The Latest In Advertising Class Action Lawsuits

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Unlike past advertising cases—such as those challenging Listerine's claims that the mouthwash cured all common cold ailments and Kashi's "all natural" claim, which was alleged to be false because the product supposedly contained synthetic ingredients—in which plaintiffs complained against marketers for outright falsehoods, more recent false advertising class actions are focusing on technicalities. Take the recent "Subway Foot Long" cases, for example. Plaintiffs in these cases contend that Subway advertised its sandwiches to be 12 inches, when they allege the sandwiches are often only between 11 and 11.5 inches long. See, e.g., Pendrak v. Subway Sandwich Shops, Inc., No. 3:13-cv-00918-FLW-DEA (D.N.J. Feb. 13, 2013).

This trend, previously focused on food, now has extended to the growing categories of fitness-related technology and products. In May 2013, a single named plaintiff filed a putative class action complaint in a California state court against Nike, Inc. and Apple, Inc., alleging that the defendants falsely represented the Nike+ FuelBand product's ability to accurately track caloric burn during physical activity. Levin v. Nike, Inc., et al., No. BC509363 (Cal. Super. Ct. 2013). The plaintiff's primary grievance is that the product is not "capable of tracking every calorie burned." (emphasis added). The complaint, which proposes a California class of FuelBand purchasers, seeks monetary damages, disgorgement of profits, and attorneys' fees, among other remedies. The requested relief rests upon both common law and California statutory claims, alleging that defendants were aware of the product's purported inability to accurately register calories burned, and yet misled purchasers that the product provided an accurate reading. 

The complaint does not, however, indicate how far the product deviated from an accurate reading of calories burned, nor how the plaintiff was able to determine this. Similarly absent from the complaint are factual averments to support the plaintiff's allegation that she "reasonably expected that the FuelBands she purchased were capable of accurately tracking every calorie burned while wearing the device."   

The defendants have not yet responded to the complaint. If the case proceeds beyond the pleadings phase, the plaintiff will have the burden of proving that class certification is appropriate. Following the United States Supreme Court's recent pronouncement that "Questions of individual damage calculations will inevitably overwhelm questions common to the class" in certain instances, this may prove challenging. Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1433 (2013).

The ultimate success of lawsuits like Levin v. Nike et al. remains to be seen. But the interest in filing these complaints appears to be on the rise. If advertising suits for fitness-related technology and products follow the trend of food advertising litigation, one can expect to see many more lawsuits to come. Such suits may extend to traditional exercise equipment, such as treadmills that monitor heart rate and caloric burn.