fraud and (3) lost time and money resolving the attempted fraudulent charges and monitoring credit. The plaintiff, however, quickly cancelled her card after learning of the unauthorized charges and did not allege that she was held responsible for any of those charges.

On April 18, 2017, the state of Washington passed House Bill 1493 (“HB 1493”), which sets forth requirements for businesses who collect and use biometric identifiers for commercial purposes. Under HB 1493, a biometric identifier includes a fingerprint, voiceprint, retina, iris or other unique biological pattern or characteristic used to identify a specific individual. Commercial use includes “a purpose in furtherance of the sale or disclosure to a third party for the purpose of marketing of goods or services when such goods or services are unrelated to the initial transaction in which a person first gains possession of an individual’s biometric identifier.” This bill comes after several other states have passed similar legislation regulating the commercial use of biometric identifiers, including the Illinois Biometric Information Privacy Act (740 ILCS 14) (“BIPA”) and the Texas Statute on the Capture or Use of Biometric Identifier (Tex. Bus. & Com. Code Ann. §503.001). 

This past week, several consumer actions made headlines that affect the retail industry.

NARB Permits Unilever’s Challenge of Colgate Palmolive’s Tom’s of Maine “Natural” Claims

The National Advertising Review Board (“NARB”), the appellate body of the advertising industry’s self-regulation system, upheld Unilever’s challenge regarding the truthfulness of Colgate Palmolive’s claims for Tom’s of Maine antiperspirant, despite the fact that the challenged claims were the subject of a court-ordered settlement in class action litigation. Unilever had challenged claims that Tom’s is “Naturally Dry,” “It really works. Naturally,” and “meets our stewardship model for safe, effective and natural” before the NAD. Colgate argued that the challenge should be dismissed based on NAD procedures for providing closure where the challenged claims are subject to pending litigation. The NARB found that the settlement order did not make any findings with respect to the claims challenged by Unilever, and that NAD’s exercise of jurisdiction posed no danger of conflicting court findings.

On March 17, 2017, retailer Neiman Marcus agreed to pay $1.6 million as part of a proposed settlement (the “Settlement”) to a consumer class action lawsuit stemming from a 2013 data breach that allegedly compromised the credit card data of approximately 350,000 customers.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Settles Claim Against LA Car Dealership Group for $3.6 Million

The FTC has settled a claim brought against a group of nine auto dealerships and their corporate owners for over $3.6 million. According to the complaint, Sage Auto Group engaged in unfair and deceptive practices, as well as violations of the Truth in Lending Act and Consumer Leasing Act.

The FTC alleged that Sage targeted consumers with poor credit or who would otherwise have difficultly acquiring financing, frequently omitting or concealing material terms in ads. The FTC also alleged that Sage deceptively posted falsified positive consumer reviews to combat overwhelmingly negative reviews on social media websites.

As reported on the Hunton Employment & Labor Law Perspectives blog, the United States Supreme Court has granted consolidated review of three cases to determine whether arbitration agreements that waive employees’ rights to participate in a class action lawsuit against their employer are unlawful. The Court’s decision to address the uncertainty surrounding class action waivers of employment claims follows a circuit split last year in which the Fifth and Eighth circuits upheld such waivers and the Seventh and Ninth circuits found that such waivers violate the National Labor Relations Act (“NLRA”). Given the increasingly widespread use of class action waivers by employers to stem costly class and collective actions, the high court’s ruling is likely to have a significant nationwide impact.

On March 9, 2017, Home Depot Inc. (“Home Depot”) reached an agreement that includes the payment of $25 million and the implementation of new data security measures to resolve a putative class action brought by financial institutions impacted by the company’s 2014 data breach.

This past week, several consumer actions made headlines that affect the retail industry.

FTC Issues Business Guidance under Consumer Review Fairness Act

On February 21, 2017, the FTC issued guidance to help businesses comply with the Consumer Review Fairness Act. Signed into law in December 2016, the Act is aimed at protecting consumers’ right to share honest opinions about a product or service in any forum. The FTC's guidance stresses that it’s illegal for companies to include standardized provisions that threaten or penalize people for posting honest reviews, while protecting companies’ rights to prohibit or remove reviews that contain confidential or private information, are libelous, abusive, vulgar or inappropriate, are irrelevant or are clearly false or misleading.

This past week, several consumer actions made headlines that affect the retail industry.

Litigation Bubbles Up Over Wal-Mart Beer Claims

Wal-Mart was sued in Ohio last week in a proposed class action, alleging that the company falsely marketed and priced mass-produced beer as craft beer. The plaintiff explains that he bought a 12-pack of beer that was packaged to look like craft beer, and sold at a higher price point than other mass-produced beers. In order to be called a craft beer, the Brewers Association requires that the brewery make fewer than 6 million barrels annually and be less than 25 percent owned by a mass producer. Wal-Mart’s beer is a part of a collaboration with Trouble Brewing, which the complaint alleges does not exist but is a subset of a large mass beer producer.

This past week, several consumer actions made headlines that affect the retail industry.

NAD Clears “Clinically Proven” Jelly Belly Sports Beans, Recommends Against Formulation Claims

The National Advertising Division (“NAD”) found that Jelly Belly could support claims that its Sports Bean Energizing Jelly Beans are “clinically proven” to maximize sports performance, but cautioned the company to nix its claims that the beans are “Scientifically Formulated to Maximize Sports Performance.” Although the NAD expressed some hesitations about study methodology, it found that Jelly Belly’s clinically proven claims were supported by a published clinical study. However, after reviewing the Sports Beans’ ingredients, including electrolytes, carbohydrates, Vitamin C and Vitamins B1-B3, and the evidence Jelly Belly provided demonstrating the role of these ingredients in providing energy during intense exercise, the NAD advised the advertiser to abandon its formulation claim. The NAD noted that Jelly Belly failed to offer any studies indicating how the beans would demonstrably maximize sports performance. Jelly Belly responded by stating that it will comply with the NAD’s recommendation.

This past week, several consumer actions made headlines that affect the retail industry.

The Federal Trade Commission Announced Class Action Settlement of VW 3.0-Liter Claims

The FTC announced a settlement with Volkswagen Group of America (“VW”) requiring VW to fully compensate consumers who purchased its 3.0-liter TDI diesel vehicles. The settlement stems from VW’s installation of emissions defeat devices in its diesel TDI vehicles that deceived consumers and emissions testers. The settlement package requires a combination of repairs, monetary compensation and buyback of certain models. It is estimated that VW will pay at least $1 billion under the settlement but could pay as much as $4 billion if it is unable to provide consumers with an adequate emissions repair. The FTC previously obtained a separate $10 billion judgment against VW to compensate consumer who purchased 2.0-liter TDI diesel vehicles with the defeat device.

This past week, several consumer actions made headlines that affect the retail industry.

Chairwoman Ramirez Announces Resignation

FTC Chairwoman Edith Ramirez announced that she will resign effective February 10, 2017. Chairwoman Ramirez joined the FTC on April 5, 2010, and has headed the agency since March 4, 2013. During her tenure as Chairwoman, the FTC brought close to 400 consumer protection action and approximately 100 challenges to mergers and business conduct.

On January 13, 2017, the United States Supreme Court agreed to resolve the question of whether class action waivers in the employment context violate the National Labor Relations Act (“NLRA”). The decision will have far-reaching consequences for retailers who include such waivers in employee arbitration agreements in an effort to limit class action exposure. 

This past week, several consumer actions made headlines that affect the retail industry.

New Suit Claims Coca-Cola Falsely Advertised Health Effects of Sugary Drinks

On January 4, 2017, the Praxis Project, a non-profit health organization, sued Coca-Cola, claiming the beverage conglomerate misled the public as to the negative health effects of its sodas. The suit alleges that Coca-Cola peddled industry-supported research deflecting focus from sugary drinks to balancing a healthy lifestyle with more physical activity and argues that Coca-Cola’s marketing created the impression that sugary drinks are not linked to obesity, type 2 diabetes and cardiovascular diseases. The lawsuit seeks an injunction to stop the advertising practices, to require disclosure of all research on the impact of sugary drinks and to require a corrective public education campaign to reduce public consumption of sugary drinks.

On January 3, 2017, a Ninth Circuit panel (the “panel”) weighed in on a growing split among circuits over Rule 23’s ascertainability requirement—in particular, the extent to which a plaintiff must prove there is an “administratively feasible” means of identifying class members.

The American Tort Reform Association recently released the 2016–2017 edition of its “Judicial Hellholes” report. This annual report identifies venues it deems least favorable for civil defendants based on recent decisions and verdicts, as well as state laws and policies.

In August 2016, the Supreme Court of California issued its decision in Bristol-Myers Squibb v. Superior Court, which – as detailed more fully in our earlier post – features an expansive interpretation of specific personal jurisdiction that is difficult to reconcile with the U.S. Supreme Court’s general personal jurisdiction decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, 131 S. Ct. 2846 (2011) and Daimler AG v. Bauman, 134 S. Ct. 746 (2014). Those decisions significantly limited the exercise of general personal jurisdiction over defendant corporations to their state of incorporation and principal place of business unless “exceptional circumstances” exist. 

This past week, several consumer and self-regulatory actions made headlines that affect the retail industry.

Court Dismisses ‘Made in USA’ Claims against Citizens of Humanity

A California federal judge dismissed claims against Citizens of Humanity alleging that it falsely labeled its products as “Made in the USA.” While plaintiffs alleged that the fabric, thread, buttons and other components were foreign-made, the court found that this was not enough to satisfy California’s standard, allowing the use of “Made in the USA” labels on products containing 5 to 10 percent of foreign materials. Significantly, the court applied the 5 to 10 percent standard found in the California rule despite the fact that the products at issue had been purchased prior to the rule’s enactments. The court also dismissed claims under the Unfair Competition Law and California Legal Remedies Act, finding that the plaintiffs failed to plead with particularity. 

This past week, several regulatory, self-regulatory and consumer actions made headlines that affect the retail industry.

Regulatory Actions: FTC

FTC Drives Home Privacy and Security Point in Comment to NHTSA

On November 21, 2016, the FTC’s Director of the Bureau of Consumer Protection filed a comment with the National Highway Traffic Safety Administration (“NHTSA”) in support of including consumer privacy and cybersecurity guidance in NHTSA's Federal Automated Vehicles Policy. The guidance governs the collection, transmission and sharing of personal data, and how to protect that data, as cars become smarter and add Apple CarPlay, Google Android Auto and Windows Embedded Automotive, among other Internet-connected software options. The FTC applauded NHTSA's efforts to embed consumer privacy protections and cybersecurity into the software, expressing wholesale support of NHTSA's efforts while emphasizing the FTC's expertise in this area, including the Consumer Privacy Bill of Rights, to offer further guidance.

This past week, several consumer actions made headlines that affect the retail industry.

Eleventh Circuit Stays FTC Order in LabMD Case

The Eleventh Circuit Court of Appeals stayed an FTC Final Order requiring the now-defunct LabMD to implement numerous compliance measures stemming from a 2008 data leak. In July, the FTC ordered LabMD to establish an information security program and notify those affected by the data leak. LabMD closed in January 2014, citing prohibitive costs related to the FTC litigation. An Eleventh Circuit panel found that “[t]he costs of complying with the FTC’s Order would cause LabMD irreparable harm,” noting that the company has under $5,000 cash on hand, a pending $1 million judgment against it and is no longer operational. The court granted LabMD’s motion to stay the Order pending appeal.

This past week, several consumer actions made headlines that affect the retail industry.

Last month, the U.S. Court of Appeals for the D.C. Circuit heard oral argument in ACA International v. FCC, the appeal of the Federal Communication Commission’s (“FCC's”) July 2015 declaratory order interpreting the Telephone Consumer Protection Act (“TCPA”). Although scheduled to last 40 minutes, oral argument before the three-judge panel lasted almost three hours. The nature of the judges’ questioning suggests that the D.C. Circuit may soon clarify the TCPA’s restrictions on automated telephone dialing, a result many affected businesses throughout the country would welcome.

This past week, several consumer actions made headlines:

Hyundai and Kia Set State Attorneys General Investigations for $42.1 Million

Hyundai Motor Co. and Kia Motor Corp. have agreed to pay $42.1 million to settle claims by the Attorneys General of 33 states and the District of Columbia that the companies misrepresented mileage and fuel economy ratings for certain vehicles. Hyundai issued a statement regarding the settlement, noting that it contains no admission of any wrongdoing. The companies previously paid $100 million to settle claims that they had misrepresented emissions to the U.S. Environmental Protection Agency, and $225 million to a consumer class for overstating the fuel efficiency of their vehicles.

The following consumer protection actions made headlines this week:

Epson to Make Advertising Modifications Following NAD Recommendations

Epson America Inc. has agreed to make some modifications to its advertising after a challenge from HP. The NAD recommended Epson discontinue its “loaded and ready” claim as it may confuse consumers into thinking its EcoTank printers are pre-filled with ink and ready to print immediately. The NAD reviewed numerous other Epson claims, including: (1) EcoTank printers offer “an unbeatable combination of convenience and value”; (2) EcoTank printers will “save [consumers] a small fortune on ink”; and (3) implied claims that EcoTank printers provide environmental benefits versus other printers. While the NAD found that the EcoTank printer can save a consumer money in the long run, it recommended that Epson discontinue its “small fortune” claim. The NAD also found that Epson provided support for its implied comparative environmental claims.

The following consumer protection actions made headlines this week:

Mylan Reaches $465 Million Settlement Over Medicaid Classification

On October 7, 2016, Mylan Inc. announced that it had agreed to pay $465 million to resolve a DOJ investigation into Mylan's classification of EpiPen as a generic drug that resulted in Medicaid and Medicare receiving a significantly smaller rebate on every prescription since 2007. The DOJ, on behalf of the Centers for Medicare & Medicaid Services (“CMS”), investigated whether EpiPen should have been classified as a "branded" drug, which would have given CMS at least a 23.1 percent rebate, as compared to the 13.1 percent rebate CMS received for Mylan's self-classification of EpiPen as a generic drug. Mylan believed that although the injector pen device was patented, the relevant consideration for CMS classification is that the active ingredient in EpiPen is off-patent. The DOJ agreement resolves the government’s classification concerns, but does not address potential private class action litigation.

The following consumer protection actions made headlines this week:

Self-Regulatory

Zeltiq’s CoolSculpt Claims Referred to FTC and FDA

On October 5, 2016, the NAD referred advertising claims from Zeltiq Aesthetics, Inc., to the FTC and the U.S. Food and Drug Administration (“FDA”) for Zeltiq’s “CoolSculpting Cryolipolysis Body Contouring System,” a medical device that, according to the advertiser, uses a cooling treatment to target fat cells beneath the skin. The device is FDA approved, and the NAD found that the claims that the product is “FDA-cleared” and would result in a “slimmer you” were supported. However, the NAD recommended that Zeltiq add further disclosures about how the product works. Zeltiq said that it would comply with most, but not all, of NAD’s recommendations; per NAD procedure, the matter will be referred to the FTC and FDA.

This past week, several consumer actions made headlines:

Claims Against Advertisers for the Misuse of “Natural” Gain Traction

Claims that Nature’s Bounty's “natural” menopause remedy is ineffective and contains synthetic ingredients and lead survived a motion to dismiss and may proceed as a class action, according to a judge in the Eastern District of New York. The named plaintiff accuses Nature’s Bounty of advertising its black cohosh menopause remedy as “natural” and “nonsynthetic”; she also alleges that the effectiveness of the remedy is not supported by scientific evidence. A key issue before the court was whether a reasonable consumer would assume that the product – labeled as “natural” with a disclaimer that it contains “other ingredients” – contained only natural ingredients. The court found that a reasonable consumer would make this assumption and allowed the plaintiff’s advertising claims to proceed on that basis.

The first blow to the recent expansive application of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) was struck by a federal court in California last month. In Candelario v. Rip Curl, Inc., the Central District of California granted a motion to dismiss a complaint alleging a TCCWNA violation of website terms and conditions because the plaintiff lacked Article III standing. The plaintiff has appealed the decision to the Ninth Circuit.

This past week, several consumer actions made headlines:

General Mills Faces Potential Class Action Over Health Claims of Sugary Foods

General Mills has been sued in the Northern District of California over claims that it has put misleading labels on a number of its products. According to the complaint, labels with phrases such as “whole grains” and “fiber” are deceptive “because they are incompatible with the significant dangers of the excessive added sugar.” General Mills and other large food companies have been facing similar suits over labelling recently, including a lawsuit over the protein content of its “Cheerios Protein” brand.

This past week, several consumer, self-regulatory and regulatory actions made headlines:

Regulatory Actions

FTC Releases Newly Approved Energy Labeling Rules, Considering Other Changes

The FTC has approved changes to the Energy Labeling Rule, which it says are designed to improve access to energy labels and the labeling for refrigerators, ceiling fans, central air conditioners and water heaters. The labeling is designed to help consumers understand the energy cost of consumer products and make it easier for consumers to compare different product models.

Zara USA, Inc. (“Zara”), the popular European-based fashion retailer which boasts several celebrity clientele, has been targeted in a class action complaint filed in federal court, accused of allegedly carrying out a systematic “bait-and-switch” overpricing scheme. 

Since the U.S. Supreme Court’s 2014 decision in Daimler AG v. Bauman, 134 S.Ct. 746 (2014), numerous courts across the country have applied its holding to narrow the permissible bounds of the exercise of general jurisdiction over companies in jurisdictions without a connection to the specific claims in the case. On August 29, 2016, in Bristol-Myers Squibb v. Superior Court, No. S221038 (Calif. 2016), the California Supreme Court left many wondering what Daimler may mean for the exercise of specific jurisdiction in cases involving nationwide courses of business conduct affecting both resident and nonresident plaintiffs. 

This past week, several consumer, self-regulatory and regulatory actions made headlines:

Starbucks’ Glass Half Full: Coffee Purveyor Wins Underfilling Dismissal

On August 22, 2016, a U.S. District Court Judge in the Central District of California dismissed with prejudice class plaintiffs’ claims that Starbucks defrauded customers by overfilling its cold beverages with ice and underfilling with the ordered beverage. The Court found that the reasonable customer understands that ice displaces liquid and that some portion of a customers’ iced beverage would, indeed, contain ice. The Court defended Starbucks’ practice, saying that transparent cups plus the lack of advertising that the cold beverages would contain a specific number of ounces of actual liquid precluded class plaintiffs’ claims. Despite the dismissal, Starbucks still faces several similar underfilling class suits nationwide.

In this post-Spokeo world, a defendant facing the all-too-common “no-injury” putative class action might be tempted to seek dismissal of the lawsuit on Article III grounds. But a panel of Ninth Circuit judges recently gave a compelling reason why defendants should strongly consider otherwise. In Polo v. Innoventions Intern. LLC, a Ninth Circuit panel reversed the dismissal of a putative class action based on a lack of jurisdiction, with instructions to remand the case to state court. We previously reported about this possibility following the issuance of Spokeo, into which a Ninth Circuit panel now has breathed life.

This past week, several consumer and regulatory actions made headlines:

Federal Guidance

D.C. Federal Judge Vacates Part of FDA Tobacco Guidance

A D.C. federal judge vacated a portion of FDA guidance relating to the labeling of tobacco products. The key issue before the court was whether changing a tobacco product’s label to a distinct new label creates a new tobacco product subject to FDA approval. The court also considered the question of whether changing a product’s quantity resulted in the creation of a new tobacco product subject to the FDA’s “substantial equivalence review process.” The court found that while a change in the existing product’s label did not create a new tobacco product, a change in a product’s quantity did.

This past week, several consumer and regulatory actions made headlines:

FTC Warns Marketers of Zika-Prevention Products: Claims Must Be Substantiated

The Federal Trade Commission has issued warning letters to 10 marketers of products that purport to protect users from Zika infection. The letters remind marketers that health-related claims must be supported by competent, reliable scientific evidence. Specifically, the FTC warned that claims as to the efficacy of the various products must be supported by “well-controlled human clinical testing using the species of mosquitos that carry the disease in question, and must demonstrate that the effects last as long as advertised.” Additionally, claims that a product applied to a specific part of the body will confer full-body protection must be supported by scientific evidence. The FTC has urged the marketers to review their ads and to alter or remove any unsupported claims.

This past week, several consumer protection and regulatory actions made headlines:

Mars Petcare Settles With the FTC Over False Advertising Claims

Mars Petcare U.S., Inc., (“Mars Petcare”) has agreed to settle FTC allegations that the company falsely advertised its Eukanuba dog food.

The FTC’s complaint alleges that, in 2015, Mars Petcare claimed in TV, print and Internet ads that its dog food could increase a dog’s lifespan by 30 percent or more. This claim was allegedly based on a 10-year study of dogs who were fed Eukanuba. According to the FTC, the claim was false or unsubstantiated.

On July 29, 2016, President Obama signed into law a bill that will establish federal standards for labeling of food products that contain ingredients from genetically modified organisms (“GMOs”). Several consumer advocates opposed the bill, as it preempts more stringent labeling requirements in states like Vermont. However, several advocates on the other side favored the notion of national, uniform standards, as opposed to a patchwork of individualized state labeling laws.

This past week, several consumer protection and regulatory actions made headlines:

Court of Appeals Rules Spokeo Requires Actual Harm

A three-judge appellate panel dismissed the case in Hancock et al. v. Urban Outfitters, a putative class action against two retailers, Urban Outfitters and Anthropologie, who were alleged to have violated District of Columbia consumer protection laws by seeking consumers’ zip code information.

This past week, several consumer protection and regulatory actions made headlines:

Class Plaintiffs Just Keep Swimming Against Safeway in Underfilled Tuna Case

On July 13, 2016, Safeway escaped negligent misrepresentation claims in a putative class action consumer suit alleging that Safeway violated federal guidelines when it chronically underfilled two of its private label canned tuna products. Safeway filed a limited motion to dismiss the class plaintiffs’ unjust enrichment and negligent misrepresentation claims. The court found that, though duplicative, unjust enrichment was properly plead, but the negligent misrepresentation claim failed because class plaintiffs could not show that they suffered any loss other than an economic loss. Unfortunately for the grocer, eight other claims in the suit survived, including various breaches of warranty, unjust enrichment and California unfair competition counts. 

Consumer class actions are on the minds of virtually all consumer product manufacturers and service providers. Class actions based on privacy and consumer protection statutes are increasing at a remarkable rate, and can be a challenge to predict, budget and defend, given the difficulty in valuing consumer privacy rights. In an article, “Second Circuit Reminds Consumer Product Companies That Insurance Options Exist for Big Data Blunders and Privacy Faux Pas,” published in FC&S Legal’s Eye on the Experts column, Hunton lawyers Syed S. Ahmad, Neil K. Gilman and Paul T. Moura

The tidal wave of New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (“TCCWNA”) claims just swept up a novel argument: a class complaint against Facebook, Inc. argues that the popular social media site’s terms of use is subject to TCCWNA because Facebook profits from users’ personal information and intellectual property.

This past week, several consumer protection and regulatory actions made headlines:

Technology

Volkswagen to Pay an Additional $86 Million to California

On July 6, California Attorney General Kamala Harris announced that Volkswagen (“VW”) will pay the state an additional $86 million in a second partial settlement over VW’s emissions “defeat devices.” This civil penalty sum is the largest amount ever recovered by California from an automaker, and comes on the heels of the recently announced $14.7 billion settlement negotiated by the EPA and the FTC over the German automaker’s emissions-cheating scandal. The $86 million is part of a total $603 million VW has agreed to pay to resolve consumer-protection claims with 46 jurisdictions. As part of the settlement, VW agreed to strict injunctive terms, including prohibitions on false advertising and affirmative disclosure of defeat devices.

This past week, several consumer protection and regulatory actions made headlines:

FTC Announces Substantial Maximum Civil Penalties Increases Due to “Catch-Up” Cost-of-Living Adjustment

Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 2015, the FTC has approved new maximum civil penalties for 16 law provisions governed by the Agency. Many of the maximum penalties had not been adjusted in decades and are increasing substantially under the statutorily mandated “catch up” cost-of-living adjustment.

On June 28, 2016, in two related settlements, German auto-manufacturer, Volkswagen AG (“VW”), has agreed to pay $14.7 billion to resolve allegations that the company cheated diesel emissions tests for nearly 500,000 2.0 liter diesel vehicles sold over six years. One settlement partially resolves EPA allegations for alleged violations of the Clean Air Act’s federal emissions standard; the other partially resolves FTC claims that VW violated the FTC Act by deceptively and unfairly advertising its “clean diesel” vehicles. VW also will pay damages to 44 states, Washington, D.C., and Puerto Rico. The announced settlements do not resolve pending civil claims concerning VW’s 3.0 liter diesel vehicles, or potential criminal liability.

This past week, several consumer protection and regulatory actions made headlines:

FTC Issues Closing Letter in Bedrock “Made in USA” Labeling Investigation

On June 16, 2016, the FTC issued a closing letter in its investigation of Bedrock Manufacturing Company, the parent of Filson and Shinola. The FTC had raised concerns regarding Bedrock’s unqualified use of the phrases “Made in USA” and “Built in USA.” Despite using these labels, many of Shinola and Filson’s products were made with materials mostly or entirely sourced from outside of the US. The FTC closed its investigation as a result of Bedrock’s self-imposed corrective actions, including replacing hangtags and information cards for various products, updating employee training materials and advertising materials, and changing labelling integrated on the products themselves.

This past week, several consumer protection and regulatory actions made headlines:

Once You Pop, the Suit Can’t Stop: 7-Eleven Chip Labeling Suit Begins Again

On June 7, 2016, the Ninth Circuit reversed the district court’s dismissal of a proposed class action alleging that plaintiffs were misled by 7-Eleven’s potato chip bags, claiming they had no trans-fat or cholesterol. The lead plaintiff in the case claimed that he relied on the front-of-package labeling and would not have purchased the chips had the front also included the FDA-mandated, “See nutrition information for fat content,” disclosure. Importantly, the Ninth Circuit’s holding clarified that California’s consumer protection statute makes misleading statements actionable, even if they are not “technically false.” Plaintiffs allege that 7-Eleven’s attempts to gain a market advantage by a half-truth claim misled customers nationwide.

TCCWNA. The very acronym evokes head scratches and sighs of angst and frustration amongst many lawyers in the retail industry. You have probably heard about it. You may have even been warned about it. And you may currently be trying to figure out how best to minimize your risk and exposure this very moment. But what is it and why has virtually every retailer been hit with a TCCWNA class action demand letter or lawsuit in the past few months? And why are most retailers scrambling to update the terms and conditions of their websites?

As reported on the Hunton Insurance Recovery blog, in a June 1, 2016 decision, the Second Circuit Court of Appeals reminded retailers and product manufacturers to look to their insurance coverages when defending against consumer class actions. In National Fire Insurance Co. of Hartford et al. v. E. Mishan & Sons Inc., the Second Circuit required CNA Financial Corporation to defend E. Mishan & Sons, Inc.(“Emson”) – best known for its “As Seen on TV” products – in two class actions alleging a conspiracy to trap customers into recurring credit card charges and that Emson sold private consumer information that it obtained through its product sales.

This week, the following consumer protection actions made headlines:

Litigation

Claims Dismissed in San Francisco Soda Suit

A federal judge dismissed several constitutional claims in a suit against the city of San Francisco over its ban on ads for sugary drinks, because the ordinance has since been repealed. Both San Francisco and the plaintiffs, including the American Beverage Association and other trade groups, asked the judge to dismiss the free speech and due process violation claims from the original complaint. Although the advertising component of the ordinance was repealed in December, the suit continues over a new ordinance, set to take effect on July 25, 2016, that requires ads for soda and other sugary drinks to display a mandatory health warning. The judge previously declined to enjoin the ordinance, saying that it was not likely for the plaintiffs to succeed on their First Amendment claim under the rational basis test for commercial speech.

As we previously reported, the Supreme Court’s decision in Spokeo v. Robins has been nearly universally lauded by defense counsel as a new bulwark against class actions alleging technical violations of federal statutes. It may be that. But Spokeo also poses a significant threat to defendants by defeating their ability to remove exactly the types of cases that defendants most want in federal court. The decision circumscribes the federal jurisdiction, with all its advantages, that defendants have enjoyed under Class Action Fairness Act (“CAFA”) for the past decade.

This past week, the following regulatory and consumer actions made headlines:

Cheez-It Whole Grain Crackers ‘Not Ready,’ lawsuit claims

The Kellogg Company is being sued over its “whole grain” Cheez-It crackers. According to the complaint filed in U.S. District Court for the Eastern District of New York, the claim that these crackers are whole grain is “false and misleading, because the primary ingredient in Cheez-It Whole Grain crackers is enriched white flour.”

While the Cheez-It Whole Grain crackers do contain some whole wheat flour, plaintiffs argue it is almost negligible. A comparison of the Cheez-It Original crackers and the Cheez-It Whole Grain crackers shows identical nutritional values in every category, except fiber. The Original crackers contain “less than 1g,” while the Whole Grain crackers contain 1 gram.

Plaintiffs argue the Cheez-It claims are thus misleading, and have caused consumers to purchase or pay a premium for a product, that they otherwise would not have paid. The Kellogg Company has denied any misconduct, including any alleged impropriety in its labeling.

On May 16, 2016, the United States Supreme Court rendered its decision in Spokeo, Inc. v. Robins, Case No. 13-1339, a case that businesses and the plaintiffs’ bar have been following closely, due largely to its potential effect on class actions predicated on alleged statutory violations and seeking solely statutory damages. In an opinion authored by Justice Alito, the Court held that a plaintiff must do more than plead a statutory procedural violation to establish standing; to plead an injury in fact, a plaintiff also must allege a harm that is both “concrete” and “particularized.” However, the Court did not apply its holding to the facts, instead remanding for further analysis by the Ninth Circuit. While both plaintiffs’ attorneys and defense attorneys are claiming a “victory,” Spokeo provides some ammunition for businesses that find themselves facing so-called “no-injury” class action lawsuits predicated on consumer protection statutes. 

This week, the following consumer protection actions made headlines:

Mortgage Scammer Under Water After FTC Settlement

On May 9, 2016, the FTC announced that it is returning $1.87 million to 1,630 consumers who lost money in the Expense Management America telemarketing scheme that never provided debt or mortgage relief services after absconding with homeowners’ up-front fees. The repayment to consumers is a capstone on a three and a half year joint effort with the DOJ, FBI and HUD to crack down on mortgage scammers taking advantage of distressed homeowners. Related efforts, underway since 2008, resulted in a new FTC rule providing increased protection to homeowners by prohibiting any collection of fees until the homeowner has an acceptable written offer from their lender. In prosecuting Expense Management America, the FTC worked closely with various enforcement agencies in Canada to track down and prosecute the scammers.

This week, the following consumer protection actions made headlines:

Federal Trade Commission:

FTC Obtains Multimillion Dollar Judgment Against Repeat Offender

At the FTC’s request, the U.S. District Court for the Southern District of New York entered a $13.4 million judgment against BlueHippo’s CEO, Joseph Rensin, as well as finding Rensin, BlueHippo Funding LLC and BlueHippo Capital LLC, in contempt for violating a 2008 federal court order concerning BlueHippo’s operation of a deceptive computer financing scheme. The FTC charged BlueHippo with contempt in 2009, alleging that the company contracted with thousands of consumers to finance new computers, but failed to provide those computers, in addition to having a deceptive refund policy. In July 2010, the Court issued an order partially granting the FTC’s motion for contempt. The FTC appealed the compensatory sanctions portion of that order, and in August 2014, the United States Court of Appeals for the Second Circuit vacated the damages portion of the order and remanded the case for a reconsideration of damages. The contempt judgment will go towards consumer redress.

This week, the following consumer protection actions made headlines:

Self-Regulatory Decisions:

Steuart’s Pain Formula Referred to the FTC

The National Advertising Division (“NAD”) referred Steuart Laboratories, Inc., the producer of Steuart’s Pain Formula, to the FTC for the second time after it failed to provide the NAD with substantiation for challenged claims. Steuart was initially referred to the NAD by Steuart’s competitor, EuroPharma, Inc., who challenged several efficacy and testimonial claims.

We previously reported on the proposed regulations initiated by the California Office of Environmental Health Hazard Assessment and its impact on retailers. Retailers should take steps to ensure that they are protected from Prop 65 claims, particularly with the proposed regulations in the pipeline. As with any regulatory requirements that impact businesses, often the best defense is a good offense -- forethought, assessment and implementation of a compliance program can minimize the costs, headaches, business disruption and negative publicity that may otherwise occur.

Mars, Inc. and its M&M’s Minis candy are the latest targets in a wave of “slack-fill” litigation.

Slack-fill is empty space in product packaging – i.e., the difference between the maximum capacity of a product’s container and the actual volume of product inside. Slack-fill litigation has increased in recent years as class plaintiffs allege that companies are deliberately including empty space in their packaging to deceive consumers into paying higher prices for lower product quantities.

This past week, several consumer protection actions made headlines:

FTC to Let the Sun Shine on Consumer Protection Issues in Rooftop Solar Panel Businesses

The FTC announced that it will be holding a workshop focused on competition and consumer protection in the growing industry of consumer-oriented rooftop solar panels. The workshop, which will take place in Washington D.C. on June 21, 2016, is meant to expand the FTC’s understanding and approach to the growing consumer solar panel industry. Planned topics of discussion include: (1) how consumers can get needed information when deciding whether to install rooftop solar panels; (2) how utility regulators currently approach compensating consumers for power generated on their solar panels; and (3) competition in the solar power generation industry.