Consumer Products and Services Litigation
Sidley has extensive experience defending many types of consumer class actions and non-class representative actions in state and federal courts throughout the country, at trial and on appeal. Our consumer product and services clients draw on Sidley’s deep experience in areas such as products liability, complex commercial, intellectual property, privacy law, employment, real estate, FDA regulatory, and antitrust. Our lawyers have broad experience defending claims against all businesses in the chain of commerce for consumer products including suppliers, manufacturers, distributors, retailers, and consumer services such as call centers, warranty providers, and e-commerce sites.
“Sidley Austin LLP’s ‘excellent’, ‘highly experienced’ team gives ‘terrific’ advice on litigation strategy. Team members demonstrate ‘good industry knowledge’ as well as ‘deep expertise’ in the growing field of consumer fraud.”
Legal 500 US, 2013
We have significant experience in defending claims brought under:
- State unfair and deceptive acts and practices (UDAP) statutes
- False advertising and marketing laws
- Consumer privacy statutes, including TCPA
- California’s unique toxic warning law known as Proposition 65
- Warranty claims, including the Magnuson Moss Warranty Act
- Common law theories of negligence, strict liability, fraud, breach of contract, breach of express warranty, breach of implied warranty, and misrepresentation.
We have adopted an integrated approach to helping clients manage risks that includes counseling and a team approach to engagements that combines regulatory lawyers who provide ongoing compliance and technical advice with litigators who have specific experience in state unfair and deceptive trade practice statutes, class action defense, and defense of complex litigation. Our reputation and good working relationships with governmental agencies have also enabled us to resolve governmental investigations without the filing of formal actions against our clients and, when that was not possible, to negotiate settlements and consent decrees on favorable terms with minimal adverse publicity to our clients.
We have defended actions brought by private plaintiffs, state Attorneys General, District Attorneys, consumer protection agencies, and public interest groups. Utilizing our consumer fraud defense experience, we have defended actions involving a wide array of consumer products and services, including food, beverages, drugs (prescription and OTC), dietary supplements, cosmetics, apparel, fashion accessories, appliances, pet products, pest control services, construction and building materials, home decor, furniture, sporting and recreational equipment, vacations, restaurants, coupon promotions, telecommunication and internet services, faxed advertisements, and all types of on-line commerce.
State Unfair and Deceptive Acts and Practices (UDAP) Statutes
We have experience with various states’ unique consumer protection laws, including California Business and Professions Code Section 17200. We have successfully resisted class certification in these types of lawsuits through aggressive discovery practice, negotiation. and innovative legal arguments. We have defended such class actions in both federal and state courts across the country, at trial and before numerous appellate courts, including the United States Supreme Court. Our UDAP experience includes successfully handling statewide, nationwide, and international class action matters in some of the largest class actions ever filed in the United States courts, involving tens of millions of putative class members and billions of dollars in alleged damages.
- National coordinating counsel to AstraZeneca in eight related national class actions brought by consumers and third-party payors involving the marketing of its leading prescription drug, Nexium, challenging the promotion of the drug to physicians and consumers under various state consumer protection laws, including Section 17200.
- Defeated class certification in a putative class action asserting breach of contract, fraud, and unfair business practices (Section 17200) claims against a large-on-line food ordering service.
- Obtained summary judgment for an oil & gas company in two concurrent lawsuits, a putative class action of all branded service station franchisees in California and a non-class action brought by nearly two dozen franchisees, alleging a violation of the franchisees’ right of first refusal to purchase their stations and various purported unfair business practices in the pricing of gasoline and the implementation of the franchise agreement. Both summary judgments were affirmed on appeal.
- Successfully resolved through a class action settlement claims brought against a dietary supplement company under the consumer protection statutes in California, Massachusetts, and Illinois related to the sale and marketing of glucosamine dietary supplements.
- Representation of Pfizer, Inc. in a series of cases in California brought under Section 17200 (and similar actions in other states), involving three of its drugs, asserting a variety of claims about the manner in which drugs are marketed, including alleged non-disclosures and deceptive practices.
- Successfully resolved through class action settlement claims against a cosmetic company brought by putative statewide classes of consumers who purchased topical cellulite cosmetic products.
- Obtained dismissal of a putative class action filed in the United States District Court for the Southern District of New York challenging the labeling and marketing of Costco’s shrimp trays.
- Obtained summary judgment for a pharmaceutical company in the marketing of its probiotic supplement on the, what was at that time, still-developing theory that private plaintiffs have no claim for lack of substantiation of advertising claims.
False Advertising and Marketing Laws
Sidley has extensive experience in these types of cases which arise out of allegations of fraud and often involve a convergence of legal, business, regulatory, and reputational issues. Plaintiffs often seek full refunds of the purchase price of the products at issue. We also have represented clients in connection with false advertising claims both in other adversarial proceedings, including challenges before the National Advertising Division of the Council of Better Business Bureaus.
- Obtained dismissal of putative class action against Saks 5th Avenue under the Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL) and False Advertising Law (FAL) regarding pricing of clothing at Saks’s Off 5th outlet stores.
- Obtained summary judgment for Schwabe North America and Nature’s Way Products in a putative consumer class action under California’s Consumer Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and False Advertising Law (FAL), as well as breach of warranty, for alleged false advertising on certain homeopathic products.
- Obtained dismissal without leave to amend in a putative class action filed against Kimberly-Clark in which plaintiff alleged advertising and marketing of the company’s flushable moist wipes products was misleading and in violation of California’s Unfair Competition Law (Section 17200), False Advertising Law (Section 17500), and Consumer Legal Remedies Act (CLRA).
- Used early motions and a media strategy to convince plaintiff to voluntarily dismiss claims against Taco Bell and its parent Yum! Brands attacking the core ingredient of its restaurant business, its seasoned ground beef.
- After Sidley filed a motion to dismiss raising, among other things, preemption, plaintiff voluntarily dismissed a case challenging labeling on a product regulated by FDA.
- Secured dismissal on the pleadings of a putative nationwide class action alleging state consumer false and deceptive advertising claims, along with warranty claims, relating to the labeling of extra virgin olive oil products.
- Obtained dismissal of a putative class action alleging claims arising under California laws on gift certificates, liquidated damages, unconscionability, Section 17200 (unfair business practices), Section 17500 (false advertising) and the Consumer Legal Remedies Act.
- Defeated certification of a putative nationwide class alleging breach of contract and warranty claims on behalf of purchasers of floral arrangements ordered online.
- Obtained dismissal on the pleadings (with no appeal) in a putative class action in which the plaintiff’s claims of false advertising of a vitamin supplement were based on a decision by the National Advertising Division of the Better Business Bureau.
- Succeeded on motion to strike class allegations at pleadings stage and obtained dismissal of a putative class action in which the plaintiff alleged that an OTC drug was effective longer than its stated “expiration date,” thereby allegedly causing the plaintiff to discard product prematurely and lose money.
Consumer Privacy Statutes, Including TCPA
We have handled putative class actions alleging violations of numerous state and federal consumer privacy laws including the TCPA, FACTA, the Song-Beverly Credit Card Act, California’s Shine the Light Law, California Invasion of Privacy Act (“CIPA”), and claims under state constitutional rights to privacy.
- Negotiated several favorable individual plaintiff settlements in putative class actions against consumer product manufacturers and retailers in invasion of privacy matters arising out of California Penal Code Section 630 et seq.
- Lead counsel in multiple putative class actions brought against national consumer products retailers alleging privacy violations of the Song-Beverly Credit Card Act in connection with credit card transactions.
- Representation of national retailers in putative consumer class actions arising out of data breaches.
- Representation of companies in TCPA cases arising out of allegedly unsolicited faxes, text messaging and autodialer/artificial voice calls to cellular telephones.
Sidley has represented a broad array of consumer product manufacturers, as well as California-based operating entities, in defending claims under California’s Proposition 65. We have negotiated innovative settlements, prevailed at trial and in the California Court of Appeals, and counseled entities on how and when to challenge the listing of new chemicals. The consumer products cases have concerned everything from chocolate to vitamins to handbags to furniture.
- Lead trial counsel for two dietary supplement companies in a Proposition 65 lawsuit asserting failure to warn with respect to certain dietary supplements. Court ruled in favor of dietary supplement companies on all issues in the bifurcated trial.
- Represented several furniture manufacturers and retailers in one of the largest Proposition 65 enforcement waves, ultimately encompassing more than 200 companies, against a single industry.
- Representation of seven vitamin manufacturers and liaison counsel to all defendants in the industry in a Proposition 65 lawsuit brought by the California Attorney General and six District Attorneys against 45 defendants.
Warranty Claims, Including The Magnuson Moss Warranty Act
Federal and state warranty laws raise several complicating issues for products sold nationally and internationally, to consumers and businesses alike, and through diverse sales forces. Sidley provides valuable guidance to clients to enable them to manage their risk and exposure while complying with these laws, and, where needed, aggressively defends litigation challenging compliance.
- Assist companies in drafting warranty language to properly limit scope of exposure.
- Advise international companies on domestic warranty law issues and interplay with other consumer protection statutes and competition laws.
- Challenge putative class claims attempting to convert consumer product on-label advertising into written warranties under Magnuson Moss Warranty Act and common law express and implied warranties.