With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including:
💡 Courts are getting a bit more stringent on the “reasonable consumer test”—the determination whether a large portion of the target market is likely to be misled. Does “krab meat” come from crab? Are rumors that outlet stores carry nowhere-to-be-found merchandise actionable? Increasingly, the courts’ answer to these questions is: Come on.
💡 But the “reasonable consumer” depends on what the product is. King’s Hawaiian bread is actually made in Torrance, CA. Does that matter? Probably not, because bread is bread. But what if the product was beer—where consumers may have more discriminating tastes, and the quality of the water matters to the product? The answer might change.
💡 The “reasonable consumer” is often determined as a matter of law. So plaintiffs’ strategy is to rely on consumer surveys, to make the determination factual in nature. Does it work? As Greg explains, you may be able to attack the survey as a matter of law.
💡 Litigation consumer claims in federal court? Beware of Article III standing. And bookmark the Sonner v. Premier Nutrition case—plaintiffs might not be able to get both legal and equitable relief in federal court.
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