Some years ago, a website reported that an engineer made a robot that prevents crashes out of the body of a BMW Mini Cooper r50. The website displayed a video of the robot stopping a car from crashing into a barrier and other websites followed suit. As you’ve probably guessed, the whole thing was a hoax. The robot wasn’t for sale, the car was — and no one got angry. However, things don’t turn out as amicably in regard to contemporary ads that skate so close to the edge of truth they draw the fire of regulators and class-action plaintiffs duped by their false claims.
Consumer class-action suits
Consumers who claim to have suffered damages from a false or misleading advertising campaign cannot sue under the Lanham Act. Only a company competing with the offending advertiser can bring a Lanham Act suit. Consumers have a different set of arrows in their business litigation quivers. Private plaintiffs bring class action suits that glide along on the tail winds of FTC and FDA enforcement actions. Dannon, Coke, Nestlé and Reebok all have found themselves on the wrong end of class actions brought in the wake of FTC consent orders. If you are a business or a consumer who has been harmed by false advertising, or an advertiser threatened with a suit, an Atlanta business litigation lawyer can effectively protect your interests.
Notably, a court will not certify a class unless it is persuaded that:
- Plaintiffs are so numerous that filing individual suits is not practical.
- Claims common to all class members predominate.
- The named plaintiffs, the class representatives, have claims and defenses that are typical of those in the respective class.
- Named plaintiffs and attorneys are competent to adequately represent the interests of the class.
Plaintiff suits usually do not go to verdict
Defendants often have effective defenses to class action suits at the certification stage, including typicality and predominance, until the class of plaintiffs is forced to withdraw. This is true because it is often difficult for plaintiffs to demonstrate typicality — which means that all the members of the class relied upon the defendant’s misrepresentations. Plaintiffs may also be challenged by the requirement of proving predominance — that the entire class had been injured by the false claim.
Yet defendants have paid out some very large settlements
While the courthouse has not proven hospitable to class action litigation of this nature, litigants and counsel have not entirely lost out. Defendants will sometimes choose to settle these cases. Dannon paid $45 million in damages in a class action settlement, and agreed to limit its health claim hyperbole.
Each step of the way, the litigators at Hartman Simons and Wood LLP use practical and productive tactics to maximize your effectiveness in the courtroom and at the negotiating table.