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The recent spate of false advertising lawsuits, particularly state consumer protection class actions, may be affected by a New York appellate ruling in May in Solomon v. Bell Atlantic Corp. that decertified a class of around 200,000 New York subscribers to Bell Atlantic’s (now Verizon) Digital Subscriber Line (DSL) service. When a lower court had certified the class, New York joined other states such as California, Florida, Ohio, Illinois and Missouri, whose courts have held that classes may be certified without requiring proof that each class member relied upon or even was exposed to the allegedly deceptive advertising. While the defendant asserted that individual issues predominated-the ads hawking DSL speed and ease appeared in different media using varying language-the lower court found that the advertisements conveyed substantially the same message. Reasoning that reliance by the plaintiff was not a requirement of a false advertising claim, the lower court concluded that an “objective assessment” of the truth or falsity of the challenged advertising would be “uniform” as to all class members, thus obviating individual-reliance questions. The New York intermediate appellate court would have none of it, holding that a “uniform” assessment of the defendant’s advertising failed to address important facts-including that some subscribers never saw any advertisements at all. And even if they had seen them, the court reasoned, there were still questions, “given the alternative sources of information about DSL service that each may have had.” Hence, questions of individual class members’ exposure to the advertising predominate, making class certification erroneous. Yet advertisers in New York are by no means out of the woods. The Solomon court acknowledged that class certification for a false advertising claim “may be appropriate where the plaintiffs allege that all members of the class were exposed to the same misrepresentations.” This is consistent with the U.S. District Court for the Southern District of New York’s decision in the much publicized McDonald’s case, in which the court (applying New York law) found that there was no reliance requirement under New York false advertising law, but added that there is a need to show “some kind of connection between the allegedly deceptive practice and the plaintiffs’ injuries.” The case was dismissed for failure to demonstrate an adequate causal connection between consumption of McDonald’s food and the alleged injuries. Other states, more worries The situation remains equally, if not more, ominous for advertisers in other states. California courts repeatedly have held that a class action may proceed in the absence of individualized proof of reliance on the alleged misrepresentation. In Illinois, in the now infamous Price v. Philip Morris case (now on appeal), the Madison County trial court certified a class and awarded $10 billion in damages without any showing that each class member relied upon, or even was exposed to, the allegedly deceptive advertising, relying instead on expert testimony about the impact of advertising. In contrast, the same claims were made in Massachusetts in Aspinal v. Philip Morris, and a state appellate court decertified the putative class “absent any manner or means of causation suggesting a link between Philip Morris’ allegedly deceptive advertising” and the alleged damages to class members. In addition to the lack of commonality arguments that can be used successfully to defeat class certification, a strong First Amendment argument can be made. There is a chilling effect on free speech if false advertising cases are allowed to proceed without a requirement that plaintiffs show that they relied upon and were harmed by the challenged advertising. This point was made persuasively in Nike v. Kasky. It is an argument that should continue to be made at every opportunity. Hugh Latimer is co-chairman of Wiley Rein & Fielding’s advertising practice. He can be reached at [email protected].

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