October 25, 2020

Volume X, Number 299

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October 23, 2020

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The Fun Did Stop for Pringles False Advertising Class Action

On January 31, 2020, Southern District of New York Judge Alvin Hellerstein denied Plaintiff Matthew Marotto’s motion for reconsideration of an order denying class certification in his lawsuit against Pringles potato chip maker Kellogg over allegedly misleading labeling of Pringles cans. Marotto v. Kellogg, No. 1:18-cv-03545 (S.D.N.Y. Jan. 31, 2020).

Marotto sued Kellogg in April 2018, claiming that the “no artificial flavors” claim on the label of Pringles cans misled him into believing that Pringles are free of any artificial ingredients, and only found out later that the chips contained the “artificial flavorings” sodium diacetate and malic acid . He moved to certify a class of purchasers of Pringles Salt and Vinegar chips.

In December, Judge Hellerstein denied Marotto’s bid for class certification, finding that he had not demonstrated commonality because the chips at issue featured twenty different labels during the class period, only four of which included the “no artificial flavors” language. The court therefore could not determine which purported class members had been harmed by the alleged deception without looking into the circumstances of each individual member. Judge Hellerstein also doubted whether Marotto’s claims were typical of the proposed class and whether he was an adequate class representative, since he is a professional chef with training in molecular gastronomy for whom “price is no concern.”

On the motion for reconsideration, Judge Hellerstein rejected Marotto’s argument that the class should be certified because Kellogg could not prove any of the Pringles cans lacked a label saying the chips contained “no artificial flavors.” He noted that the burden was on Marotto, not Kellogg, to make an affirmative showing that the class merited certification under Fed. R. Civ. P. 23.

Judge Hellerstein also rejected Marotto’s related argument that he was not required to show that each class member actually relied on the allegedly misleading language, holding that Marotto had confused the reliance element with causation and injury, which he was required to show. Here, Marotto had not shown that any class members were actually injured, since there was no evidence that Kellogg had charged a price premium based on the claim that the products lacked artificial ingredients.

Finally, the judge found that the depiction of “real vinegar” on some labels was not sufficient to show that the label was misleading: the chips did contain some actual vinegar, so the representation was literally true, and Marotto did not prove that the average class member would infer from it that only real vinegar was used to flavor the chips.

The opinion underscores the difficulty of certifying false advertising class actions where the alleged misrepresentations were not made uniformly to class members. Watch this space for further developments.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 79
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About this Author

Lawrence I Weinstein, False Advertising and Trademark Copywright Law, Proskauer
Partner

Larry Weinstein is a Partner in Proskauer's Litigation Department. He is co-head of the firm’s Intellectual Property Litigation Group, and also co-head of the firm’s False Advertising & Trademark Practice. Larry is both a distinguished trial lawyer and counselor, whose practice covers a broad spectrum of intellectual property law, including Lanham Act false advertising and trademark cases, consumer class action cases, NAD and FTC proceedings, and trade secret and copyright litigations, as well as sports, art and other complex commercial cases.

212-969-3240
Jeffrey H Warshafsky, Proskauer Law firm, Litigation Attorney
Associate

Jeffrey H. Warshafsky is an Associate in the Litigation Department, resident in the New York office. He is a commercial litigator with a particular emphasis on false advertising, trademark, and counterfeiting disputes. Jeff also advises clients on trademark portfolio management, anti-counterfeiting strategies, cybersquatting prevention, and other Internet-related trademark infringement matters.

212-969-3241
Emily H. Kline Associate Litigation
Associate

Emily Kline is an associate in the Litigation Department.

Emily earned her J.D. from Columbia Law School, where she was an editor of the Human Rights Law Review. While at Columbia, she interned at Volunteer Lawyers for the Arts, a legal services nonprofit, and in the Consumer Frauds and Protections Bureau of New York State Attorney General’s Office. She also worked as a judicial intern for the Honorable Kiyo A. Matsumoto at the United States District Court for the Eastern District of New York.

212-969-3908
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