Nutella Case Speaks to Limits on Scope of Class Actions6 Mar, 2012 By: Jeffrey Richter, John Waller, Blank Rome LLP
As noted in the December 2011 issue of the DRMA Voice, the marketer of Nutella recently succeeded in substantially limiting the size of the proposed putative class of purchasers of its product by arguing that not everyone in the proposed class had been exposed to the alleged misrepresentation. An equally important lesson to be gleaned from this case is that nationwide marketers who find themselves sued for alleged violations of a single state’s unfair competition laws need not necessarily fear that they will always need to defend their conduct in a nationwide class action based upon that single state’s unfair competition laws.
In the In re Ferrero case, the plaintiffs sought to certify a nationwide class of purchasers of Nutella who had allegedly been exposed to misleading labeling and advertising about the benefits of consuming Nutella. The plaintiffs alleged that the marketer promoted Nutella as being healthy and beneficial to children despite its high levels of fat and sugar.
The named class representatives were all California residents who viewed the advertisements for Nutella in California and thereafter purchased Nutella in California. No doubt seeking to take advantage of California’s consumer-favorable unfair competition laws and desiring to maximize the size of the putative class, the plaintiffs asked the court to certify a nationwide class of purchasers of Nutella and to apply California’s unfair competition laws to the entire class.
Although the court concluded that it was appropriate to certify a class consisting solely of California-based purchasers of Nutella, it refused to certify a nationwide class of purchasers of Nutella notwithstanding that the same advertisements and label were used throughout the United States. The court noted that the plaintiffs made no showing that non-California purchasers saw the allegedly misleading advertising for Nutella in California, purchased Nutella in California, or that their claims arose out of conduct that occurred in California. The court, following established precedent that California’s unfair competition laws embody a presumption that they do not apply to conduct occurring outside of California, concluded that it was not appropriate to apply California’s unfair competition statutes to non-California residents in this case.
Although nationwide marketers may not always be as fortunate as the marketer of Nutella in limiting the scope of the putative classes that they face to consumers located in a single state – and may occasionally desire to resolve all potential claims about their products or the advertising or labeling therefore in a single lawsuit rather than in multiple lawsuits – the Nutella case is a good reminder that even marketers that run the same advertisements nationwide need not always fear that a single state’s laws will be applied to their conduct nationwide. Although the Nutella decision was based upon specific case law interpreting California’s unfair competition statutes, if faced with an attempt by an artful plaintiff to apply one state’s laws to residents of other states, carefully review the applicability of that state’s laws to residents of other states before assuming and accepting that they are correct.
|Case Study: DRMetrix and SciMark - The True Top 50|
|Case Study: Marketing Architects - Leads Somnetics International With CPAP Campaign|
|White Paper: InterMedia Advertising - The 2016 Political Advertising Environment|
|Warner Bros. Settles FTC Charges It Failed to Adequately Disclose Payments to Online Influencers 9 Aug, 2016|
|This Summer, Don’t Reach for the Rings 9 Aug, 2016|
|7-Eleven May Be Liable for Mislabeling Food Packages 9 Aug, 2016|
|Supreme Court Hands TCPA and Privacy Defendants a Gift 12 Jul, 2016|
|Misplaced Modifiers? 12 Jul, 2016|
|July TV Results Show a Mix of Gains and Losses 24 Aug, 2016|
|T-Mobile in Hot Water Over Slowed Hotspots 24 Aug, 2016|
|Sprint Ads Draw BBB Ad Group’s Attention 24 Aug, 2016|
|Mozilla Supports New Cable Box Rules 24 Aug, 2016|
|Brite-Strike, TELEBrands Sue Emson Products For Patent Infringement 24 Aug, 2016|
|TV Ad Sales Manager - Continuum Media - New York CIty, NY|
|Continuum Media is looking for a National Sales Manager to be based out of our New York City office. This person will be responsible for selling television advertising on cable platforms and broadcast stations to new and existing clients. Identifies and makes cold calls on prospective clients, ...|
|Account Executive - Consumer Attorney Marketing Group - Woodland Hills, CA|
|Consumer Attorney Marketing Group (CAMG) is an advertising agency that works exclusively with law firms. We provide firms with marketing, creative and media buying services to deliver direct, measurable leads. We combine media buying expertise, industry experience and intensive analytics to deliver ...|
|Online Marketing Specialist, Traffic Acquisition - SmarterTravel - Boston, MA|
|Why this role is awesome:You?ll use your strong online marketing experience to drive traffic acquisition for the Smarter Traveler business. You have at least 1 year experience of direct response marketing.You will create opportunities, both for the company and for yourself.In this role, you WILL ...|
|Direct Response Marketing VP - Ideal Living - Sherman Oaks, CA|
|Job purposeMarketing VP is responsible for developing, implementing and executing strategic marketing plans for dedicated Ideal Living brands in order to attract new/potential customers and retain existing ones.Job Posting for advertisement seeking Marketing VPJob Posting: We are an exciting, ...|
|Membership Production Artist/Designer - The Nature Conservancy - Arlington, VA|
|OFFICE LOCATIONArlington, Virginia (VA)POSITION SUMMARYThe Membership Production Artist/Designer manages and implements creative projects that advance Membership?s fundraising and marketing strategies. S/he is directly responsible for projects and managing project budgets.ESSENTIAL FUNCTIONSThe ...|