Ninth Circuit Revives Suit Alleging Gerber Sold “Misbranded” Baby Food

8708982582_39f4d524c4_bBy Kelly M. Morrison

On Wednesday, April 19, 2017, the Ninth Circuit (with Judge O’Scannlain dissenting in part) issued an unpublished opinion reversing and remanding several of Judge Koh’s orders in Bruton v. Gerber Products Co. 

Plaintiff Natalia Bruton alleged that the labels of several Gerber baby food products were “misbranded” under the federal Food Drug & Cosmetic Act (“FDCA”) and the FDA regulations adopted pursuant to that Act, violating several federal and California statutes, including California’s Unfair Competition Law (“UCL”), False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”), and supporting a claim for unjust enrichment.  For example, Plaintiff alleged that the labeling claims on the products at issue, such as “No Added Sugar” and “As Healthy as Fresh,” were impermissible because food manufacturers are allegedly “prohibited from making nutrient content claims with respect to food products intended to be consumed by children under two years old.”  Among other things, Plaintiff asserted a novel theory that, even if the labels were not false or misleading to a reasonable consumer, the labeling violations barred the products from being “legally sold or possessed,” rendering them “legally worthless.”  According to Plaintiff, the mere sale of a product bearing an improper label – “standing alone without any allegations of deception by Defendant, or review of or reliance on the labels by Plaintiff” – gives rise to a cause of action under California law.

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Supreme Court Determines that New York Law Governing Credit Card Surcharges Regulates Speech

Pexels-photoBy Leonard R. Powell

On March 29, 2017, the United States Supreme Court held that a New York law prohibiting sellers from “impos[ing] a surcharge on a holder who elects to use a credit card” was a regulation of speech—not conduct—but the Court remanded the case to the Second Circuit to determine whether the speech regulation survives First Amendment scrutiny.

Regulation of credit card “surcharges” and cash “discounts” dates back to the 1970s and 1980s. In 1974, Congress amended the Truth in Lending Act (TILA) to, inter alia, “prohibit[] card issuers from contractually preventing merchants from giving discounts to customers who paid in cash.” In 1976, Congress further added to TILA a ban on card surcharges. However, the existence of opposing bans demanded a method for distinguishing between them. By 1981, Congress had defined “discount” as “a reduction made from the regular price,” “surcharge” as “any means of increasing the regular price to a cardholder which is not imposed upon customers paying by cash, check, or similar means,” and “regular price” as (1) the “tagged or posted” price when only a single price is posted, or (2) the price charged to card users when either no price is posted or two prices (both a cash price and a credit card price) are posted. Despite the complicated nature of this statutory framework, the bottom line was simple: “a merchant could violate the surcharge ban only by posting a single price and charging credit card users more than that posted price.”

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Senate Commerce Committee Clears Main Street Cybersecurity Act to Help Small Businesses

By Sati Harutyunyan

Hacking-2077124_1920The full Senate will consider a bill that seeks to equip small businesses with resources to shield against and manage cybersecurity risks, following the Senate Commerce Committee’s passage of the Making Available Information Now to Strengthen Trust and Resilience and Enhance Enterprise Technology (“Main Street”) Cybersecurity Act on April 5, 2017.  The crux of the bill is a requirement that the National Institute of Standards and Technology (NIST) provide resources to small business wishing to implement the voluntary NIST Cybersecurity Framework.  The term “resources” refers to guidelines, tools, best practices, standards, methodologies, and other ways of providing information, and does not indicate financial contributions.  S. 770, 115th Cong.  § 3(a)(2) (2017).

The bill proposes that that NIST must, under the Cybersecurity Enhancement Act of 2014, facilitate and support a voluntary public-private partnership that is crucial to reducing cybersecurity risk and making U.S. cyberspace safer.  Id. at § 2.  In an apparent effort to promote that partnership, the bill requires NIST to consult with heads of federal agencies and disseminate clear and concise resources for small businesses to help reduce their cybersecurity risks.  Id. at § 3(c)(1) (2017).  In designing the resources, NIST must tailor them to fit the nature and size of the small business implementing the Cybersecurity Framework.  Id. at § 3 (c)(2)(B) (2017).  Moreover, NIST must ensure that all resources are technologically neutral and implementable using commercial and off-the-shelf technologies.  Id. at § 3 (c)(2)(D) (2017).  Finally, the bill clarifies that the use of the disseminated resources by small businesses is to be voluntary.  Essentially, the bill is designed to help small businesses help themselves, and to ensure that the NIST Framework evolves to incorporate the needs of small businesses.  Previous cybersecurity legislation (including the Cybersecurity Act of 2015) have focused on owners and operators of critical infrastructure industries, given their heightened obligations for security.  This bill’s focus on small business demonstrates that cybersecurity should be a priority for all companies, and that there should be improved ways to assist small businesses in increasing their own cybersecurity. 

A date for full consideration has not yet been scheduled.


D.C. Circuit Strikes Down FCC Rule Requiring Opt-Out Notices on Solicited Faxes

By Alexander M. Smith

Printer-2178752_1920In November 2016, this blog reported that the D.C. Circuit appeared “sympathetic” to the position that the Telephone Consumer Protection Act (“TCPA”), which regulates “unsolicited” fax advertisements, did not empower the FCC to require opt-out notices on solicited fax advertisements.  Last Friday, a divided panel of the D.C. Circuit issued an opinion striking down the FCC’s 2006 rule requiring opt-out notices on solicited fax advertisements. 

In 2010, a group of businesses facing class action lawsuits involving solicited faxes without opt-out notices sought a declaratory ruling from the FCC clarifying that the TCPA does not require an opt-out notice on solicited fax advertisements.  The FCC responded to their petition by reiterating its position that the TCPA authorized it to require opt-out notices on solicited faxes, but it stated that it would waive application of this rule to businesses that sent solicited faxes before April 30, 2015.  The petitioners then sought review from the D.C. Circuit.  (A separate group of class action plaintiffs also appealed the FCC’s decision to grant a retroactive waiver.) 

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Southern District of California Dismisses Serial Plaintiff’s Suit Challenging Discount Prices

930660427_f9b535e230_oBy Sandra Hanian

On March 22, Judge John A. Houston of the Southern District of California dismissed one of the latest in a long line of putative class action lawsuits against retailers for allegedly deceptive pricing practices at outlet and factory stores, but allowed the plaintiff leave to amend the complaint.

The plaintiff Randy Nunez — who had previously filed putative consumer class actions against Best Buy, Microsoft, ConAgra, and others — alleged that Saks Incorporated advertised false comparable prices and false price discounts for the retailer’s branded merchandise sold at Saks Fifth Avenue OFF 5th stores and on the saksoff5th.com website.  Specifically, he claimed that he purchased a pair of Saks-branded shoes advertised with a “market price” of $145.00 and sold at a discounted sale price of $79.00, but that this and advertised discounts for other products were “nothing more than mere phantom markdowns because the represented market prices were artificially inflated and were never the original prices” for the items sold.  Amended Complaint at ¶¶ 2, 10, Nunez v. Saks Inc., No. 15-02717 (S.D. Cal. Jan. 15, 2016), ECF No. 8.  Further, the plaintiff asserted that the represented “market” prices were not the prevailing market retail prices within 90 days preceding the publication of the advertised former prices, as required by California law.  Nunez alleged that Saks’ pricing practices violated California’s Unfair Competition Law (“UCL”) False Advertising Law (“FAL”), and Consumer Legal Remedies Act (“CLRA”), as well as the Federal Trade Commission Act.

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Recent Suits Alleging Domestic Beers Masquerading as Imports Fall Flat

By Kelly M. Morrison

Beer-drinkIn 2013, a putative class action was filed against Anheuser-Busch alleging that it mislead consumers into believing that Beck’s beer is a German import, when in fact the company had begun brewing it in St. Louis the prior year.  Plaintiffs claimed that labeling statements such as “Originated in Germany,” “German Quality,” and “Brewed Under the German Purity Law of 1516,” along with “Beck’s history of being an imported beer from Germany,” caused consumers to believe they were purchasing beer brewed in Germany.  The Defendant pointed out that the label disclosed that the beer was a “Product of USA, Brauerei Beck & Co., St. Louis, MO,” and the carton stated “Brauerei Beck & Co., Beck’s Beer, St. Louis, MO,” but the Court declined to dismiss the case on the pleadings.  Marty v. Anheuser-Busch Cos., LLC, 43 F. Supp. 3d 1333 (S.D. Fla. 2014).  It later settled for over $20 million.

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Supreme Court Hears Oral Argument in Microsoft v. Baker (Part II)

Supreme Court iStock_000017257808LargeBy Alexander M. Smith

On Tuesday, March 21, the Supreme Court heard oral argument in Microsoft, Inc. v. Baker.  (This blog has previously covered Baker here and here.)  Baker addresses whether a plaintiff can render a denial of class certification – which is not otherwise a final appealable order under 28 U.S.C. § 1291 – appealable by voluntarily dismissing her individual claims.  

According to Ronald Mann at SCOTUSBlog, the Justices were “deeply skeptical” of this strategy and appeared sympathetic to Microsoft’s argument that a party cannot ask a court to enter a judgment against her and then appeal from that judgment.  At one point, Mann reports, Justice Kagan asked: “Why did people think this was the governing law?”  Likewise, Justice Roberts commented that if “you told the district court to enter a judgment against you . . . you can’t argue that it shouldn’t have done that.”   The Court also appeared sympathetic to Microsoft’s argument that the voluntary dismissal strategy effectively gutted Federal Rule of Civil Procedure 23(f), which grants federal appellate courts discretion to allow interlocutory appeals of class certification rulings.  At one point, Justice Ginsburg stated that Rule “23(f) is out the window” if plaintiffs are allowed to appeal a class certification ruling after voluntarily dismissing their individual claims.   Ultimately, Mann concluded, “[t]his is one of those arguments in which the [J]ustices leave little doubt about the ultimate outcome,” and he predicts a “prompt and all-but-unanimous reversal of the 9th Circuit.” 

The transcript is available here.  We will report on the opinion once it issues. 

 


Supreme Court Hears Oral Argument in Microsoft Corp. v. Baker

By Alexander M. Smith

Supreme-court-546279_1920Today, the Supreme Court hears oral argument  in Microsoft Corp. v. Baker, which addresses the question of whether a plaintiff may render a denial of class certification appealable by voluntarily dismissing his or her claims with prejudice.  (The Consumer Law Roundup’s earlier post on Baker is available here.)   As SCOTUSBlog notes, the case pits Microsoft, which argues that this strategy is “a thinly veiled end-run” around both Rule 23(f) and the general rule prohibiting interlocutory appeals of denials of class certification, against the plaintiffs’ bar, which argues that this strategy satisfies the rule against interlocutory appeals by providing an order of dismissal, which is “the paradigmatic final order suitable for appellate review.” 

We will provide an update about oral argument shortly.    


House of Representatives Passes Class Action Reform Measure

By Alexander M. Smith

Washington-dcUpdating our previous report on the introduction of proposed class action reform, on March 9, the U.S. House of Representatives passed H.R. 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, by a margin of 220-201.  The current version of H.R. 985 includes, among other things, the following provisions: 

  • R. 985 bars federal courts from certifying “a class action seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.” 
  • Additionally, H.R. 985 bars certification of “a class action seeking monetary relief unless the class is defined with reference to objective criteria and the party seeking to maintain such a class action affirmatively demonstrates that there is a reliable and administratively feasible mechanism (a) for the court to determine whether putative class members fall within the class definition and (b) for distributing directly to a substantial majority of class members any monetary relief secured for the class.” 
  • R. 985 also bars federal courts from certifying a class action “with respect to particular issues pursuant to Rule 23(c)(4) of the Federal Rules of Civil Procedure unless the entirety of the cause of action from which the particular issues arise satisfies all of the class certification prerequisites of Rule 23(a) and Rule 23(b)(1), Rule 23(b)(2), or Rule 23(b)(3).”
  • R. 985 requires that, “[i]n any class action, all discovery and all other proceedings shall be stayed during the pendency of any motion to transfer, motion to dismiss, motion to strike class allegations, or other motion to dispose of the class allegations, unless the court finds upon the motion of any party that particularized discovery is necessary to preserve evidence or to prevent undue prejudice to that party.” 
  • R. 985 would require disclosure of third-party litigation funding for any class action.
  • Finally, H.R. 985 provides that “[a] court of appeals shall permit an appeal from an order granting or denying class-action certification under Rule 23 of the Federal Rules of Civil Procedure.” 

The bill also includes other provisions relating to joinder of parties in personal injury and wrongful death claims removed to federal court, as well provisions affecting multidistrict litigation procedure. 

On March 13, the bill was referred to the Senate Committee on the Judiciary.  We will continue to monitor this legislation.

Law360, the National Law Journal , and JD Supra have additional coverage.  


House Bill Seeks to Reform Class Action Litigation

New-Development-IconBy Christina Aryafar

On February 9, 2017, House Judiciary Committee Chairman Bob Goodlatte introduced the “Fairness in Class Action Litigation Act of 2017” (H.R. 985), which seeks to amend the procedures used in Federal court class actions and multidistrict litigation proceedings.  Representatives Pete Sessions and Glenn Grothman signed on as cosponsors of the bill earlier this week. 

According to Representative Goodlatte, the proposed reforms would “protect innocent individuals and small businesses who have become the targets of frivolous suits by attorneys who have found loopholes in our civil litigation system.”  He asserts that the provisions of the bill would “maximize recoveries by deserving victims, and weed out unmeritorious claims that would otherwise siphon resources away from innocent parties.”  See Press Release from the Office of Bob Goodlatte, Feb. 10, 2017 (available here).

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