Misbranded Blog

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Misbranded is Patterson Belknap’s blog covering false advertising litigation—both consumer class actions and competitor suits—with a particular focus on FDA-regulated products (foods/beverages, pharmaceuticals, cosmetics, and dietary supplements).  Writing from the industry perspective, we provide timely updates on important cases, surveys of litigation trends, and in-depth analyses of “hot” legal issues.  Our firm pioneered the modern practice of false advertising law more than 40 years ago, bringing the first competitor suits under the Lanham Act.  In the decades since, we have continued to practice at the cutting edge, handling many of the field’s most groundbreaking cases on behalf of the nation’s best-known businesses.  Today, led by Steven A. Zalesin, our team advocates creatively, strategically, and efficiently on behalf of our clients at all phases of litigation, from pre-complaint demands to Supreme Court appeals.

Proving Retail Sales Figures In Consumer Class Actions: Different Approaches Lead To Very Different Results

To prove damages in a consumer class action, the named plaintiff must show—among other things—how many units of the defendant’s product were purchased by consumers in the relevant state (or states).  This is easier said than done.  Manufacturers generally keep records of their own wholesale transactions—i.e., how much product they shipped to distributors or large retail chains.  But they generally don’t have direct visibility into sales at the retail level, since they aren’t a party to those transactions.  If not all of the product sold at wholesale ends up being purchased by consumers, manufacturers’ records may not reflect this.  Likewise, if the product that a manufacturer ships to an address in State A (e.g., a regional distribution center) ends up being moved to State B before reaching store shelves, manufacturers’ records will not reflect this either.  What, then, is a class-action plaintiff to do?

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Consumers Who Seek Injunctive Relief: The Limited Scope of Davidson v. Kimberly-Clark

In consumer cases alleging product mislabeling, one frequently litigated question is whether the plaintiff has standing to seek an injunction of the labeling practice that he or she claims is misleading.  Over the past decade, consumer protection defendants have often won on this issue by demonstrating that the plaintiff is at no risk of future injury.   But last year, in Davidson v. Kimberly-Clark Corp., 889 F.3d 956 (9th Cir. 2018), the Ninth Circuit made this issue tougher for defendants, adopting an exceptionally broad view of plaintiffs’ standing to seek injunctive relief in mislabeling cases.  Below, we discuss the aberrant holding in Davidson, and how Ninth Circuit defendants may still be able to distinguish its facts to defeat a claim for injunctive relief.

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