How Did They Do That?. Advertising Class Action Litigation Summary Anne G. Kimball, Esq. What Has Happened?. In the last year Four appellate courts affirmed dismissals of five cases Plaintiffs have withdrawn appeals in the 4th Circuit and U.S. Supreme Court
How Did They Do That?
Advertising Class Action Litigation Summary
Anne G. Kimball, Esq.
Hakki, District of Columbia
Wilson, North Carolina
Bertovich, West Virginia
December 2004 and January 2005
“There is nothing in the pleadings to allege the Plaintiffs have suffered actual injury from the challenged actions of the Defendants.”
“The Bertoviches’ Amended Complaint contains no allegation that directly links the Defendants’ acts or omissions to the Bertoviches’ alleged injury.”
Where state law vests exclusive authority to oversee all aspects of alcohol sales, including advertising, courts may not have jurisdiction over this kind of case.
“There are laws in place to protect against underage consumption of alcohol…. Enforcement of such laws is out of the hands of the manufacturers. Retail sellers, law enforcement and parents all have equal roles in the advancement and enforcement of such laws, and in otherwise preventing underage drinking.”
“In order for defendants’ alleged marketing tactics to result in any injury to the plaintiffs, at least two levels of third parties must intervene in violating the law.”
“Defendants are virtually powerless to prevent [underage drinking] and legally owe no duty to the parents of the underage drinker to protect against harm . . . caused by the criminal acts of both the child and at least one other adult.”
“To suggest that minors, because of their age, cannot understand that alcohol does not, in fact, make everyone more attractive, transport them to a tropical paradise, or other similar scenarios . . . is ridiculous at best.”
“Any attempt to regulate commercial speech associated with the marketing of a lawful product to those who are legally entitled to use it based on the presmise that such speech may also make the product attractive to those who are not legally entitlted to use it, might well run afoul of the First Amendment….”
“If these plaintiffs are convinced that alcohol advertising (i.e., First Amendment commercial speech) should be outlawed, then the means must be by legislation or constitutional amendment, not judicial fiat.”