The last thing the parties to a class action settlement want to see is an objection from state Attorneys General (AGs). AG objections to class action settlements are relatively rare and courts tend to give AG objections more weight than objections from private parties. Not all AG objections are successful, however, and in the recent consumer fraud case of Hesse v. Godiva Chocolatier, Inc., No. 1:19-cv-972-LAP (S.D.N.Y.), a six-state objection filed by the AGs of Florida, Idaho, Maryland, New Jersey, Ohio, and Utah failed to persuade Judge Loretta Preska to reject the proposed settlement.
Hesse concerned Godiva’s use of the word “Belgium” in labeling and promoting its products. According to the complaint, this practice led consumers to believe, incorrectly, that Godiva’s chocolates are made exclusively in Belgium and to pay higher prices for these products than they otherwise would have. The parties’ proposed settlement of those claims is fairly standard stuff. Anyone who purchased Godiva chocolate products between 2015 and last year could file claims to recover $1.25 per purchase. Class members with proof of purchase could recover up to $25 (for 20 purchases); those without proof were capped at $15 (for 12 purchases). Plaintiffs claimed actual damages to be $0.46 per purchase, so they characterized this relief as more than full recovery.
Starting now, national advertisers and retailers may want to pay the same attention to legislative and judicial developments in New Jersey that they long have paid in California.
New Jersey’s Governor, Phil Murphy, came into office in 2018 explicitly promising to remake New Jersey into “the California of the East Coast.” Recently reelected and holding leadership posts in both the National Governors Association and Democratic Governors Association, Governor Murphy is building a national profile.
When people talk about data privacy, or data collection, or tracking technology, or analytics, or click farms, or bots, or data brokers, or geolocation, or mobile apps, or social media, or influencers, in the end what they’re really talking about is digital advertising. Yet while we may feel comfortable using the phrase to broadly describe any online marketing efforts, the purpose of digital advertising is quite different from the goal of a 30 second radio spot, and shares little with its Mad Men-era ancestors beyond the name.
But today, faced with a variety of new laws and regulations designed to protect consumer privacy, lawyers and their clients are obliged to take a much deeper and more nuanced dive into modern methods of digital advertising. And many are surprised at what they find.
The ability of any individual, without access to sophisticated technology, to decipher the “authenticity” of any experience is diminishing daily. Moreover, this threat to the integrity of the law goes beyond digital impersonation and “deep fake” software driven by artificial intelligence. The famous Marx Brothers line, “Who ya gonna believe, me or your own eyes?” was once funny because it was ridiculous. Soon, it will be a description of our jobs and our lives.
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