plaintiff delay affects irreparable harm and balance of equities where third parties rely on defendant

Posted on May 29, 2026 by rtushnet

Pulling Guard Prods., LLC v. Lambert, No. 26-CV-2305
(PJS/LIB), 2026 WL 1481302 (D. Minn. May 27, 2026)

Plaintiff made a “strong showing” that defendants’
“Minnesota Monsters” name and branding infringe its “Duluth Harbor Monsters”
mark, though it didn’t show likely success on its claims for false advertising,
breach of contract, tortious interference with contract, tortious interference
with prospective economic advantage, unjust enrichment, and violation of the
Minnesota Deceptive Trade Practices Act.

I’m blogging this because the court relies on plaintiff’s
delay to deny a preliminary injunction (even though the court doesn’t mention
the statutory presumption of irreparable harm; other courts have reaffirmed
that delay can also rebut that presumption). The alleged infringement had been
going on for months—and was fully known to plaintiff—before it filed suit and
sought a preliminary injunction. “[A]t this point, it appears that little
additional harm will be caused by defendants’ continued infringement.”

The delay also had effects on the balance of equities:

[T]he potential harm of an
injuction to defendants has escalated dramatically now that the “Minnesota
Monsters” are nearly one-third of the way through their season. Additionally,
numerous innocent third parties could be harmed—including concession workers,
television broadcasters, players, and fans—if the Court were to order the
“Minnesota Monsters” to change its name and marketing in the middle of the
season.

from Blogger https://tushnet.blogspot.com/2026/05/plaintiff-delay-affects-irreparable.html

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a bot maybe accessed a former employer’s trade secrets; larger trade secret/false advertising issues ensure employer’s victory

Posted on May 29, 2026 by rtushnet

Capconvert, LLC v. Brown, 2026 WL 1471880, No.
26-cv-02149-CRB (N.D. Cal. May 26, 2026)

Capconvert sued its former employee Brown primarily over alleged
misappropriation of Capconvert’s trade secrets and confidential information for
use in a competing business venture involving search engine optimization (SEO),
generative engine optimization (GEO) (ugh), answer engine optimization (AEO) (double
ugh), and paid ad management services. The court followed an earlier TRO by granting
a preliminary injunction. I will focus only on the Lanham Act/California FAL
claims, except to note that the record contains a document, apparently a prompt
to an AI agent, stating “This is the most important rule you have. You violated
it on February 26th, 2026, and it nearly destroyed Ben’s career,” purportedly intended
to make it “abundantly clear to any agent that I was working with … to not
access any Capconvert … file.” However, another bot allegedly “disputed” that
any such access occurred. Where is the truth? It will likely take many, many
expensive hours of lawyer billing time to identify. So if you’re looking for a litigated
case to scare people about AI and trade secrets—it has arrived.

Brown’s competing service, Signyl claims to offer the same
services as Capconvert. Brown’s LinkedIn page described him as “Managing
Partner” of Capconvert, though that was never his role or title. It stated that
he worked on Capconvert’s Rankily product, but he did not. The Signyl website
states “200+ Brands managed $50M+ Ad spend optimized,” which cannot be true as
Signyl had only existed for one month. Brown had no relevant experience in SEO
prior to his time at Capconvert, and while there, only brought in one client. He
did not manage 200+ Brands or optimize a “$500M+ Ad spend.” The Signyl website
also appears to misrepresent Signyl’s performance metrics.

Brown  contended that
“the metrics displayed on that site did not relate to Capconvert work” but were
“derived from my work predating Capconvert” and that “any public statements I
made about my experience were intended to refer to my own prior professional
background and track record at Google.”

The court found many of the website claims “plainly false.”  “Signyl has no clients, let alone 200+ clients….
A banner that ‘runs across the front page of the Signyl.agency’ making claims
about particular experience necessarily suggests that the experience is that of
the company whose website it is. Those claims are false, at least as to Signyl.”
Likewise, the claims were material: “Representations of experience across
relevant services and with hundreds of brands would likely be material to
prospective clients seeking those services.”

However, while the LinkedIn statements were false, Capconvert
hadn’t yet demonstrated how it was likely to be injured as a result.

Irreparable harm as to the false advertising was presumed
under the Lanham Act, and shown for trade secrets.  “Signyl has only been operational for a couple
of months; that it has not yet poached any business from Capconvert using
Capconvert’s trade secrets and confidential/proprietary information or by
misrepresenting itself on its website does not mean that Signyl is not likely
to cause harm going forward.” Likewise, on the balance of equities, the court
commented: “Even if an injunction amounted to a shut down, just how much would
a preliminary injunction shut down?”

from Blogger https://tushnet.blogspot.com/2026/05/a-bot-maybe-accessed-former-employers.html

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Igloo must face biodegradability/recycled content/made in USA consumer claims

Posted on May 29, 2026 by rtushnet

Lieber v. Igloo Products Corp., — F.Supp.3d —-, 2026 WL
266301, No. 25-CV-488 (ARR) (LKE) (E.D.N.Y. Feb. 2, 2026)

I’ll get to the Igloo 9th Circuit case
eventually. This case is a putative consumer class action against Igloo,
alleging that its claims that its coolers are “biodegradable,” made of
“recycled content,” and “Made in the USA” are false and misleading under NY
law.  

First: Plaintiffs alleged that “biodegradable” would lead
reasonable consumers to believe that the product would completely degrade
within a reasonable period of time after customary disposal, but instead it
typically ends up in landfills after it is thrown out. The FTC’s Green Guides
say:

It is deceptive to make an
unqualified degradable claim for items entering the solid waste stream if the
items do not completely decompose within one year after customary disposal.
Unqualified degradable claims for items that are customarily disposed in landfills,
incinerators, and recycling facilities are deceptive because these locations do
not present conditions in which complete decomposition will occur within one
year.

NY law provides a “complete defense” to liability under its
false advertising provisions if the defendant’s “act or practice is … subject
to and complies with the rules and regulations of, and the statutes
administered by, the federal trade commission or any other official department,
division, commission or agency of the United States.” “A court may evaluate a
challenged representation’s compliance with the FTC’s Green Guides to determine
whether or not there is a complete defense to a claim under N.Y. G.B.L. §§ 349
and 350.”

Igloo argued that the claims should be dismissed because the
Green Guides don’t create a private right of action, but of course plaintiffs
were suing under NY law, not the Green Guides.

Igloo also argued that “the term ‘biodegradable’ does not
mean ‘will biodegrade’ or ‘destined for inevitable biodegradation,’ ” and
plaintiffs didn’t allege that the ReCool Product was inherently incapable of
biodegrading or that consumers knew about the Green Guides.

The court found deception plausible. It was plausible that
the products didn’t comply with the Green Guides; the complaint alleged that the
products were customarily disposed of in landfills, and lacked the necessary qualifications
for a biodegradability claim.

Second, Igloo made “recycled” claims about some products,
but plaintiffs alleged that only some parts were made from recycled plastic,
but not, e.g., foam insulation and interior linings, and cited the Green Guides
again:

Marketers can make unqualified
claims of recycled content if the entire product or package, excluding minor,
incidental components, is made from recycled material. For items that are
partially made of recycled material, the marketer should clearly and prominently
qualify the claim to avoid deception about the amount or percentage, by weight,
of recycled content.

This too was plausible at this stage. “While defendant cites
numerous decisions where courts declined to read ‘exclusively’ into an
advertising claim—such as whether the phrase ‘real cocoa’ on a product’s
packaging implied that a product is made exclusively of real cocoa—it fails to
consider that purchasing decisions are made within a specific context.”

Third, Igloo allegedly made Made in USA representations even
though not all or virtually all aspects of the relevant products, including the
raw materials, components, and manufacturing processes, originated from and
occured within the United States. Plaintiffs alleged that specific materials
were likely made outside the US, and full components such as hinges, handles,
drain plugs, bottle openers, spigots, washers, and wheels were allegedly imported
from manufacturers outside of the United States. The FTC defines “Made in the
United States” and its synonyms to mean “any unqualified representation[ ],
express or implied, that a product, and by extension, the raw materials used in
its manufacture, are of U.S. origin.” Thus, federal regulations consider it a
deceptive practice to label a product as “Made in the United States” or with
substantially similar representations unless (1) the final assembly or
processing of the product occurs in the United States, (2) all significant
processing that goes in the product occurs in the United States, and (3) all or
virtually all ingredients or components of the product are made and sourced in
the United States.

Even though plaintiffs only alleged that certain materials
were “likely” from outside the US, it was plausible that the claims were
deceptive.

Breach of express warranty claims failed for want of
sufficient pre-suit notice, and unjust enrichment claims were dismissed as
duplicative.

from Blogger https://tushnet.blogspot.com/2026/05/igloo-must-face-biodegradabilityrecycle.html

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America Unfinished: book announcement

Posted on May 29, 2026 by rtushnet

America Unfinished

250 Years of Law and Governance

Edited by Alexandra Natapoff and Guy-Uriel E. Charles

From the publisher:

An engaging and timely essay collection on the challenges,
risks, and opportunities of this historic moment in American law and
governance.

1,000-word essays from the country’s leading legal scholars and experts.

It
is the 250th anniversary of the Declaration of Independence, and the
U.S. is grappling with foundational challenges to its laws, institutions
of governance, and civic culture. Longstanding values of pluralism are
being challenged. The nation is beset by deep political polarization, a
fear that the economic order is no longer providing opportunities for
all, and a technology revolution that may unsettle what it means to be
uniquely human. America Unfinished brings together more than 50
legal scholars on the Harvard Law School faculty to analyze this
historic moment in American law and governance.

Edited by
Alexandra Natapoff and Guy-Uriel Charles, the book coheres around the
dramatic experiment in American legal governance that began in 1776,
still highly contested after 250 years. Some essays explore the modern
expansion of executive power, including its recent and dramatic
willingness to use violence, both domestically and internationally.
Other essays examine longstanding divides between workers, consumers,
and markets, and the hard questions they raise about democratic
accountability in our market-driven economy. And finally, some
contributors address the future of our knowledge and governance
institutions under pressure from the disruptions caused by technological
and informational revolution.

Dynamic and engaging, the
collection does nothing less than advance the core conversations
necessary for a thriving polity, both at this historic moment and for
decades to come.

Contributors: Bill Alford,
Sabrineh Ardalan, Yochai Benkler, Sharon Block, Nikolas Bowie, Maureen
Brady, Scott Brewer, Stephen Breyer, Emily Broad Leib, Tomiko
Brown-Nagin, Guy-Uriel E. Charles, John Coates, I. Glenn Cohen, Andrew
Manuel Crespo, Christine Desan, Kristen E. Eichensehr, Benjamin
Eidelson, Jared Ellias, Susan H. Farbstein, Noah Feldman, Jody Freeman,
D. James Greiner, John Goldberg, Annette Gordon-Reed, Sheila Heen,
Howell Jackson, Elizabeth Papp Kamali, Randall Kennedy, Michael Klarman,
Adriaan Lanni, Eloise Lawrence, Richard Lazarus, Jill Lepore, Lawrence
Lessig, Kenneth W. Mack, Bruce H. Mann, Martha Minow, Daniel Nagin,
Alexandra Natapoff, Charles Nesson, Gerald L. Neuman, Ruth L. Okediji,
Mariana Pargendler, Intisar A. Rabb, Richard M. Re, Daphna Renan, Mark
J. Roe, Benjamin Sachs, Stephen E. Sachs, Larry Schwartztol, Joseph
William Singer, Carol Steiker, Nicholas Stephanopoulos, Kristen A.
Stilt, Ronald Sullivan, Cass R. Sunstein, Philip Torrey, Rebecca
Tushnet, Dehlia Umunna, Rachel A. Viscomi, Laura Weinrib, Alex Whiting,
David Wilkins, and Jonathan Zittrain.

“A
thoughtful, insightful, and informed collection of essays addressing
some of the most urgent issues facing our nation today.  A valuable
contribution to understanding America at a critical moment.” 

—Bryan Stevenson, Founder and Executive Director of the Equal Justice Initiative; author of Just Mercy

 

“This
thought-provoking collection of 62 short essays — some of them odd,
some provocative, some insightful, and some even beautiful — is a
remarkable gift to the nation on its 250th birthday.” 

–Michael
W. McConnell, Richard & Frances Mallery Professor, Stanford Law
School, Director, Stanford Constitutional Law Center, Senior Fellow,
Hoover Institution

 

 “A
must-read collection. These essays show myriad ways that American law
has secured, betrayed, and threatened American liberty as the
Declaration of Independence turns 250. They indict and inspire—at once
dark, practical, brilliant, and deeply moving.” 

         –Reva Siegel, Nicholas deB. Katzenbach Professor, Yale Law School

  

“An astonishingly wide array of reflections on the condition of America today. An irreplaceable book.”

 –William Baude, Harry Kalven, Jr. Professor of Law, University of Chicago Law School  

  

“A timely and provocative collection of essays from some of the nation’s most thoughtful and prolific scholars, America Unfinished is a crucial step toward a more perfect union.” 

–Melissa Murray, Frederick I. and Grace Stokes Professor of Law, New York University

from Blogger https://tushnet.blogspot.com/2026/05/america-unfinished-book-announcement.html

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competitor lacks standing under Cal. law because it didn’t rely on alleged misrepresentations; its customers did

Posted on May 27, 2026 by rtushnet

Kachuck Enters. v. Mission Produce, Inc., — F.Supp.3d —-,
2026 WL 216475, No. 2:25-cv-01523-AH-JCx (C.D. Cal. Jan. 22, 2026)

This was a putative class action about alleged
misrepresentations made by distributors and suppliers of Mexican-grown avocados
that their avocados are sustainably and responsibly sourced. Plaintiffs, California
avocado farmers, alleged losses from defendants’ touting of “unsustainably
grown Mexican avocados as ‘sustainable’ to consumers.”

Despite representations about water conservation,
biodiversity, and soil health, defendants allegedly source their avocados from
Mexican orchards installed on lands recently deforested without the proper
permits from Mexican authorities. “Sourcing avocados from deforested land
exacerbates ongoing water scarcity in Mexico, contributes to climate change,
and leads to habitat and biodiversity loss.” Plaintiffs cited various surveys
showing that “significant segments” of U.S. consumers prioritize sustainability
and more transparency from food producers and retailers throughout the entire
food supply chain. Another survey “found that more than half … of consumers
indicated they are willing to spend more money on products that are deemed
sustainable or environmentally friendly.”

Plaintiffs brought the usual
California statutory claims. The court found no standing under the FAL and
the “fraudulent” prong of the UCL because plaintiffs didn’t allege their own
reliance on the false claims; rather, they alleged that they were harmed by
consumers’ reliance on the allegedly false claims. This reasoning seems dumb—these
laws were intended to protect competitors as well as consumers—and the court noted
an increasing minority of federal district courts have rejected it. It’s
probably time for the 9th Circuit to certify a question, though I don’t
have much doubt that the California Supreme Court will clarify that consumer reliance
is required, but not competitor reliance.

As for unfair competition/UCL unfairness, the court applied
the “tethering” test, which applies in actions “by a competitor alleging
anticompetitive practices.” A finding of unfairness must be “tethered to some
legislatively declared policy or proof of some actual or threatened impact on
competition”: “conduct that threatens an incipient violation of an antitrust
law, or violates the policy or spirit of one of those laws …, or otherwise
significantly threatens or harms competition.”

The test was not satisfied. Although plaintiffs argued in
briefing that “Defendants’ influx of cheaply priced and unsustainably—and
possibly illegally—sourced avocados distorts the market,” while plaintiffs must
comply with strict sustainability requirements, while the complaint focused only
on defendants’ acts of “offering for sale and selling deceptively labeled
Mexican avocados” and “deceptively marketing products.”

Regardless, that theory wasn’t enough. Plaintiffs argued
that defendants’ sourcing practices are exploitative because they are “possible
only by entities with sufficient size and power to dominate operations in
foreign countries with weaker environmental regulations” and they “exploit
residents of a foreign country and contribute to the wholesale destruction of
forests.” Thus, “Defendants leverage their size and reach to flood the market
with avocados, boxing out competitors.” But these were “conclusory assertions,”
and didn’t explain what part of antitrust law was implicated.  Nothing in the FTC Act specifically “precludes
a business from sourcing its products in a lower-cost country where
environmental laws or other safeguards may be less stringent than in the United
States,” and sourcing products abroad is not an FTC Act violation “simply
because regulatory conditions in those countries make the cost of production
lower.” Plus, injury to competitors isn’t injury to competition. [That argument
rings particularly hollow where the alleged distortions operate on whole
countries’ worth of businesses.]

from Blogger https://tushnet.blogspot.com/2026/05/competitor-lacks-standing-under-cal-law.html

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despite some skepticism, court mostly allows adtech vendor’s disparagement claims against competitor to proceed

Posted on May 27, 2026 by rtushnet

Double Verify Holdings, Inc. v. Adalytics Research, LLC, No.
25-1535-TDC, 2026 WL 1133411 (D. Md. Apr. 27, 2026)

DoubleVerify is in the business of “helping brands,
agencies, and publishers verify that their digital advertising investments are
delivered as intended.” Its customers advertise online and thus seek to ensure maximum
viewership by real potential consumers. “Online ads are typically placed on
websites through a high-speed, auction-like process.” The auctioneer, a
“demand-side platform,” collects “bids” from advertisers; this is the “pre-bid”
stage. If an advertiser’s bid is accepted and its ad is displayed, or “served,”
to the webpage visitor, the advertiser will be billed for the “impression.”

Online advertisers retain DoubleVerify to avoid having their
ads served to bots rather than to humans, and to avoid paying for such
impressions if they do occur. DoubleVerify offers two solutions to help
customers avoid paying for views resulting from bot activity, aka invalid
traffic (IVT): it claims that its pre-bid service successfully filters out 99
percent of GIVT impressions at the pre-bid stage, but it also offers a
post-serve service that (1) identifies and removes views resulting from standard
bot IVT (GIVT) from the counts of billable views and (2) notifies customers
about views resulting from malicious IVT so that they may then seek
reimbursement from the publishers. Users can use the pre-bid service, the post-serve
service, or both.

Adalytics is an “ ‘ad-tech’ vendor” that “sells an ad
transparency service that competes with DoubleVerify” and allegedly carried out
a disparagement campaign. Its report quoted DoubleVerify’s claim that it
“offers the most comprehensive and accurate pre-bid avoidance targeting
available in the market” but didn’t mention DoubleVerify’s post-serve services.

The Report claimed to be the “largest analysis of declared
bot traffic in the context of digital advertising.” Relevant claims: (1) “Many
publishers which appear to employ the IAS and DoubleVerify publisher
optimization tools on their pages were observed serving ads to bots, including
to declared bots operating out of known data center IP addresses.” (2) “Hundreds
of major brands whose ads’ source code include[s] … code from DoubleVerify
appear to have had their ads served to bots in data centers.” (3) Advertisers
“whose ads appear to be mediated by DoubleVerify’s Scibids AI technology” were
served “to declared bots operating out of known data center IP addresses or to
URLScan[’s] bots.”

It concluded that “[i]nterpreting the results of this
observational study requires nuance and caution,” and that “[o]ne should not
assume that because a given ad tech vendor or vendors transacted a given ad to
a bot that those vendors are somehow responsible or ‘at fault’ for the ad being
served to a bot.” The Report also cautioned that “[r]eaders should be
discerning and careful not to conflate distinct sets of observations or draw
inferences about causality, intent, quantitative impact, magnitude, or
provenance,” and that it “makes no assertions about” these issues. And it said
that it “does not make any recommendations to media buyers with regards to
whether or not to transact with specific ad vendors or with specific publishers,”
but advised that advertisers “may benefit from undertaking a closer review of
their digital advertising.”

DoubleVerify argued that, based on Adalytics’s “willful
blindness to post-serve detection and filtration,” the Report “falsely and
misleadingly portrays DoubleVerify’s web advertisement verification and fraud
protection services as ineffective, including by stating or clearly implying
that DoubleVerify’s customers are regularly billed for GIVT impressions.” In
addition, references to DoubleVerify in the source code on webpages from which
ads were served to bots could have occurred in relation to DoubleVerify
customers who did not use its pre-bid services. DoubleVerify alleged that, for
all of the ad views, or impressions, cited in the Report that were ostensibly
connected to DoubleVerify and that it was able to identify in its records, it
confirmed that it had actually detected such impressions at the post-serve
stage and either removed them from customers’ billable counts or flagged them
for reimbursement.

DoubleVerify alleged additional false or misleading
statements or material omissions, including using 115 screenshots of
advertisements presented in the Report as having been served by DoubleVerify
customers where at least 62 had no apparent connection to DoubleVerify.

DoubleVerify alleged reputational and financial harm from
dissemination of these claims, including a WSJ article titled “Efforts to Weed
Out Fake Users for Online Advertisers Fall Short,” which stated that
DoubleVerify “regularly miss[es] nonhuman traffic.” DoubleVerify’s stock price fell,
and it allegedly had to expend employee time and resources to counter the
Report. It therefore sued for false advertising under the Lanham Act as well as
defamation, injurious falsehood, tortious interference with business relations,
and unfair competition.

Was this a “commercial advertisement or promotion”? “Although
the Report reads more like an analysis of other products and related technology
than a communication aimed at selling Adalytics’s own goods or services,
DoubleVerify asserts that Adalytics publishes research of this kind because it ‘uses
its blog posts and articles to promote its own platform’ and supports that
claim by pointing to a February 2025 statement on Adalytics’s website that it ‘release[s]
thought leadership on systemic issues affecting brands and their media
investments … to … attract new clientele.’” And it alleged an economic motivation
for publishing: to win new business from customers of DoubleVerify.

Although the Report didn’t promote a specific product, that
wasn’t dispositive of whether this was commercial speech. Nor was whether this
was a traditional “advertisement.” At this stage, Adalytics’ direct competition
and commercial motivation was enough: “the Report could potentially constitute
commercial speech where its focus was the dissemination of the results of an
analysis critical of a competitor’s product or service.” And allegations about
harm to DoubleVerify’s stock price and “inbound calls from its customers
regarding the effectiveness of DoubleVerify’s services” adequately alleged that
the Report was “sufficiently disseminated to the relevant purchasing public to
constitute advertising or promotion within that industry.”

Adalytics claimed that the challenged statements were all
protected opinions on scientific and technical matters. The court disagreed
(reaching the same result on defamation).

Defamation: most of the challenged statements weren’t alleged
to be literally false. For example, the complaint conceded that DoubleVerify’s
pre-bid services do not actually prevent all ads from being delivered to bots
when it acknowledged that those pre-bid services filter out only “99% of
unwanted GIVT impressions.” But defamation by implication was possible. Under governing
Maryland law, if “the expressed facts are literally true,” a plaintiff pursuing
a defamation-by-implication theory “must make an especially rigorous showing”
and may prevail only if the challenged language “affirmatively suggest[s] that
the author intends or endorses the inference.”

The court found it significant that the Report stated that
“impression level log file data and financial invoices suggested that
advertisers were billed by ad tech vendors for ad impressions served to
declared bots operating out of known data center server farms.” This was fairly
implied to relate to DoubleVerify. Also, the Report plausibly misled when it
claimed to be able to identify whether a given brand had been charged for bot
avoidance services, even when these impressions could have been served by
DoubleVerify customers that do not have pre-bid solutions enabled. The court
was a bit skeptical—DoubleVerify didn’t allege that any material number of its
customers place online ads without enabling DoubleVerify’s pre-bid solutions—but
the case was in an early stage.

Assuming, without deciding, that DoubleVerify had to plead
an endorsement of the defamatory implications even though DoubleVerify wasn’t a
public official, it was plausible that Adalytics, which “claimed expertise in
advertising technology,” would understand that “DoubleVerify’s customers, in
accordance with industry standards, would not be charged for pre-bid
impressions served to bots once DoubleVerify’s post-serve processes were run.”
Also, DoubleVerify’s “pre-emptive article,” published two months before the
Report, put Adalytics on notice. And Adalytics allegedly illustrated its intent
to disseminate defamatory information because it sent a draft version of the
Report to certain media outlets but never requested any comment from
DoubleVerify. These allegations were sufficient if not “overly compelling.”

The disclaimer wasn’t sufficient because it didn’t specifically
disclaim the allegedly defamatory implication.

Nor was the Report protected opinion. “[A]lthough Adalytics
used some technical methods in the Report, it was published on the company’s
general website and was not a peer-reviewed scientific or technical journal
article such as those at issue in cases cited by Adalytics on this point.”Even
assuming that DoubleVerify was a limited-purpose public figure, it alleged
sufficient facts for actual malice, noted above.

Injurious falsehood claims also survived.  Expenses incurred when countering the
publication of the Report were sufficient to allege special damage. Common-law
unfair competition also survived, but tortious interference claims failed because
Double Verify didn’t “identify a possible future relationship which is likely
to occur, absent the interference, with specificity.”

from Blogger https://tushnet.blogspot.com/2026/05/despite-some-skepticism-court-mostly.html

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9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

Posted on May 26, 2026 by rtushnet

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May
15, 2026)

Perfect summary:

The defendant company in this case
represented to consumers that its berry snacks product contained no artificial
flavors. The plaintiff bought the product believing the representation to be
true. It turned out, however, that the product contained an artificial flavor.
Laboratory testing revealed that the product’s flavoring was not naturally
occurring but made from an artificial petroleum substrate. At least this is
what the plaintiff alleged (albeit with more detail) in his complaint. The
district court concluded, however, that the plaintiff failed to state a claim
and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural
Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while
the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA,
unjust enrichment, and breach of express warranty. Although the product represents
that it is free of artificial colors and flavors, it allegedly contains an
artificial flavor, malic acid. Natural malic acid, derived from natural fruit
sources, is commonly known as “L malic acid,” while artificial malic acid,
derived from a petroleum substrate and other synthetic components, is commonly
referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory
and that the testing results “establishe[d] that the malic acid used in these
Products is DL malic acid, and not L malic acid.” Allegedly, the test used the
“industry standard” method for testing for the “D isomer” of malic acid, which
is “not present in any amount in” natural malic acid and which would indicate
“the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly
allege that the malic acid was artificial, and that a reasonable consumer
wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry &
Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable
consumer would not interpret the front label as unambiguously representing that
[the Product] does not contain artificial ingredients.” The back label
statement “Free of . . . Artificial Colors & Flavors” was not deceptive
because the back label “discloses both natural and artificial ingredients in
plain text.” “[N]owhere on the front or back label does it state that the
product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’”
so “nothing about this product—a brightly colored, shelf-stable licorice
candy—would lead a reasonable consumer to conclude that [the Product] is free
of artificial ingredients when the product labels make no affirmative
representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave
notice to the defendant and provided the court with “some assurance” that his
theory of liability “has a basis in fact.” Trammell alleged the specific
laboratory that performed the testing; he provided a date of the testing; he
explained the qualifications of the laboratory (“a reputable independent food
testing and analysis laboratory that has conducted testing for the food and
beverage industry since 1984”); and he discussed the laboratory’s “industry
standard” methodology for detecting artificial malic acid by testing for the
presence of the “D isomer” of malic acid, which is “not present in any amount”
in natural malic acid. That was specific enough, and more specific than the
allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a
reasonable consumer is likely to be deceived by a product that claims to be
free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural
Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false
or misleading, the back label makes a specific claim about being “Free of . . .
Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false
or misleading.

Nor, contrary to the district court’s reasoning, did the back
label actually disclose both natural and artificial ingredients:

The ingredients list on the back
label does not disclose, on its face, which of the ingredients are artificial.
Indeed, despite claiming that artificial ingredients are plainly disclosed,
neither the district court nor Defendant identifies which ingredients are
artificial. Some ingredients, like “malic acid,” may come in two forms—natural
or artificial. But the list does not say which it is. A reasonable consumer,
not being a chemist, is not in a position to make that assessment when buying
the Product. What a reasonable consumer can understand is the Product’s
representation that there are no artificial flavors. When that clear
representation is placed next to an ingredients list—a list that does not make
apparent (1) which ingredients are flavors and (2) which of those ingredients
are artificial—a reasonable consumer could plausibly be (mis)led into believing
that the Product does not contain artificial flavors. If anything, the
ingredients list here—which does include an ingredient called “natural flavor”—reinforces
the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100%
natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that
those things were false, but rather that the product was not free of artificial
flavors. The fact that the product is “a brightly colored, shelf-stable
licorice candy” “may go to the artificiality of the coloring and preservative;
they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a
mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic
acid falls under in the FDA’s regulatory scheme, the question is what a
reasonable consumer expects, not what a regulatory expert in the
food-and-beverage industry knows. And here, Trammell has plausibly alleged that
a reasonable consumer expects the Product to be free of artificial flavors and
that it would be misleading to that consumer if the Product contained an
artificial petroleum substrate as a flavoring—whether as a flavor itself or as
a flavor enhancement.”

from Blogger https://tushnet.blogspot.com/2026/05/9th-circuit-reverses-dismissal-where.html

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Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

Posted on May 26, 2026 by rtushnet

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by
Harvard, NYU, and the University of Pennsylvania will take place this
year at NYU. Now in its fifth year, the Roundtable is designed to be a
forum for the discussion of current trademark, unfair competition, and
right of publicity scholarship, covering a range of methodologies,
topics, and perspectives. Five to six papers will be chosen for
discussion over the course of the Roundtable, with each paper allocated
an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a
critical mass of papers, we may also extend the Roundtable through
Saturday morning, October 17. Participation at the Roundtable will be
limited and invitation-only and we expect all participants to have read
the papers in advance. We will ask participants to rely if possible on
research accounts to cover travel and accommodation, but if that is not
possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark,
false advertising, marketing, right of publicity, or related areas of
the law. Priority will be given to those who can attend the entire event
and a dinner the night of Friday, October 16. Submissions must be of
full drafts in Microsoft word format. The deadline for submission is
June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

from Blogger https://tushnet.blogspot.com/2026/05/reminder-pennnyuharvard-trademark-and.html

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mix-and-match ad campaign actionable but “instant whitening” claims were mere puffery

Posted on May 26, 2026 by rtushnet

Ledesma v. Hismile, Inc., 2026 WL 1146742, No.
24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously.
Here, the plaintiffs provide enough allegations about the challenged
teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of
algorithmically generated ads, but still lose on puffery grounds. In essence,
defendants allegedly exaggerated the teeth-whitening capabilities of their
products through various means, such as unnaturally bright lighting and models
who already have very white teeth, fake reviews, fake customer videos, claims
of clinical proof, and claims of “color correction technology: purple and
yellow are complementary colors opposite to each other on the color wheel, so
purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted
on defendants’ social media accounts using the same core advertising methods,
and that many advertisements “reus[e] the exact same clips in a different
order, or with different actors reading similar scripts and acting out similar
scenarios.” They brought California
and NY claims.

Defendants argued that plaintiffs failed to identify the
specific advertisements that they saw. But “California courts have recognized
an exception to the requirement that a plaintiff identify the specific
advertisement they relied upon ‘where a claim of fraud is based upon a
long-term advertising campaign, which may seek to persuade by cumulative impact,
not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged
that the ad campaign began more than ten years ago and saturates social media
user feeds with videos, many of which reuse the same clips in different orders
or with different actors reading similar scripts or acting out similar
scenarios, all touting “the same false core message: that Hismile’s Products
deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently
alleged their own individual exposure to this advertising campaign, including
when and/or how long they saw the advertisements, what social media platforms
they saw the advertisements on, more specific examples of the types of
advertisements they saw, and the effect of those advertisements on Plaintiffs’
perception of the product — namely, that the products “would produce an
instant whitening effect.” That sufficed under Rule 9(b) to identify the who
(Defendants), what (the advertising campaign and the types of advertisements
viewed by Plaintiffs), when (the length of the advertising campaign and
approximately when Plaintiffs were exposed to it), where (the social media
platforms Plaintiffs viewed the ads on), and how (the allegedly false claim
spread by the advertising campaign that Defendants’ products “instantly” whiten
teeth).

Defendants argued that plaintiffs should have identified specific
ads because they were still “readily accessible” on defendants’ social media. “But
this argument only highlights the difficulty of identifying the specific
advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account
posts at a rate of 15 or more videos a day, which results in over 1,000 videos
in the span of 67 days. …To require that a plaintiff comb through hundreds to
thousands of similar videos advertisements (assuming the viewed advertisement
is still available) imposes a potentially insurmountable burden.” The court
wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the
allegedly false/misleading influencers and customer reviews upon which they
relied.

However, the case still had to be dismissed because “instant”
whitening was puffery. (What about the clinical proof claim, above?) “Instant”
wasn’t a quantifiable statement, but a general, subjective claim. Nor could
plaintiffs use the duration of ads/demos during ads to show that defendants
gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At
what point in time would ‘instant’ no longer be an accurate description?” After
all, “many things are advertised as ‘instant’ — instant noodles, instant
oatmeal, instant film, instant stain remover — that are not literally instant
but can take several minutes even if they are significantly faster than their
non-instant counterparts.”

from Blogger https://tushnet.blogspot.com/2026/05/mix-and-match-ad-campaign-actionable.html

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Costco’s “free shipping” claims plausibly deceptive if online price is raised to account for shipping

Posted on May 26, 2026 by rtushnet

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No.
2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims
related to price differences between items that Costco sells online and
in-store: online, Costco charges more for big-ticket items like couches to
cover shipping, but advertises “free shipping.”  For example, one couch is available for
$2,099.99 when bought in a physical Costco store but costs $2,399.99 when
purchased online, and at checkout, “Shipping & Handling” is listed as
“$0.00.” Within the online listing, in light grey font, Costco says that
“Delivery, setup and packing removal [are] included,” and that “Items may be
available in your local warehouse, prices may vary.” Also, there’s a webpage
that says “Costco.com prices take into account shipping and handling fees not
applicable to warehouse purchases,” but plaintiff alleged that “she was not
presented with, and did not read, the fine print on Defendant’s customer
service webpage admitting that those representations were false.” She brought
claims under the Washington Consumer Protection Act (CPA) and California’s FAL,
UCL, and CLRA, along with claims for breach of contract, breach of
warranty, quasi-contract/unjust enrichment, and negligent and intentional
misrepresentation, which the court declined to dismiss. I won’t discuss many of
the details.

Costco argued that it disclosed the price differences and
shipping costs. Online, the listing states that “[d]elivery, setup, and
packaging removal included” in the stated price, and elsewhere on the website, it
discloses that items are cheaper if bought in-store. Thus, believing that one
would pay the same for the couch online as in the warehouse and pay nothing to
have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping
& Handling $0.00,” induces reasonable consumers into believing they are
paying $0.00 for shipping, and that general disclaimers (that items are
available at a lower price in its warehouses) do not “negate the clear message
that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The
court found no previous case to be entirely on point, but, at the motion to
dismiss stage, this theory was plausible. The online listing didn’t state that
the prices will be lower in-store: It states that the “prices may vary.” And
plaintiff plausibly alleged that consumers “expect free shipping,” given the
ubiquity of online shopping, even for large purchases like furniture.  

As for injury under Washington consumer protection law, it
was enough to allege that she “would not have made the online purchase if she
had known that she was paying for shipping or that Defendant charged more for
the product online.”

from Blogger https://tushnet.blogspot.com/2026/05/costcos-free-shipping-claims-plausibly.html

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