The Advertising Disputes & Litigation and Consumer Protection Committees RECENT LITIGATION DEVELOPMENTS. [Cases from November 19 to December 13, 2017]

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2 The Advertising Disputes & Litigation and Consumer Protection Committees RECENT LITIGATION DEVELOPMENTS [Cases from November 19 to December 13, 2017] Prepared for the ADL and CP Committees by Dan Blynn and Renato Pérez of Venable LLP; Dale Giali, Elizabeth Crepps, and Rebecca Johns of Mayer Brown LLP; Sherrie Schiavetti, Katie Townley, Donnelly McDowell, Mindy Pava, Jennifer Wainwright, and Lauren Myers of Kelley Drye & Warren LLP; Doug Brown and Samantha Duke of Rumberger, Kirk & Caldwell; William Cantrell of Cantrell, PLLC; Erik King of Lockheed Martin; and Michael Sherling of Perkins Coie, LLP. RECENT DECISIONS State Consumer Protection Laws The U.S. District Court for the Eastern District of California grants in part and denies in part defendant CarMax s motion to dismiss an action where the plaintiff alleged, among other things, violation of California s Consumers Legal Remedies Act ( CLRA ) and Unfair Competition Law ( UCL ). After purchasing a BMW from CarMax, the plaintiff experienced multiple difficulties with the vehicle, including issues with the engine and the battery. Plaintiff claimed that the defendant violated the CLRA and the UCL by misrepresenting the quality of the vehicle, not inspecting the vehicle history, and not providing an inspection report or other information about the condition of the vehicle. CarMax claimed that any representations about its rigorous testing was puffery, and the court agreed, finding it unreasonable to infer that any statements the defendant made would guarantee that no problems would occur after the vehicle is purchased. The court reasoned that statements that discuss the high quality of a product are non-actionable puffery that a consumer would not likely rely on in making a decision. Similarly, the word reliability, as used in the defendant s advertisements was puffery because the term is inherently vague and general. However, statements regarding the condition of the vehicle, the manufacturer s warranty, CarMax s inspection certification and CarMax s warranty were not puffery because facts can be determined regarding these issues through discovery. Thus, claims related to these statements were upheld. The court dismissed the claims based on the failure to disclose the vehicle s engine defect because the plaintiff could not provide facts that CarMax had knowledge of the defect prior to the sale of the car. The court also dismissed the claims based on a failure to investigate whether there had been a recall of the vehicle because the plaintiff had not suffered an injury based on this alleged failure. Finally, the court dismissed the claim that the limited warranty statement CarMax provided was misleading. The court found that no reasonable consumer could be misled by the statement and that the plaintiff did not have standing to bring the claim because he could not show that they suffered injury due to CarMax s conduct. The court denied the motion to dismiss regarding the claim that the defendant misrepresented that the vehicle was certified because the plaintiff alleged sufficient facts to support this claim. (Besh-wate v. BMW of North America, No. 1:17-cv-00417, 2017 WL (E.D. Cal. Dec. 12, 2017)). 2

3 The U.S. District Court for the District of New Jersey grants summary judgement to defendants Fike Corporation and Suppression Systems, Inc., and dismisses as moot related Daubert motions. Plaintiff Sun Chemical Corp is a producer of printing inks and pigments. It filed suit alleging that the defendants violated the New Jersey Consumer Fraud Act by falsely misrepresenting the performance of its product, a dust collection system, including an explosion protection system, for its black in pre-mix operations. The suit followed an explosion involving the defendants product on the plaintiff s premises, resulting in injury to the plaintiff s employees and to its plant equipment. Plaintiff alleged that the defendants misrepresented, among other things, that their product complied with industry standards and the product would protect the plaintiff s workers and its equipment. The court dismissed the plaintiff s misrepresentation claims, finding that it failed to raise a genuine issue of material fact demonstrating that the alleged misrepresentations caused the plaintiff s injuries. The court further granted in full the defendants motion for summary judgment and dismissed the action. (Sun Chem. Corp. v. Fike Corp., No , 2017 WL (D.N.J. Dec. 11, 2017)). The U.S. District Court for the Northern District of Illinois grants in part and denies in part defendant Dunkin Brands, Inc. s motion to dismiss the plaintiff s complaint, which alleged that the defendant deceptively marketed certain of its food products. Specifically, the plaintiff alleged that he purchased a blueberry glazed donut believing that it contained real blueberries based on the product name on the placard and the fact that it was offered for sale side-by-side with products that do actually contain blueberries. The complaint included claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, common law fraud, intentional misrepresentation, negligent misrepresentation, breach of contract, and unjust enrichment. The court upheld all counts of the complaint, finding that, [b]ased on the pleadings, a reasonable consumer, in fact, could conclude that a product identified with the word blueberry contained blueberries. Contrary to Dunkin s arguments, common sense does not dictate that a reasonable consumer would conclude under all circumstances only that the use of the term blueberry in the product name meant that the product was a blueberry flavored product. In reaching its conclusion, the court found that this case was not comparable to numerous product packaging disputes cited by Dunkin in its motion because the content of Dunkin s products was not immediately ascertainable by consumers at the time of purchase. The court also observed that whether a contract existed and the amount of the plaintiff s damages were determinations that would need to be made later than the pleadings stage, and thus, dismissal based on the pleadings would be inappropriate. The court did, however, grant Dunkin s motion to dismiss the plaintiff s request for injunctive relief because based on the pleadings there is no indication of a future threat of harm to [the plaintiff]. (Grabowski v. Dunkin Brands, Inc., No. 17-C-5069, 2017 WL (N.D. Ill. Dec. 7, 2017)). In a case involving the allegedly false representation of health benefits on labels of biotin supplements, the U.S. District Court for the Southern District of California partially grants and partially denies the defendants motion to dismiss. Plaintiffs claimed that they purchased biotin vitamin supplements distributed by nutritional supplement company defendants NBTY, Inc. and Nature s Bounty, with the supplements labels representing that the products support [ ] healthy hair, skin and nails and provide energy support. Plaintiffs brought claims under California and Illinois false advertising and consumer protection laws, and contended that the products megadose amounts are far beyond the range that would ever be beneficial and thus are unnecessary to 3

4 improving the health of hair, skin, or nails, or providing increased energy. First, the court determined that the defendants waived the argument that the court lacked personal jurisdiction over non-resident defendants for the California claims asserted by one named out-of-state class representative because they did not assert such a defense in their initial briefing. The court also reasoned that the plaintiffs lacked standing to seek prospective injunctive relief based on no threat of future injury, as they claimed that they stopped purchasing the products in question when they learned the products did not provide the represented health benefits. Thus, the court granted the motion to dismiss with respect to the plaintiffs claims for injunctive relief, but denied the motion with respect to plaintiffs multi-state class claims in concluding that the class certification stage represented the proper time to evaluate such claims. Specifically pertaining to allegations of fraud, the court determined that one plaintiff adequately pled her fraud claims by indicating the specific product she purchased, the location from where she purchased it, and the label she relied on, but that the other plaintiff failed to do so because she only provided a few vague factual allegations relating to her purchase. The court, thus, granted the motion to dismiss with respect to the second plaintiff s fraud claims, but granted leave to amend the allegations in question. (Alvarez v. NBTY, Inc., No. 17-cv-00567, 2017 WL (S.D. Cal. Dec. 6, 2017)). The U.S. District Court for the Southern District of New York grants defendant Burberry Limited s motion to dismiss an action alleging deceptive pricing practices at Burberry outlet stores. Plaintiff claimed that he was deceived into buying certain Burberry brand shirts at outlet stores, when he was led to believe that the products were designed for mainline stores, but were actually intrinsically less valuable products that were not regularly sold at their reference prices (the was or manufacturer s suggested retail prices marked near the list prices). Plaintiff claimed that madefor-outlet products are intrinsically less valuable than mainline retail products, and that Burberry's pricing of the shirts at the outlets led him to overvalue the products he purchased. The court held that, to sufficiently allege an injury based on a price premium theory under New York and Florida law, a plaintiff must allege that he overpaid by an objective measure, not merely a subjective feeling that he overpaid. The court explained that the plaintiff's amended complaint did not allege how the outlet-only shirts he bought differ from the retail shirts he believed he was buying, and that the plaintiff also failed to allege any facts showing that the shirts he purchased were, in fact, outlet only products. Thus, the court held that the plaintiff failed to allege an actual injury and also failed to plead fraud with particularity under Fed. R. Civ. P. 9(b). Therefore, the court dismissed the amended complaint with prejudice. (Belcastro v. Burberry Ltd., No. 16-cv-1080, 2017 WL (S.D.N.Y. Dec. 1, 2017)). The U.S. District Court for the Southern District of Florida denies the defendant s motion to dismiss a consolidated lawsuit, which alleged that certain anti-aging claims for cosmetics made by defendant Universal Handicraft were deceptive or fraudulent. Initially, an action was filed in the Central District of California and a similar suit was filed in the Southern District of Florida. Both of these cases were consolidated before Judge Scola in the Southern District of Florida and the plaintiff was required to file a Third Amended Complaint combining the claims of both plaintiffs into one consolidated complaint. The parties stipulated that the defendants would not include in any motion to dismiss arguments that were previously rejected by the California court. However, the motion to dismiss did include some arguments that the court found had been previously rejected. The court limited the scope of its consideration to three arguments that were not barred by the stipulation or Fed. R. Civ. P. 12(g). First, it rejected the shotgun pleading argument, 4

5 reasoning that any violation was merely technical and not substantial enough to prevent the defendants from answering. Second, the court held that the allegation that the plaintiff relied upon the representations and warranties of the defendant was sufficient to allege reliance for the fraud claims. The court also refused to strike the class allegations as to fraud as premature, and held that the class certification motion was the appropriate time to consider those issues. Finally, the court denied the motion for a more definite statement as improper under Rule 12(g), and also found that the allegation was sufficiently specific. (Mollicone v. Universal Handcraft, No , 2017 WL (S.D. Fla. Nov. 29, 2017)). Consumer Class Actions The U.S. District Court for the Central District of California grants the plaintiffs unopposed motion for preliminary approval of a class action settlement and conditional certification of a settlement class in a case where they asserted that the defendant-retail stores in California, including T.J. Maxx, HomeGoods, and Marshalls, engaged in a deceptive advertising scheme by advertising sale prices that were substantially lower than the similarly-marketed compare at prices. Plaintiffs contended that the defendants use of the compare at prices deceived consumers because the retail stores failed to adequately disclose what the reference prices were intended to represent and the compare at prices were not based on actual prices that identical items sold for in other stores. The settlement class, estimated at eight million members, is comprised of all persons in California who purchased one or more items with a price tag that included a compare at price between July 17, 2011 and the present from a T.J. Maxx, Marshalls, or HomeGoods store in California. The settlement provides that the defendants will contribute $8.5 million to be distributed on a pro-rata basis in the form of merchandise credits to members of the class who submit a valid claim. Additionally, the injunctive relief component of the settlement provides that defendants will alter the disclosure of compare at pricing on their websites and instore signage to include language stating that comparison prices are references to identical items or similar items. (Chester v. The TJX Companies, Inc., No. 5:15-cv-01437, 2017 WL (C.D. Cal. Dec. 5, 2017)). The California Court of Appeal (First District) affirms the trial court s denial of the plaintiff s class certification motion and the denial of the plaintiff s request to continue the class certification motion for further discovery. Plaintiff, on behalf of a California consumer class, sued Thrifty Payless alleging that Thrifty sold an inflatable swimming pool that was much smaller than pictured on the box. As to the plaintiff s Unfair Competition Law ( UCL ) and False Advertising Law ( FAL ) claims, the trial court found that the plaintiff provided no evidence as to how members of the proposed class of 20,000 consumers would be ascertained as required under California s class action statute (Cal. Code of Civ. Proc. 382). The trial court also ruled that a class action was not superior to individual lawsuits on the UCL and FAL claims given that individual, not common, questions predominated on issues of reliance and causation. As to the plaintiff s Consumer Legal Remedies Act ( CLRA ) claim, which has its own provision for class treatment in which each class member must show actual injury unless the advertising is materially misleading, the trial court determined that the plaintiff had not demonstrated that the packaging was materially misleading and, therefore, had not shown that common questions predominate on issues of reliance and causation. Affording the trial court great deference, the Court of Appeal 5

6 affirmed, ruling that the trial did not abuse its discretion or misapply the law. The Court of Appeal recognized two ascertainability tests (under Sotelo v. Media News Group and Estrada v. FedEx Group Package System) and ruled that the trial court did not abuse its discretion in applying the Sotelo test. The appellate court agreed that the plaintiff failed to meet the Sotelo test of demonstrating at the class certification stage, not just the remedial stage that there are means of identifying members of the putative class so that they might be notified of the lawsuit. The Court of Appeal rejected a criticism of Sotelo in Aguirre v. Amscan Holdings, and agreed with the trial court that the plaintiff submitted nothing offering a glimmer of insight into who purchased the pools or how one might find that out. That failure, the court ruled, jeopardizes the due process rights of absent class members. The appellate court also ruled that the trial court s decision that a class action was not superior for the UCL and FAL claims was supported by evidence and was not an abuse of discretion. It further affirmed the trial court s denial of certification as to the CLRA claim on the ground that common questions did not predominate on the issues of reliance and causation, and that the trial court did not abuse its discretion in deciding that a substantial number of class members may not have relied on the challenged photograph in making their purchasing decision. Finally, the Court of Appeal ruled that the trial court did not abuse its broad discretion in denying the plaintiff s request to allow further discovery to try develop the record on ascertainability. Plaintiff had a full opportunity to develop that record and was in control about the timing of filing his motion for class certification. (Noel v. Thrifty Payless, Inc., -- Cal. App. 4th --, 2017 WL (Dec. 4, 2017)). The U.S. District Court for the Southern District of New York dismisses a putative class action suit brought against Dannon Company, Inc., which alleged that Dannon deceptively labelled its yogurt products by using the phrase, All Natural, when, in fact, the yogurt was made with milk that was likely produced by cows who had been injected with hormones and antibiotics, and who had ingested GMO feed. In dismissing the complaint for failure to state a claim, the court noted that the plaintiff failed to specify an ingredient that she alleged was not natural. The court found no legal support for the idea that a cow that eats GMO feed or is subjected to hormones or various animal husbandry practices produces unnatural products, and found that Dannon did not represent that its products were either GMO-free or free of certain hormones or antibiotics. (Podpeskar v. Dannon Company, Inc., No. 16-cv-8478, 2017 WL (S.D.N.Y. Dec. 3, 2017)). The U.S. District Court for the Eastern District of Missouri grants the plaintiffs motion for class certification in an action alleging that the defendant misled the public about the quality of its wet/dry vacuum product because the vacuum could not attain the advertised horsepower in a standard household electrical wall outlet. The court first determined that the substantive law of a singular state, Missouri, would apply to the case because the central issue of the case, whether the advertisement campaign is misleading, originated in Missouri. The court then analyzed the factors for ruling on a class certification request. The court concluded that the proposed class was of a sufficient size, that the central issue of misrepresentation about the vacuum s horsepower was sufficient to prove commonality, that the plaintiffs claims have the same characteristics as the class at large, that the plaintiffs possess the same interest and injury of violations of the class, and 6

7 the plaintiffs are being represented by competent class counsel. The court also determined that questions of law or common facts predominate in this case, and that class action is the superior method of adjudication for this dispute. Therefore, class certification was appropriate. (In re Emerson Electric Co Wet/Dry Vac Mktg. and Sales Litig., No. 4:12MD2382, 2017 WL (E.D. Mo. Dec. 1, 2017)). The U.S. District Court for the Northern District of Illinois grants the then-defendant cat food manufacturer s motion to dismiss a class action complaint. Plaintiffs claimed that the defendant s marketing of its cat food as prescription was deceptive and in violation of Illinois Consumer Fraud and Deceptive Business Practices Act ( ICFA ) because it contained no ingredient that could not be found in off-the-shelf cat food and the label prescription allowed the manufacturer to charge more for the product. The court dismissed the ICFA claim finding causation was not properly pled. Plaintiffs purchased the cat food after their cats had serious health problems and after their veterinarians prescribed the cat food. Plaintiffs did not dispute that the cat food did not offer any health benefits nor did their allegations plausibly suggest that they would have let their cats suffer without the cat food had they known the facts they claim to now know. The court also found the defendant s conduct was protected under the safe harbor exception of the ICFA because the Food and Drug Administration is the regulatory authority charged with regulating the cat food and it has not questioned the prescription labeling. The court also found that the complaint was missing various allegations to support the plaintiffs fraud and unfairness claims. (Vanzant v. Hill s Pet Nutrition, Inc., No. 17-C-2535, 2017 WL (N.D. Ill. Nov. 29, 2017)). The U.S. District Court for the Northern District of California grants in part the plaintiffs motion for reconsideration of the court s order dismissing with prejudice their request for injunctive relief on the grounds that they lacked Article III standing. Plaintiffs brought the putative class action against the defendant, Craft Brew Alliance, Inc. ( CBA ), alleging that it packages and markets Kona beer in a manner intended to deceive consumers into thinking the beer is brewed in Hawaii when, in fact, it is brewed in the mainland United States. As part of their case, the plaintiffs sought injunctive relief to enjoin CBA s allegedly false advertising. The court had previously granted CBA s motion to dismiss the plaintiffs request for injunctive relief without leave to amend because it found that the allegation that the plaintiffs would purchase the products in the future if they were brewed in Hawaii was insufficient to confer standing. The court reasoned that, because the plaintiffs are now aware of CBA s production process, there is no likelihood that they will be deceived again. Plaintiffs asked for reconsideration when, a few weeks after the court issued its order, the Ninth Circuit decided Davidson v. Kimberly Clark Corporation. Plaintiffs argued that Davidson constituted an intervening change of controlling law because it altered the court s analysis for how to determine if there is Article III standing for injunctive relief. The court agreed, and noted that the plaintiffs must at least be afforded leave to amend because the Ninth Circuit determined that there are some circumstances where injunctive relief is available to a consumer who learns that the label is false after purchasing a product. The court did recognize, however, that the allegations in the complaint were insufficient to confer Article III standing for injunctive relief because plaintiffs do not allege that they have a current desire to purchase Kona beer but have no way to determine whether the representations on the packaging are true, or that Plaintiffs 7

8 might purchase Kona beer under an incorrect assumption that the product is now brewed in Hawaii. (Broomfield v. Craft Brew Alliance, Inc., No. 17-cv-1027, 2017 WL (N.D. Cal. Nov. 27, 2017)). The U.S. District Court for the Central District of California denies defendants APN, Inc. s and Ainsworth Pet Nutrition s (collectively, APN ) motion to dismiss the plaintiff s second amended putative class action complaint alleging deceptive marketing practices in connection with APN s Rachel Ray Nutrish lines of dog food products. Specifically, the plaintiff alleged that APN deceptively marketed its products as natural when, in fact, they contained chemicals and artificial and/or synthetic ingredients. APN argued that the plaintiff failed to allege that a significant portion of the public would be deceived by its conduct. The court found that allegations that the products claim to be natural but contain chemicals and artificial ingredients were sufficient. The court also rejected APN s argument that its labels are literally true and confirmed by the ingredients list because they state that the food is natural food for dogs with added vitamins & minerals, which APN stated makes clear that the language clarifies that vitamins and minerals are excluded from natural dog food. APN also argued that vitamins and minerals are by definition synthetic, but the court declined to address that argument at the pleading stage of litigation. The court found that the plaintiff sufficiently pled that caramel color and natural flavors are not natural, and that APN engaged in deceptive practices by labeling and advertising its products as containing no artificial preservatives. The court, next, considered APN s argument that the plaintiff did not sufficiently plead injury-in-fact. APN argued that the plaintiff purchased APNs products after discovering that they contained allegedly false labels. The court found that purchasing products after learning that they are deceptive does not deprive the plaintiff of standing. Finally, the court found that the second amended complaint complies with Fed. R. Civ. P. 9(b) s particularity requirement. Plaintiff alleged the who, what, when, where, and how of the alleged misconduct by stating that she purchased them at least once a month in a five-month period, and by stating that she was not aware that the products were not natural because they contain complex or scientific names. Moreover, she adequately pled reliance because she alleged that she switched to APN s food given that her last pet food was not natural, and she thought that APN s was natural. Finally, she alleged sufficient details about APN s advertising campaign, including that it has utilized television, print, digital, and a food truck, and many advertisements state that the products contain simple, natural ingredients. (Grimm v. APN, Inc., No. 17-cv-356, 2017 WL (C.D. Cal. Nov. 20, 2017)). The U.S. District Court for the Northern District of California was presented with a motion for class certification with respect to alleged misrepresentations made by Fitbit, Inc. ( Fitbit ) concerning the sleep-tracking functionality of several of its wearable fitness devices. Specifically, Fitbit represented that its Fitbit Ultra, Fitbit One, and Fitbit Flex could track hours slept, times woken up, and quality of sleep. Those exact representations were made, among other places, on the packaging and boxes for those models. The plaintiffs contended the representations were deceptive because the sleep-tracking functionality only can measure movement, not sleep. As a result, the plaintiffs argued that they and putative class members were deceived into paying more for the Fitbit devices purportedly containing sleep-tracking functionality when the devices 8

9 only measure movement. The motion sought to certify: (i) a class of California consumers for claims under California s Unfair Competition Law ( UCL ) and Consumer Legal Remedies Act ( CLRA ), common law fraud, negligent misrepresentation, and unjust enrichment; and (ii) a class of Florida consumers for claims under Florida s Deceptive and Unfair Trade Practices Act ( DUTPA ), negligent misrepresentation, and unjust enrichment. Fitbit challenged the class certification based primarily on Fed. R. Civ. P. 23 s typicality and commonality requirements. First, Fitbit argued the named plaintiffs contentions were not typical of the proposed class because, on the one hand, the complaint alleged the sleep-functionality didn t work because it only tracked movement while, on the other hand, the plaintiffs testified that they did not know or care about how the devices functioned only that the devices didn t actually track sleep. The court rejected this argument, noting that the complaint merely provided more technical details than proffered by the deposition testimony. More important to the element of typicality, the testimony did not take away from the plaintiffs core contentions that they and the proposed class members share the same injury from the course of conduct by Fitbit. Second, Fitbit argued that the plaintiffs claims were not sufficiently common to all proposed class members because: (i) individuals who purchased the devices online may not have seen the representations; (ii) consumers may subjectively interpret the representations differently; and (iii) many consumers may not have relied on the representations in deciding to purchase a device. The court easily disposed of the first two arguments. As to the first argument, the court noted that Fitbit provided no evidence that the representations made online were different to purchases made through retailers. As to the second argument, the court asserted that the statements at issue e.g., the devices track sleep, including the hours slept, times woken up, and quality of sleep are simple declarations made in plain English and, therefore, reasonable consumers would not interpret the statements inconsistently. The court contrasted those statements with cases that refused to certify class actions relating to the phrase all natural a phase that some courts have found to be indefinite and subject to multiple meanings. Finally, the court rejected the reliance argument with respect to all the claims, except for the Florida claim of negligent misrepresentation. Under Florida law, that claim requires that each person have a subjective evidence of reliance. All of the remaining claims did not require any showing of subjective reliance. As a result, the Florida claim for negligent misrepresentation was not certified, but all remaining claims were certified. (Brickman v. Fitbit, Inc., No. 3:15-cv-02077, 2017 WL (N.D. Cal. Nov. 20, 2017)). RECENT FILINGS Consumer Class Actions Putative nationwide class action, with California-only subclass, filed against Kimberly-Clark Worldwide, Inc. in the U.S. District Court for the Northern District of California, alleging claims for breach of express warranty, fraud, unjust enrichment, and violations of California s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act. According to the plaintiff, the defendant misleadingly advertises its Huggies Natural Care baby wipe products as natural, gentle clean, hypoallergenic, hypoallergenic Natural Care, and soft and gentle clean. Plaintiff asserts that the baby wipes contain unnatural, synthetic, and/or artificial 9

10 components, including phenoxyethanol, caprylyl glycol, cocamidoproyl betaine, and sodium citrate. (Haris v. Kimberly-Clark Worldwide, Inc., No. 4:17-cv (N.D. Cal. complaint filed on Dec. 8, 2017)). Putative nationwide class action filed in the U.S. District Court for the Northern District of California against The RealReal, Inc., alleging violations of California s Unfair Competition Law, False Advertising Law, and the Consumer Legal Remedies Act. According to the complaint, the defendant operates an online luxury consignment website and systematically inflated the gemstone weights of jewelry sold on the site. Plaintiff alleges that the represented weights of the defendant s products vary far more than permitted under Federal Trade Commission regulations, which provide that it is an unfair and deceptive act to misrepresent the weight of a diamond and prescribe certain rules for rounding of carat sizes. (Basmadjian v. RealReal, Inc., No. 17-cv (N.D. Cal. complaint filed on Dec. 4, 2017)). Putative nationwide class action, with North Carolina-only subclass, filed against Behr Process Corp., Behr Paint Corp., MASCO Corp., Home Depot, Inc., and Home Depot U.S.A., Inc. in the U.S. District Court for the Western District of North Carolina, alleging causes of action for, among other things, North Carolina s consumer protection statute. Plaintiff asserts that the defendants misleadingly advertise their DeckOver products for concrete and wood outdoor surfaces as a premium product that is durable, long-lasting, will repair cracks, and will revitalize a deck. According to the plaintiffs, the defendants products do not perform as advertised, but, instead peel, crack, and bubble shortly after being applied, sometimes causing damage to the underlying structure. Plaintiffs claim that the defendants are aware of these issues as consumers have posted numerous complaints online. (Edwards v. Behr Process Corp., et al., No. 3:17-cv (W.D.N.C. complaint filed on Nov. 27, 2017)). Putative nationwide class action filed in the U.S. District Court for the Central District of California against Bayer Healthcare LLC and Bayer Corp. alleging violations of California s Consumer Legal Remedies Act, Unfair Competition Law, and False Advertising Law. According to the complaint, the defendant falsely labeled its Flintstones Gummies Complete Multivitamin products as Complete when they do not contain certain nutrients characterized by the Food and Drug Administration as essential, including Vitamin K and B vitamins, thiamine, riboflavin, and niacin. The complaint does not allege that the defendant falsely represented that the product contained these vitamins in the Supplement Facts panel, but rather that use of the word Complete in the product name impliedly suggests that these nutrients were present when they were not. (Cabrera v. Bayer Healthcare LLC, No. 17-cv (C.D. Cal. complaint filed on Nov. 22, 2017)). 10