Kramer Levin Obtains Dismissal With Prejudice of Putative Class Action Over Advertising for Ovulation Test Kits on Behalf of Swiss Precision Diagnostic GmbH’s Clearblue Brand

Kramer Levin represented SPD Swiss Precision Diagnostics GmbH, maker of Clearblue at-home ovulation test kits, in securing the dismissal of a putative consumer class action brought under New York and California consumer deception laws against every major manufacturer of at-home ovulation test kits on the U.S. market. Plaintiffs alleged that the words “ovulation test kit" and “99% accurate" on the labels of Clearblue and other brands of at-home ovulation test kits deceived consumers because the kits do not directly detect ovulation, but instead detect the surge in luteinizing hormone that precedes ovulation. Judge Ramón E. Reyes Jr. of the United States District Court for the Eastern District of New York granted defendants' motion to dismiss with prejudice, holding that defendants' packaging cannot deceive reasonable consumers as a matter of law.