In an opinion Tuesday, Judge Marrero allowed a putative consumer fraud class action to proceed (in part) against Canada Goose. The plaintiff purchased a jacket that he claims was falsely marketed with a paper hang tag stating that the company supports the “ethical, responsible, and sustainable sourcing and use of real fur.” Judge Marrero rejected the company’s argument that these statements were “too general and subjective” to be actionable, and instead found that the allegations, though “thin,” were enough to proceed beyond a motion to dismiss:
Continue Reading Judge Marrero Allows Consumer Fraud Claims Over Jackets Marketed as Made with Ethically-Sourced Fur
Consumer Litigation
In “Close Call,” Judge Cronan Allows Consumer Fraud Claims to Proceed Over “Smokehouse” Branded Almonds that Are Not Actually Smoked
In an opinion yesterday, Judge Cronan refused to dismiss a case under New York’s consumer fraud statute alleging that the “Smokehouse” almonds (depicted below) were marketed in a misleading fashion because allegedly they are not actually prepared via smoking.
The defendant argued that “Smokehouse” refers to the flavoring only, but Judge Cronan concluded that, while a “close call,” the allegations were enough to survive the motion:
Continue Reading In “Close Call,” Judge Cronan Allows Consumer Fraud Claims to Proceed Over “Smokehouse” Branded Almonds that Are Not Actually Smoked
Judge Pauley: Despite 40,000 Words of Summary Judgment Briefing, Photo of Snoozing Mouse Is Enough to Show There Are Fact Issues
In an opinion yesterday, Judge Pauley denied summary judgment in a case alleging that a certain rodent repeller devices are ineffective, contrary to the defendant’s allegedly false representations.
He noted that the parties had filed over 40,000 words in briefing the issues, but that three photos (including the one below) were sufficient to decide the…
Judge Engelmayer Rejects Claim That “Diet” Label on Soda Implies Weight Loss
In an opinion Thursday, Judge Engelmayer dismissed claims by plaintiffs who alleged that they were defrauded into buying Diet Pepsi because they thought that the word “Diet” implied it would help with weight loss. He found that, in context, the plaintiffs’ alleged inference was not a reasonable one, since the term “Diet” refers to the…
Judge Oetken Refuses to Dismiss Complaint Alleging that Applebee’s Tabletop Tablets Force Patrons to Tip
In an opinion Friday, Judge Oetken refused to dismiss a putative class action brought by Applebee’s patrons who allege that the tabletop computer tablets at the Broadway and Times Square locations force customers to leave a minimum tip of either 15% or 18%, and thereby deceive customers into believing tipping is mandatory, in violation of New York’s consumer protection laws.
The defendants argued (among other things) that the social norm of leaving a tip was grounds to dismiss the case, but Judge Oetken disagreed:
Continue Reading Judge Oetken Refuses to Dismiss Complaint Alleging that Applebee’s Tabletop Tablets Force Patrons to Tip
Judge Forrest: Vegetarian Who Unwittingly Bought Fries Cooked in Beef Tallow Not “Injured” for Purposes of NY’s Consumer Fraud Law
In an opinion today, Judge Forrest dismissed a class action brought by a vegetarian who alleged she bought fries and mozzarella sticks at Buffalo Wild Wings without knowing that they were cooked in beef tallow.
Judge Forrest found that, under the New York consumer protection law at issue, N.Y. Gen. Bus. L § 349,…
Supreme Court Grants Cert in Case Challenging New York’s Credit Card Surcharge Ban
Today the Supreme Court granted certiorari in a First Amendment challenge to New York’s ban on credit card surcharges. The law allows merchants to charge different prices for cash and credit card purchases, but, according to the plaintiffs, it violates the First Amendment by prohibiting them from calling the extra charge for credit card purchases…
Judge Román, Disagreeing With Eighth Circuit, Rules Suit Over “Organic” Label Not Preempted
In an opinion yesterday, Judge Román denied a motion to dismiss a class action accusing the makers of “Earth’s Best” branded foods of falsely labeling certain products as “organic.” The defendants argued the claims were preempted by the Organic Food Production Act (or, OFPA), which defines what foods can be labeled “organic,” and prohibits the sale of products labeled “organic” unless approved by a “certifying agent.” In an earlier case, the Eighth Circuit found similar claims preempted because (among other reasons) state law claims challenging “organic” labels would create the risk of “conflicting interpretations” and would “directly conflict[] with the role of the certifying agent.” Judge Román disagreed, finding that the risk of “divergent” views not enough to result in preemption:
Continue Reading Judge Román, Disagreeing With Eighth Circuit, Rules Suit Over “Organic” Label Not Preempted
Judge Román Allows Suit Challenging “Active Naturals” Label on Aveeno Skin Products
In a decision today, Judge Román denied Aveeno’s motion to dismiss a class action challenging its use of the phrase “Active Naturals” on product labels and advertisements for skin care products containing mostly synthetic ingredients. He ruled that claims under NY BCL § 349, for deceptive trade practices, could proceed, despite the fact that…