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

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

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

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

A group of merchants sued the New York Attorney General last month to enjoin a law they claimed prohibited them from using the label “surcharge” to describe additional fees for credit card purchases (see our prior post).  The Attorney General Friday moved to dismiss, and argued that the merchants had misinterpreted the law:
Continue Reading NYAG Defends Credit Card “Surcharge” Law, Claims It Applies Only When Surcharge is Hidden