Tag Archives: surveys

Ambiguity in consumer protection cases means something different than ambiguity in Lanham Act cases

Posted on June 27, 2023 by rtushnet

Would you believe I substantially shortened the analysis? La Barbera v. Olé Mexican Foods Inc., 2023 WL 4162348, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. May 18, 2023) Granting reconsideration, the court reverses its previous ruling and dismisses the claims … Continue reading →

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Once again surveys fail to aid consumer-plaintiffs in greenwashing case

Posted on June 20, 2023 by rtushnet

McGinity v. Procter & Gamble Company, — F.4th —-, 2023 WL 3911531, No. 22-15080 (9th Cir. Jun. 9, 2023) The court affirmed the dismissal of consumer protection claims against P&G products that used “Nature Fusion” in bold, capitalized text, with … Continue reading →

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court doesn’t find consumer protection claim over “sweet cream” plausible without survey; dictionaries insufficient

Posted on May 19, 2023 by rtushnet

Sneed v. Ferrero U.S.A., Inc., — F.Supp.3d —-, No. 22 CV 1183, 2023 WL 2019049 (N.D. Ill. Feb. 15, 2023) Courts in consumer protection cases reject surveys with abandon when they don’t agree with the results, but may also demand … Continue reading →

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consumer survey can’t make a scientifically wrong use of a term right

Posted on April 3, 2023 by rtushnet

Gunaratna v. Dennis Gross Cosmetology LLC, No. CV 20-2311-MWF (GJSx), 2023 WL 2628620 (C.D. Cal. Mar. 15, 2023) Plaintiff challenged defendant’s “C + Collagen” claim as falsely indicating that its product actually contained collagen.   Defendant wants to make this … Continue reading →

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Vanilla class action certified based on sufficient survey evidence

Posted on March 13, 2023 by rtushnet

Vizcarra v. Unilever U.S., Inc., 2023 WL 2364736, No. 4:20-cv-02777 YGR (N.D. Cal. Feb. 24, 2023) Hey, it’s a certified class in a vanilla case: Vizcarra alleged that Breyers Natural Vanilla Ice Cream misleadingly communicated that it contained vanilla flavor … Continue reading →

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Timeshare case: proof of causation/damages is difficult especially w/o grasp of Bayesian probability

Posted on October 26, 2021 by rtushnet

Wyndham Vacation Ownership, Inc. v. Sussman, 2021 WL 4948099, No. 6:18-cv-2171-GAP-DCI (M.D. Fla. Sept. 20, 2021) In this timeshare exit false advertising litigation, the court excludes Wyndham’s expert. Timeshare exit entities like defendant TET used “online advertising and oral sales … Continue reading →

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survey evidence disregarded in another vanilla case

Posted on October 7, 2021 by rtushnet

Twohig v. Shop-Rite Supermarkets, Inc., 2021 WL 518021, No. 20-CV-763 (CS) (S.D.N.Y. Feb. 11, 2021) ShopRite sells organic vanilla soymilk. Plaintiffs brought the now-standard vanilla versus vanillin claims. They argued that the ingredient list, which includes “Organic Natural Flavors” and … Continue reading →

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Survey flaws prevent it from saving vanilla false advertising claim

Posted on September 30, 2021 by rtushnet

Clark v. Westbrae Natural, Inc., 2021 WL 1580827, No. 20-cv-03221-JSC (N.D. Cal. Apr. 22, 2021) I find the vanilla class actions fascinating because they are starting to reject surveys, pushing this area of the law towards a normative vision of … Continue reading →

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expert admissibility, literal falsity receive close review in drug disposal case

Posted on September 10, 2021 by rtushnet

In re C2R Global Manufacturing, Inc., No. 18-30182-beh, 2021 WL 1347193 (E.D. Wis. Bkrcy. Mar. 30, 2021) Previous denial of injunctive relief. There are a number of opinions in this case—the judge spent time on this rather unusual false advertising … Continue reading →

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Defendant’s survey too flawed to avoid class certification in “rapid release” case

Posted on September 2, 2021 by rtushnet

Bailey v. Rite Aid Corp., 338 F.R.D. 390, 2021 WL 1668003, No.. 4:18-cv-06926 YGR (N.D. Cal. Apr. 28, 2021) Bailey brought claims over Rite Aid’s marketing of its over-the-counter acetaminophen gelcaps as “rapid release.” Studies allegedly show that “traditional, non-rapid release acetaminophen … Continue reading →

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