Kelley Drye

Practices 

Contact Information

Christie Grymes Thompson
Practice Chair

Email
Washington, D.C.
Phone: (202) 342-8633
Fax: (202) 342-8451

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Consumer Class Action Defense

The "Piggyback" Class Action

An analysis of the plaintiff’s burden of proving falsity or deception.

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Kelley Drye’s Advertising and Marketing practice group defends clients in consumer class actions throughout the country, deploying an experienced team that is recognized for creative and vigorous defense strategies. The firm has defeated class certification in a number of recent client cases and has negotiated favorable settlements in many others. Our legal team has defended clients against class actions involving cancellation fulfillment policies, pricing practices, call monitoring practices, promotional rebate policies, e-mail marketing campaigns, and a range of other issues. Your matter receives the benefit of Kelley Drye’s recent experience in handling class action matters for clients in a range of industries, including consumer products, technology, telecommunications, financial services, and food, drug and dietary supplements.

Representative Experience

  • Represented a leading video-game developer in a consumer class action involving  alleged claims of violation of  California’s false advertising and unfair competition laws in connection with the release of one of the most hotly anticipated video game releases in history. Obtained dismissal of the suit at the pleading stage.

  • Represented Hydroxatone, the maker of cosmetic consumer products in a class action lawsuit. The suit claimed that Hydroxatone’s marketing was misleading and asserted claims of unjust enrichment, breach of contract and violation of the New Jersey Consumer Fraud Act. Negotiated a favorable settlement which was upheld during a fairness hearing over a vehement challenge by an objector.

  • Represented a global food company in three class actions filed against the company, arising out of its advertising for a probiotic product.  The first case was dismissed. In the second, a New Jersey court ruled in favor of our client, finding that prior substantiation does exist for the product’s health benefit claims.  A Florida court denied the plaintiff’s motion to certify a class in the third suit.

  • Successfully obtained dismissal of a class action lawsuit concerning alleged violations of the Telephone Consumer Protection Act (TCPA).  The case centered on third party liability issues for this Fortune 100 producer of consumer products and aerospace systems.

  • Convinced the California Court of Appeal, 1st Dis. to compel a putative class action, which accused a wireless carrier of misrepresenting cell phone rates to consumers, to be settled through arbitration, citing the U.S. Supreme Court’s 2011 decision in AT&T Mobility LLC v. Concepcion.

  • Successfully represented a cooperative association of 450 family-owned dairies, maker of the best selling brand of butter in the Western U.S., in a class action filed in the Los Angeles Superior Court, alleging that the labeling of certain of their dairy products were false and misleading in violation of the California Unfair Competition statutes, as well as the Consumer Legal Remedies Act.  Judge dismissed the case with prejudice on federal preemption grounds.

  • On behalf of a beverage manufacturer, obtained favorable resolution of claims brought under California Business and Professions Code Section 17200 and 17500 regarding the packaging and labeling of energy drinks.  The plaintiff, on behalf of a class of all purchasers of our client's products, alleged that the labeling of our client’s beverages contained false and misleading information.  Settled at the pleading stage.

  • On behalf of a leading online brokerage company, obtained dismissal at the pleading stage of a class action on a Rule 12 motion in the Central District of California alleging claims for false advertising and unfair business practices in violation of California’s Business & Professions Code § 17200 regarding the assessment of online broker fees.  The dismissal of all claims was affirmed by the Ninth Circuit.

  • Represented a major online floral retailer in state and federal courts in California against claims for false advertising and unfair business practices in violation of California's Business & Professions Code § 17200 regarding the imposition of delivery charges. The case was favorably resolved during the pendency of a class certification motion.

  • Represented a major motion picture studio in a dispute with a company that makes "mockbuster" movies, alleging that the business practices were in violation of California's Business & Professions Code § 17200.

  • Worked to secure insurance coverage for a client in connection with a class action brought against the studios and talent agencies by Hollywood writers in an age discrimination suit.

  • Represented an organization that provides recreational access to elephants in a false advertising case and secured the dismissal of a false advertising claim on a 12(b)(6) motion.

  • Defended several entertainment lawsuits that included unfair competition and false advertising claims, in connection with the failure to credit joint copyright holders or trademark owners with regard to entertainment works.

  • Defending a national bank against Unfair Competition Law (UCL) and Consumers Legal Remedies Act (CLRA) claims related to commercial debt cancellation services.

  • Represented a sporting goods retailer in the Western District of Kentucky in two putative class actions alleging a “bait and switch” advertising campaign.

  • Defended a marketing group in a putative class action challenging the cancellation fulfillment policies and practices.

  • Obtained summary judgment for defendant, a call center and debt collection company, in putative class action challenging ordinary course of business call monitoring practices under the Fair Debt Collection Practices Act (FDCPA) and California privacy statutes.

  • Defeated motion for a preliminary injunction in a purported class action challenging a dietary supplement maker’s advertising claims for one of its products. Plaintiffs sought to enjoin the company’s allegedly false advertising for the product throughout California, arguing that the advertising representations were false and deceptive, and violated the state’s “baby FTC Act.”

  • Obtained dismissal of a putative class action challenging coupon redemption policies for a children’s apparel retailer.

  • Obtained dismissal of a putative class action suit alleging violations of the Fair Credit Reporting Act (FCRA) in connection with prescreened marketing offers for a wireless communications company.

  • Successfully defended a mail order retailer against a consumer class action complaint that attacked its e-mail marketing campaign. Importantly, both the trial and appellate court rejected the plaintiff’s claim that he was damaged by mere receipt of the unsolicited e-mail advertisement on account of the time that he wasted to open and read it online and on account of any potential increase in Internet service charges by his Internet service provider as a result of the volume of unsolicited e-mail advertisements.

  • Kelley Drye has led the defense of more than 30 class action cases brought against a leading wireless carrier. In several related matters, we successfully petitioned for multidistrict litigation over the objections of several noted plaintiff class action firms, transferring over twenty cases to the Western District of Missouri.

  • Kelley Drye has represented two Internet service providers in several class action suits filed in Florida, California, Oklahoma, Illinois, and New Jersey. Not one case advanced to class certification, let alone a decision on the merits.
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Publications
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December 2013

Food and Consumer Health Product Claims Substantiation: A Comprehensive Guide

Food and Drug Law Institute Resources

Events
All

April 24, 2014

Class Actions and a Collision With the NAD

Association of National Advertiser’s Advertising Law & Public Policy Conference

Additional Resources