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Legal News

False Advertising

[05/17] Pom Wonderful LLC v. The Coca-Cola Co.
In a suit by a juice maker alleging Lanham Act violations and asserting state-law unfair competition and false advertising claims, the district court's grant of partial summary judgment to the defendant is: 1) affirmed insofar as the district court held that the federal Food, Drug, and Cosmetic Act and its regulations barred pursuit of both the name and labeling aspects of the plaintiff's Lanham Act claim; and 2) vacated as to the plaintiff's state-law claims, where the district court erred in ruling that the plaintiff did not have statutory standing.

[05/16] In re Schering Plough Corp.
In consolidated putative class actions brought by third-party payors of drugs prescribed for off-label purposes and by individual patients against a drug company that conducted alleged illegal and false sales and marketing campaigns, the district court's dismissal of both actions for lack of standing is affirmed, where: 1) the third-party payor plaintiff did not establish that its alleged injury was fairly traceable to the defendant's alleged wrongful conduct; and 2) the individual plaintiff failed to adequately allege causation.

[05/14] People v. E*Poly Star, Inc.
In a suit brought by several district attorneys' offices alleging that the defendant violated California's false advertising law and the unfair competition law (UCL) by making false and misleading statements regarding the dimensions, quantity and thickness of its plastic bags and toilet paper when it sold those products to governmental entities, the trial court's dismissal on statute of limitations grounds is reversed, where the district attorneys limited their lawsuit to unlawful acts that fell within the four-year period for bringing UCL claims specified in Business and Professions Code section 17208 and that, for purposes of the request for injunctive relief, were likely to recur in the future.

[03/27] Koch v. Acker, Merrall & Condit Co.
By memorandum, a judgment of the Supreme Court and an order of the Appellate Division brought up for review are reversed, and the defendant's motion to dismiss the plaintiff's General Business Law sections 349 and 350 causes of action denied, where: 1) the plaintiff sufficiently pleaded such causes of action; 2) the disclaimers set forth in the defendant's catalogs did not bar the plaintiff's claims for deceptive trade practices, as they did not establish a defense as a matter of law; and 3) to the extent that the Appellate Division order imposed a reliance requirement on General Business Law sections 349 and 350 claims, it was error.

[03/12] Skydive Arizona, Inc. v. Quattrocchi
In a suit by the owner and operator of a skydiving center against the operator of an internet and telephone-based skydiving advertising service for false advertising, trademark infringement and cybersquatting: 1) the district court's grant of partial summary judgment to the plaintiff on its false advertising claim is affirmed, where the district court did not err in finding materiality based upon a declaration and evidence from other consumers rather than the results of a consumer survey; 2) the district court did not abuse its discretion in upholding the jury's award of actual damages and lost profits; and 3) the district court's actual damages enhancement is reversed because it hinged upon punishing the willful conduct of the defendant.

[02/09] Metabolic Research, Inc. v. Ferrell
In a case alleging false advertising claims by a maker of a fitness supplement, in which the district court denied a pretrial special motion to dismiss under Nevada's anti-SLAPP statute, interlocutory appeal is dismissed for lack of jurisdiction, as the order was not a collateral order justifying an immediate appeal, since it would not be effectively unreviewable on appeal from a final judgment.

[01/12] Mazza v. American Honda Motor Co., Inc.
In an appeal from the district court’s Rule 23(b)(3) certification of a nationwide class complaint for false advertising and other related state claims, judgment is reversed where the district court erred because it erroneously: 1) concluded that California law could be applied to the entire nationwide class; and 2) concluded that all consumers who purchased or lease an Acura RL can be presumed to have relied on defendant’s advertisements.

[10/28] Duncan v. The McCaffrey Group, Inc.
In an appeal from a judgment of the trial court dismissing plaintiffs' complaint for unfair competition and false advertising, judgment is reversed because: 1) the complaint pleaded sufficient facts to proceed; and 2) a triable issue of fact exists as to breach of fiduciary duty and constructive fraud causes of action.

[09/28] Degelmann v. Advanced Medical Optics Inc.
In an appeal from a judgment of the district court dismissing plaintiffs' action against defendant for unfair competition and false advertising, judgment is affirmed where although the court erred in finding that plaintiffs lacked standing, plaintiffs' claims as alleged are preempted under 21 U.S.C. section 360k(a) of the Medical Devices Amendments.

[09/23] Gonzales v. Arrow Financial Services, LLC
In an appeal from a judgment of the district court and an award of statutory damages under the under both the FDCPA and the Rosenthal Act, California Civil Code section 1788 et seq., judgment is affirmed where the court correctly granted summary judgment in favor of plaintiffs because defendant's letters to plaintiffs constituted false, deceptive, or misleading representations in connection with the collection of debts, and where the Rosenthal Act permits class actions while permitting class-plaintiffs to recover statutory damages under both the FDCPA and Rosenthal Act does not violate the FDCPA.

[08/31] Duick v. Toyota Motor Sales, U.S.A., Inc.
In an appeal from a judgment of the trial court denying defendant's motion to compel arbitration of plaintiff's causes of action including intentional infliction of emotional distress, negligence, and false advertising, judgment is affirmed where putative contract is void on account of fraud in the inception.

[08/19] Federal Trade Commission v. Bronson Partners, LLC
In an action for deceptive advertising arising from defendant's sale of two purported weight loss products, judgment of the district court enjoining defendant from future sales of the products and awarding plaintiff money judgment with statutory interest is affirmed where the court had the power to award restitution pursuant to Section 13(b) of the Federal Trade Commission Act, 15 U.S.C. section 53(b), and did not err in ordering defendant to disgorge the full proceeds from its sale of subject products.

[08/17] Bullock v. Philip Morris USA, Inc.
In an action for products liability, fraud and other theories arising from the plaintiff's affliction with lung cancer because her 45-year habit of smoking defendant's cigarettes, judgment of the trial court awarding plaintiff $13.8 million in punitive damages as against an $850,000 compensatory damages award is affirmed over defendant's meritless challenge on the grounds that the punitive damages award is: 1) barred by res judicata because of the settlement of an action by the California Attorney General against Philip Morris and other cigarette manufacturers; and 2) unconstitutionally excessive.

[08/04] Pernod Ricard USA, LLC v. Bacardi U.S.A., Inc.
In a dispute involving the false advertising provision of the Lanham Act and concerning allegations that the popular Bacardi brand moniker, Havana Club, falsely advertises the geographic origins of the rum, judgment of the district is affirmed where the label is not a misleading statement of geographic origin under Section 43(a)(1)(B) of the Lanham Act.

[07/28], Inc. v. EDriver Inc.
In an action arising from a very close imitation of the state DMV's website by a private, commercial website and alleging unfair competition and false advertising, judgment of the district court is affirmed in part and reversed in part where the court held that defendants violated section 43(a) of the Lanham Act, 15 U.S.C. section 1125(a), but rejected plaintiff's state unfair competition claims with an injunction ordering the defendants to publish a disclaimer on its website, while denying plaintiffs' monetary relief and attorney's fees.

[07/22] Poulin v. Balise Auto Sales Inc.
In a class-action dispute alleging that the defendant violated the Truth in Lending Act, 15 U.S.C. section 1601 et seq., and various state laws by burying hidden finance charges in the prices that plaintiffs were charged to finance their automobiles purchases, judgment of the district court dismissing action is affirmed where complaint failed to state a claim upon which relief can be granted.

[07/20] Del Webb Communities, Inc. v. Partington
In a dispute arising from an injunction against the owner and operators of a Nevada company that inspected homes for construction defects and encouraged homeowners to file claims against their builder under a Nevada statute, judgment of the district court is reversed where the general prohibition against operating by means of illegal, unlicensed and false practices is too vague to stand, but affirmed otherwise.

[02/22] Safaie v. Jacuzzi Whirlpool Bath, Inc.
In a petition for writ of mandate, brought by plaintiffs to recertify a class of individuals who purchased whirlpool bathtubs from defendants, the trial court's denial of motion for class recertification is affirmed, based on the "state law policy" rule that a party is not entitled to bring a renewed motion for class certification after a trial court has issued a final order denying certification.

[01/19] Hypertouch, Inc. v. Valueclick, Inc.
In plaintiff's suit against defendants, engaged in online marketing services, claiming violations of Business & Professions Code section 17529.5(a), which prohibits entities from advertising in a commercial electronic message that contains various types of deceptive content, trial court's grant of defendants' motion for summary judgment in ruling that the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) preempted plaintiff's section 17529.5 claims is reversed and remanded where: 1) plaintiff's section 17529.5 claims are not preempted by the CAN-SPAM Act; 2) plaintiff has raised a triable issue of fact regarding whether defendants violated section 17592.5, as plaintiff is not required to demonstrate that defendants sent or had knowledge of the offending emails and there are triable issue of facts with respect to whether the content of the emails violated section 17529.5 ; and 3) defendants are not entitled to summary adjudication as plaintiff may seek actual damages for any email it received within three years prior to the filing of the complaint and liquidated damages for any email received within one year prior to the filing of the complaint.

[10/29] Sevidal v. Target Corp.
In plaintiff's class action suit against Target Corporation, claiming fraud and violation of unfair competition and false advertising laws, and seeking injunctive and restitutionary relief, after purchasing clothing items from the company's website that were misidentified as made in the United States, trial court's denial of plaintiff's motion to certify the class is affirmed where: 1) the trial court properly refused to certify the class based on its finding the proposed class was not ascertainable, as substantial evidence supports the court's conclusion the absent class members could not be reasonably identified by reference to records or by common characteristics that would allow the class members to identify themselves; and 2) the trial court properly found the class was overbroad because the evidence shows the vast majority of absent class members never saw the web page containing the alleged misrepresentation and thus were never exposed to the alleged wrongful conduct.

[10/26] Fed. Trade Comm'n v. Lane Labs-USA, Inc.
In proceedings arising from the Federal Trade Commission's (FTC) action against defendants manufacturing distributor of specialty dietary supplements and cosmetic products, charging defendants with deceptive acts in violation of section 5 of the Federal Trade Commission Act (Act), district court's order denying the Federal Trade Commission's (FTC) motion to hold defendants in contempt for violation of a consent judgments entered by the district court on July 2000 and September 26, 2000 is vacated and remanded as the district court's conclusion that the defendants complied with "the spirit" of the Final Order was insufficient as the district court was not petitioned for an assessment of the general efficacy of the calcium and the male fertility enhancing supplements. Here, the FTC contended that specific marketing claims were violations of two previously entered consent decrees, and here, the district judge did not provide sufficiently detailed findings or sufficient rationale to allow effective appellate review to be performed.

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