Hunton Retail Law Resource

This past week, the following consumer protection actions in federal courts and agencies made headlines:

The Ninth Circuit

The Ninth Circuit was busy addressing consumer protection issues this week. Two proposed class actions brought against Apple, Inc. were decided in favor of the company. In the first action, Hodges v. Apple, Inc., a three-judge panel affirmed a lower court’s dismissal of a putative class action alleging deceptive practices in the advertising and sale of Apple’s MacBook Pro with retina display computers. The plaintiff was dissatisfied with the quality of his retina display screen, but the Ninth Circuit agreed with the lower court that Apple had not misled consumers about the retina displays in its advertising. In the second case, a three-judge panel again upheld a dismissal of a proposed class action against Apple that accused the company of misrepresenting the speech capabilities of its iPhone 4S product. The majority of the appeals court agreed with the lower court’s assessment that the allegations about the capabilities of the Siri speech recognition software were too broad, and did not meet the pleading requirements under the Federal Rules of Civil Procedure.

Finally, a three-judge panel revived a class action that had previously been dismissed by a district judge against Hain Celestial’s Alba Botanica skincare line. Plaintiffs claimed that marketing the products as “natural” misled consumers into buying products that contained synthetic substances at a higher cost.

N.D. California

A California federal judge denied final approval of a settlement between Starkist Co. and a proposed class of tuna consumers, saying that the settlement did not adequately notify the class of the release and unfairly protected the tuna producer over the class. The complaint in Hendricks v. Starkist Co. alleges that Starkist underfills its cans, and U.S. District Judge Haywood S. Gilliam, Jr. preliminarily approved a $12 million settlement deal in May 2015. The judge, however, now objects to the deal, which releases Starkist not only from claims related to the underfilling of cans, but to all claims relating to the purchase of Starkist products. According to the order, a case management conference is set for mid-March to discuss changes to the settlement.

Federal Trade Commission

The FTC approved a final consent order with Carrot Neurotechnology, Inc. and its co-owners, which had been under investigation for making deceptive claims that their “Ultimeyes” app could improve users’ vision. Advertising for Ultimeyes claimed that the app would “Turn Back the Clock On Your Vision,” and reduce the need for glasses and contact lenses. The final decision and order with Carrot Neurotechnology requires the company to have competent and reliable scientific evidence before making future claims, and to pay $150,000 in consumer redress.