• August 24, 2011

Update #3 (August 24, 2011):  It turns out that “eliminate” actually does not mean “eliminate,” after all.  Go figure.  Text must yield to context.  The trial court must not “make fortress out of the dictionary.”  On this basis, Eighth Circuit U.S. Court of Appeals Judge James B. Loken reversed the permanent injunction issued by U.S. District Court Judge Richard H. Kyle, Sr. in the Buetow v. ALS case described below.  Judge Loken’s colleague, Bobby Shepherd, agreed, but not his other colleague, Michael J. Melloy, who dissented from part of Judge Loken’s decision. 

The case is a testament to the challenges of bringing class action litigation; plaintiffs’ battle has been litigated since June, 2009, and it is far from clear that plaintiffs’ counsel will ever see a payday on this one…

Update #2 (March , 2011):  “When justice prevails, appeal,” is a cynical joke muttered by experienced litigators from time to time.

The case described below is a consumer case against a company that advertised clothing to “eliminate” human odors for hunters’ clothing (advertising found by U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn.) to have been false).  “Eliminate,” the defendant emphasizes, doesn’t really mean “eliminate.”  It can sometimes mean “diminish,” as when a politician pledges to “eliminate” poverty…

The appellant/defendant (Naikang Tsao of Foley & Lardner in Madison) argued before the U.S. Court of Appeals for the 8th Circuit in mid-February.  Another thrust of their argument: plaintiffs cannot get a permanent injunction when they have made no showing of “irreparable harm.”

Renae Steiner, of Heins Mills & Olson, argued for plaintiff.  Judge James B. Loken took Steiner to task for obtaining a Lanham Act injunction for consumers (who would be hard-pressed to show “irreparable harm”) rather than direct competitors for whom such an argument is relatively straight-forward.

Update (October 5, 2010):  From time to time, merchants cross the line in touting the effectiveness or their products and are called to task for “stretching the truth” (lying?) about their products (pomegranate juice for erectile dysfunction???).  On the other hand, because a seller may have said false or misleading things about a product does not mean that buyers made their purchases based on the false or misleading claims.  (Some may drink pomegranate juice because of the taste?)  That is, in each purchase, “reliance” on the alleged fraud is hardly a foregone conclusion.

The need to establish reliance for each sale is often fatal to class action claims of consumer fraud because defendants argue that each transaction must be examined to determine whether the buyer relied on the alleged fraud.  The case cannot be decided on a class-wide basis.  Some states, however (California, Florida, Michigan), have (at least arguably) done away with the requirement to show individual reliance for consumer fraud cases.

That may be the case — U.S. District Court Judge Richard H. Kyle, Sr. (D. Minn) assumes so for purposes of argument — but Judge Kyle has nevertheless held this past week that, in federal courts in the Eighth Circuit at least, reliance is a matter of constitutional standing.  On that basis, he denied plaintiffs’ motion for class certification in the Active Carbon-Based Hunting Clothing Marketing & Sales Practices Litigation even if plaintiffs’ substantive claims under state law do not require any evidence on the issue of reliance.]

[Original Post, May 14, 2010:]  An unlikely team of Minneapolis law firms, Heins Mills & Olson and Merchant & Gould, teamed up for plaintiffs to take on some hunting apparel companies, including Gander Mountain and Cabela’s, who advertised carbon-infused clothing advertised to “eliminate” human odor (that is, to enable hunters to avoid detection by deer and the like).

On cross-motions for summary judgment, U.S. District Court Judge Richard Kyle, Sr. (D. Minn.) ruled predominantly though not entirely in favor of plaintiffs.  He held, for example, that some of the advertisements submitted to the Court on cross-motions were literally false and that plaintiffs did not have to remember seeing and relying on specific language in a specific ad to have standing.  Judge Kyle ruled against plaintiffs on their Minnesota Deceptive Trade Practices Act claim but plaintiffs triumphed on summary judgment on claims under the Minnesota Consumer Fraud Act and Minnesota Uniform Trade Practices Act.  Presumably next comes the fight as to whether plaintiffs’ counsel will get attorneys’ fees paid by defendants as “private attorneys’ general,” (presumably yes) and then whether the fees claimed are deemed reasonable.

Leave a Reply

Your email address will not be published. Required fields are marked *