Consumer Fraud Class Action Developments

SCOTUS: Rule 68 Offer Does Not Moot Class Action

Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (2016)

The Supreme Court held that defendants cannot moot putative class action claims by making an offer of full relief to individual plaintiffs. "[A]n unaccepted settlement offer has no force," Justice Ginsburg wrote for the Court. "Like other unaccepted contract offers, it creates no lasting right or obligation. With the offer off the table, and the defendant's continuing denial of liability, adversity between the parties persists." In so holding, the Court distinguished decisions where plaintiffs had "received full redress for the injuries asserted in their complaints" from those (like the present case) where plaintiff was not actually provided any relief. Indeed, the Court specifically noted: "We need not, and do not, now decide whether the result would be different if a defendant deposits the full amount of the plaintiff's individual claim in an account payable to the plaintiff, and the court then enters judgment for the plaintiff in that amount. That question is appropriately reserved for a case in which it is not hypothetical." View the decision.

"Specifically Worded Statement" Necessary to Certify Class Action Alleging Misrepresentations in Advertising

Cabral v. Supple LLC, No. EDCV-12-85-MWF(x) (C.D. Cal. Jan. 7, 2016)

The Ninth Circuit previously vacated an order granting class certification, finding that plaintiff failed to establish the "critical" requirement of a case alleging misrepresentations in advertising: namely, that the misrepresentation in question was made to all class members. Plaintiff sought to renew her motion for class certification, attempting to limit the class to consumers who viewed defendant's infomercials (which, plaintiff maintained, included various false statements). The court denied plaintiff's request, rejecting the theory that a class could be certified without showing that a "specifically worded statement" was made to the entire class. View the decision.

Consumers' "Willingness to Pay" Is an Inadequate Measure of Classwide Harm

In re NJOY Consumer Class Action Litig., No. CV 14-428-JFW (C.D. Cal. Feb. 2, 2016)

Plaintiff claimed that manufacturer NJOY engaged in a false and misleading advertising campaign conveying the message that its electronic cigarettes are safer than regular tobacco cigarettes and that NJOY omitted material information from its packaging, including both an ingredient list and the...