False Advertising & Unfair Business Practices

Our Consumer Protection practice is highly regarded for litigating novel false advertising, deceptive marketing, and unfair business practices class actions under state and federal consumer laws across the United States. Our primary objective is to bring a full measure of justice to consumers and small businesses through the courts, while holding corporate wrongdoers responsible.

We welcome co-counsel opportunities, nationwide.

Scope of Practice

We represent consumers and small businesses in a range of false advertising, deceptive marketing, and unfair business practices, including:

  • Bait-and-switch and “negative option marketing” schemes
  • Failure to disclose
  • False advertising and mislabeling claims, including claims regulated by:
    • U.S. Department of Agriculture (USDA)
    • U.S. Food and Drug Administration (FDA)
    • U.S. Environmental Protection Agency (EPA)
  • Hidden, inflated or excessive fees
  • Algorithmic inflation/ Inflated metrics
  • Social media bots and deceptive online marketing
  • Other deceptive marketing and unfair business practices

We readily take on industry giants, including Facebook, Apple, Symantec (now Broadcom), Lumber Liquidators, and other online platforms, banks, credit card, insurance, telecom, software, food and beverage, and pharmaceutical companies.

Leadership

We are recognized by co-counsel and the judiciary for leading and managing large, complex multi-state and national false advertising, deceptive marketing and unfair business class actions, as well as for our collaborative co-counseling approach in such litigation.

The leaders of our False Advertising & Unfair Business Practice team are:

Victoria S. Nugent, co-chair of the Consumer Protection practice and immediate past co-chair of the Public Client practice, is a highly regarded consumer protection litigator, who has the unique, dual experience of overseeing significant consumer fraud investigations and litigation on behalf of state attorneys general, as well as litigating high-profile class actions brought on behalf of consumers. Ms. Nugent is named among Lawdragon’s 500 Leading Lawyers in America and its 500 Leading Plaintiff Consumer Lawyers, and The National Law Journal’s Plaintiffs’ Lawyers Trailblazers.

Geoffrey Graber, a former Deputy Associate Attorney General and Director of the Residential Mortgage-Backed Securities (RMBS) Working Group at the United States Department of Justice, Mr. Graber focuses almost exclusively on representing consumers and small businesses in complex class actions involving false advertising, fraud, data privacy theft and other forms of unfair business practices. He is also highly regarded for investigating and litigating “first-of-its-kind” class actions that involve novel technologies and forms of consumer abuse, including LLE One, LLC v. Facebook (N.D. Cal.), which addressed inflated social media advertising algorithms. In June 2020, the Court granted final approval of a $40 million settlement.

 

 

 

Resources

We have the internal resources to investigate and file, often, novel consumer class actions, sometimes in advance of Federal Trade Commission (FTC) or state Attorney General investigations. We also have the resources to deftly handle complex discovery, ensuring streamlined, efficiencies of scale, in large class actions.

Given our national footprint and experience handling false advertising, deceptive marketing, and unfair business litigation in a range of industries, we have access to and experience with many top industry and economic experts across the United States.

We have received numerous accolades for our work in consumer class action litigation:

Representative Matters

Algorithm Inflation/ Inflated Metrics

  • LLE One, LLC v. Facebook (N.D. Cal.): Cohen Milstein was Co-Lead Class Counsel in a significant certified consumer class action against Facebook, in which plaintiffs, U.S.-based Facebook advertisers asserted that Facebook violated California’s Unfair Competition Law (§ 17200) by misleading them about viewer engagement of video ads by using inflated video-viewing metrics. Plaintiffs further alleged that Facebook committed fraud because it knew about the issue but did nothing to correct it. In June 2020, the Court granted final approval of a $40 million settlement in a consolidated, consumer class action against Facebook.

  • DZ Reserve et al. v. Facebook (N.D. Cal.): On March 29, 2022, the Court granted class certification to advertisers in a false advertising, unfair business practices, and fraudulent misrepresentation class action against Meta Platforms Inc. (formally Facebook). Plaintiffs claim that Facebook’s key advertising metrics are false and misleading due to systemic inflation of Facebook’s user base.

False Advertising & Mislabeling

  • Ariza v. Luxottica Retail North America (LensCrafters) (E.D.N.Y.): On December 13, 2021, the Court granted class certification to purchasers of LensCrafters’ Accufit Digital Measurement System (Accufit) services. Plaintiffs allege that LensCrafters used false, misleading advertising and deceptive sales practices about Accufit being “five times more accurate” in measuring pupillary distance than traditional methods, to induce customers to purchase LensCrafter’s higher-priced prescription lens products.
  • Lumber Liquidators Chinese-Manufactured Flooring Products Liability Litigation (E.D. Va.): Cohen Milstein was Co-Lead Counsel in this consumer class action lawsuit, alleging Lumber Liquidators sold Chinese-made laminate flooring containing hazardous levels of the carcinogen formaldehyde while falsely labeling their products as met or exceeded California emissions standards, a story that was profiled twice on 60 Minutes in 2015. In October 2018, the Court granted final approval of a $36 million settlement.
  • In re StarLink Corn Product Liability Litigation (N.D. Ill.): Cohen Milstein represented farmers suing Aventis CropScience after an unapproved variety of genetically modified corn was detected in the U.S. corn supply and drove down prices for all U.S. corn exports. More than $100 million was recovered for the class in a landmark settlement.

Bait-and-Switch and “Negative Option Marketing” Schemes

  • Keithly v. Intelius, Inc. (W.D. Wash.): Cohen Milstein was Co-Lead Counsel in two related consumer class actions in Washington and California federal courts against Intelius, Inc., an online “people search” and “background check” platform, relating to negative option programs and improper post-transaction marketing of a subscription-based service, in which consumers unwittingly paid for subscription monthly – in perpetuity. The firm successfully negotiated two significant nationwide settlements, resulting in $12 million in cash to the class.

Hidden, Inflated or Excessive Fees

  • Herrera v. JFK Medical Center and HCA, Inc. (M.D. Fla.): Cohen Milstein successfully oversaw a state-wide consumer class action in Florida federal court, in which plaintiffs alleged that post-car accident emergency room patients were billed inflated fees for emergency radiology services, in excess of the amount allowed by law, covered in part by their mandatory Florida Personal Injury Protection (PIP) insurance. In December 2018, the court granted final approval of an injunctive relief settlement of $220 million.
  • Nationwide (N.D.N.Y.) and Country Life (Cook Cty. Ill. Cir. Ct.): Cohen Milstein helped lead two consumer class actions against two of the largest insurance companies, in which plaintiffs asserted that the insurers participated in sales marketing abuses in the marketing of so-called “vanishing premium policies.” Plaintiffs claimed that insurance agents sold insurance policies to unsuspecting consumers promising that after a relatively short time the dividends generated from the policy would be so high as to be able to fully pay the premiums. In fact, the calculations of the policies were based on unrealistic interest rate projections and, therefore, the premiums never “vanished.” Nationwide resulted in a settlement valued at between $85 million and $103 million, while a settlement with Country Life made $44 million in benefits available to policyholders.

Failure to Disclose

  • In re Apple Inc. Device Performance Litigation (N.D. Cal.): Cohen Milstein was court-appointed to the Plaintiffs’ Steering Committee and Co-Chair of the Expert Committee in this putative nationwide class action against Apple Inc., where owners of Apple’s iPhone SE, 6, 6 Plus, 6s, 6s Plus, 7, and 7 Plus, charged Apple with unfair and deceptive business practices in violation of California Business & Professions Code § 17200 and making material misrepresentations and failing to disclose material information related to Apple’s iOS software operating system updates, which would suddenly shut down phones. 
  • Khoday et al. v. Symantec Corp. et al. (D. Minn.): Cohen Milstein was lead counsel in a nationwide class action involving the marketing to consumers of a re-download service in conjunction with the sale of Norton software. In April 2016, the case settled in a $60 million all-cash deal a month before it was to go to trial – one of the most significant consumer settlements in years.