NAD Decision Did Not Support Class Action Suit Against Bayer

One of the disturbing trends for advertisers over the last few years has been the class action bar's interest in NAD decisions and its review of such decisions to provide fodder for consumer fraud cases. As a result, advertisers and challengers have had to consider the risk of a class action pile-on when engaging in cases at NAD. A recent court decision, however, may help to dampen the class action bar's interest in using the self-regulatory forum's decisions as a weapon.

On February 11, 2013, Judge Stanley R. Chesler, United States District Judge for the District of New Jersey, held in an unpublished decision that a report from the National Advertising Division of the Better Business Bureau ("NAD") provided insufficient support for class action plaintiffs' claims of false advertising and misrepresentation under the New Jersey Consumer Fraud Act ("NJCFA").