AD-ttorneys @ law – December 2021 # 3 | Baker

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Complainants’ bar waving another maddening flag in Olé

Repeat of original Cali case makes New York claims

Qué Paso?

In May, we covered a case that raised a bunch of interesting questions about the original claims.

The case, Juan De Dios Rodriguez v. Olé Mexican Foods, was released in late 2020 in the Central District of California, and at first glance, it seemed simple.

Rodriguez took offense at the packaging of several products from Georgia-based Olé Mexican Foods. Despite the “Made in the USA” label on the front of the products, the other labels – “El Sabor de Mexico! (“A taste of Mexico!”), The brand name “La Banderita”, the use of the word “authentic” and the Spanish expression “Tortillas de Maiz” – led him to believe that the tortillas in question had been cooked in Mexico. It was, according to him, misleading advertising, pure and simple.

Background el Rey

Olé responded with a motion to dismiss as quickly as possible, just one month after the complaint was filed. The company argued that reasonable consumers would not be mistaken about the origin of the tortillas, pointing out that the packaging did not contain any specific geographic claims, revealed the ‘United States’ origin of the products, and’ simply referred to[d] the cuisine, the culture, the history, the people, the spirit or the feeling of a country or a place.

Not so fast, the court responded in an order that every marketing department should pay attention to.

The court ruled that a reasonable consumer could be led to misunderstand the origin of the tortillas given “the context of the entire label or advertisement”. The tribunal noted that there was “a likelihood that a significant portion[ofthegeneralpublicortargetedconsumersactingreasonablyinthecircumstancescouldbemisled”inparticularinthelightofthereferencescontradictingthefrontofthepackaginginMexicoandintheUnitedStatesofAmericaandtheUnitedStatesofAmericapackagingculture[dugrandpublicoudeconsommateursciblésagissantraisonnablementdanslescirconstancespourraientêtreinduitsenerreur»enparticulieràlalumièredesréférencescontradictoiressurledevantdel’emballageauMexiqueetàlaculturemexicaineetaudosdel’emballage«FabriquéauxÉtats-Unis”Réclamer

The motion to dismiss was dismissed.

Takeaway meals

The contextual nature of the alleged deception is the most important question, of course; this “Made in USA” label did not earn Olé an exit card. Instead, he was overshadowed by the other posts. There is also a broader question of “authenticity”; the family that runs the business is deeply rooted in Mexico and, as minority representation increases in the cultural landscape, new arguments may emerge regarding the blurred lines between “origin” and “heritage”.

But here’s an even more chilling conclusion: The same attorney representing Rodriguez in this pending case just filed another far too similar case in the Western District of New York.

Perhaps the legal challenges raised against Olé have not gained momentum in the series of Mars Confectionary class actions that we have been talking about for over a year. But that should worry Olé and any other company that relies on an aesthetic based on iconography from another culture. Olé is still fighting the first case in court, and now he has another to deal with in a new jurisdiction.

Stay tuned.

Campbell’s juices attacked for their sweetness

But does not mentioning the harmful effects neutralize the health claims?

Is this a way to end the vacation?

If you’ve ever worried about your waistline, blood pressure, blood sugar, or cholesterol levels, avoid Kyle Banta Yoshida’s class action lawsuit against Campbell Soup Company, filed last month in the Northern District of California. .

It is filled with a litany of harms caused by sugary drinks. “People who consumed 1 or more soft drinks per day,” the complaint states, “. . . had a 48% higher prevalence of metabolic syndrome than occasional drinkers, those who drank less than one soft drink per day. Metabolic syndrome, if you didn’t know, has symptoms of “high blood fat and triglycerides, high cholesterol, high blood pressure, and excess body fat, especially in the body. stomach “.

Along with metabolic diseases, the complaint establishes links between sugary drinks and cardiovascular disease, liver dysfunction, diabetes and what is called “all-cause mortality”.

This is where we stopped reading.

I could have Hadda …

Yoshida is targeting a line of Campbell’s Juice Blends drinks, which he says contain between 10 and 28 grams of sugar, depending on individual flavor (we’re talking about “acai mixed berry”, “berry bliss”, “orange carrot” , “Healthy greens” and other flavors).

Because Campbell’s Claims Juice “INCREASES YOUR MORNING NUTRITION” – not to mention one of the flavors is named “healthy greens” – Yoshida claims the company is misleading consumers by omitting the negative effects of sugar. on human health. Yoshida and her proposed group accuse Campbell’s of violating Cali’s Unfair Competition Act, Deceptive Advertising Act and Consumer Legal Remedies Act.

Takeaway meals

The interesting question in this case: Does failure to mention or address the alleged negative health effects of sugary liquids make existing health claims misleading?

If drink ingredients confer health benefits, perhaps the change required is simply an acknowledgment of the alleged harm that can be caused by sugary drinks – an interpretation that would have wide-scale ramifications for companies that produce the food. healthy ”.

Fake debt collectors use robocalls to search for victims

The FTC banned them, but will that stop future shady innovations?

Check receipts

People go to extremes to get out of debt.

Check out these extreme strategies – people rent themselves out as billboards, throw away their air conditioners, or dine exclusively on ramen noodles.

But the victims of a telemarketing scam have surely gone a little too far. According to the Federal Trade Commission, these consumers began to pay off debts they had already paid off.

Consumers were contacted by (allegedly) predatory National Landmark Logistics, a South Carolina-based automated call debt collector, whose representatives left “misleading messages claiming consumers face impending lawsuits – prosecution or even arrest – for unpaid debts. “

This despite the fact that in some cases debts had already been settled, or did not exist at all.

Training net

National Landmark has been drawn across a wide range in 2020 by commission and embarrassment (we think it’s the plural) of federal and state authorities. The prosaically named Operation Corrupt Collector cracked down on debt collectors who used abusive and threatening tactics to collect debts they were not entitled to collect (including, yes, non-existent ones).

The problem is significant: The joint operation included 50 enforcement actions by the commission, including several against collectors like National Landmark, which has taken a buckshot approach to robocall technology. Their logic? If you make a lot of calls, you’ll find enough people who will answer your outrageous fabrications to justify the cost.

The callers posed as lawyers or arbitrators, “and used consumers’ personal information to convince consumers that the threats were real.”

Takeaway meals

Like others before it, National Landmark is now banned from the debt collection industry. The company was also required to shell out more than $ 12 million in cash as well as cars and real estate.

Typically, auto callers are tricked into selling legitimate goods or services using problematic technology. But National Landmark and its ilk represent a new wrinkle in robocall violations: the use of personal data to perpetuate a scam via the robocall campaign.

As high quality personal data becomes more and more available, we can expect scams that were once narrowly targeted to become mass messaging weapons. A brave new world for the aspiring fraudster.

Subscription add-ons enable growth in tight markets

But every new service is a compliance risk in itself

Colossus

The New York Times is on the rise. Most print and ink news institutions are struggling to cope in the Internet age (and seriously, haven’t they had some time to adjust at this point?). But not the Times.

Sources report that The Old Gray Lady has nearly 8.5 million subscriptions, of which 7.6 million are digital. That alone would demonstrate amazing success in today’s media industry. But under the hood, it’s the add-on subscriptions that are fueling enthusiasm for The Times’ future as a digital platform.

All suitable applications

The Times, informed no doubt by a shrewd understanding of its subscriber demographics, added three subscription services that are, quite simply, booming.

NYT Cooking and New York Times Games are cleverly leveraging the newspaper’s legacy offerings – its recipes and the famous crossword puzzle. Wirecutter, a review site purchased by The Times in 2016, was a popular and respected site prior to its acquisition; it can now take advantage of the incredible reach and reputation for probity of its parent company (even if the opinions are independent).

While attracting existing Times subscribers, each attracts its own audience, which in turn drives new subscriptions to the company’s journalistic core.

Takeaway meals

In a cutthroat internet ecosystem, building services out of strong but secondary assets and capabilities is a smart way to grow. But after all the cheerleading, allow us a moment Debbie Downer.

Businesses should remember that new services, which come with new fees and offer new content and functionality, require their own consent requests and separate legal notices. It can be tempting to add new offerings to existing user agreements, but not treating each add-on as a separate service is problematic.


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