Unclean (but collagen rich) hands in a false advertising case

Certified Nutraceuticals, Inc. v. Avicenna Nutraceutical,
LLC, 2018 WL 3361142, No. 16-cv-02810-BEN-BGS (C.D. Cal. Jul. 10, 2018)
A rare unclean hands victory in a false advertising case.  Certified alleged that Avicenna, its
competitor in the market for collagen products used as ingredients in other
products, falsely advertised its products as “patented” or processed using
“patented formulas and production methods” while Avicenna never held any
relevant patents.
To prevail on a defense of unclean hands, a defendant must
demonstrate by clear and convincing evidence: (1) “that the plaintiff’s conduct
is inequitable;” and (2) “that the conduct relates to the subject matter of
[the plaintiff’s] claims.” Even in such cases, unclean hands isn’t
automatically a defense; the plaintiff’s wrongdoing must be balanced against
the defendant’s, considering the substance of the plaintiff’s rights.
In the Ninth Circuit, “only a showing of wrongfulness,
willfulness, bad faith, or gross negligence, proved by clear and convincing
evidence, will establish sufficient culpability for invocation of the doctrine
of unclean hands.”  Here, Avicenna
established that Certified falsely claimed patent protection for its competing
product, over a year before the PTO granted any Certified patent.  Certified argued that its product was covered
by a different patent, but Certified wasn’t an owner, assignee, or licensee of that
patent at that time or since, perhaps because of a permanent injunction against
a Certified principal enjoining him from transferring, enforcing, or otherwise
affecting the title to that patent. 
Certified’s only other evidence that the statements weren’t false or
misleading was a false statement that the principal was the assignee of a
patent that was a continuation of the enjoined patent.  Thus, the court found that Certified
knowingly made statements about the patented nature of its product—either
because it knew the later patent hadn’t been issued, or because it knew it had
no right to manufacture, distribute, offer for sale, or sell any goods under
the continuation patent.  Avicenni showed
Certified’s wrongfulness, willfulness, and bad faith in engaging in inequitable
conduct with clear and convincing evidence. [I’m not sure courts would find
that claiming patent protection when the patent was pending always meets this
standard, though it would usually have to be knowing.]
Did this inequitable conduct relate to Avicenna’s false
advertising claim? Unclean hands should only be applied “where some
unconscionable act of one coming for relief has immediate and necessary
relation to the equity that he seeks in respect of the matter in litigation,” which
means that the plaintiff dirtied its hands “in acquiring the right” presently
asserted or “the manner of dirtying renders inequitable the assertion of such
rights against the defendants.” Even though the statements were now years old,
there was still an immediate and necessary relationship to the equitable
remedies sought, because they were about the patented status of the directly
competing products.
Summary judgment on Lanham Act claims granted; coordinate
state-law claims dismissed for want of supplemental jurisdiction.

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TM/False advertising issue of the day

Seen on the street in NYC; the candies have no marijuana content–they’re sold as “adult” candies, furthering the impression. My daughter also asked “Could the owners of Scooby Doo sue?” and then, because I have taught her well, corrected that to “Could the owners of Scooby Doo win?”

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False designation damages require proximate cause, dooming $250 million jury award

ZeniMax Media Inc. v. Oculus VR LLC, No. 14-cv-01849 (N.D.
Tex. Jun. 27, 2018)
After trial of this case, the jury returned a verdict,
finding in relevant part that defendants were liable for false designation of
origin, basically about the origins of Oculus’s technology with a lagniappe of
use of ZeniMax’s trademarks in a Kickstarter promotion. The jury awarded actual
damages of $250 million in total for the false designation of origin. The court
granted judgment as a matter of law because the record lacked legally
sufficient evidence of injury causation in that or any amount. [Pointing to
another part of Dastar’s practical
wisdom: it’s rare that false designation of origin of ideas makes a difference.
The court was sensitized to the Dastar
problem in that its analysis focuses on unauthorized use of ZeniMax’s marks,
but the trial theory, and thus the jury’s award, seems to have focused on
claiming credit for the technology. The mismatch between the allowable scope of
§1125 and the theory is likely part of what accounts for the lack of evidence
of damages.]
Under Lexmark,
damages must be proximately caused by the act of the false designation: “[A]
plaintiff suing under § 1125(a) ordinarily must show economic or reputational
injury flowing directly from the deception wrought by the defendant’s
[actions]. . . .”
Plaintiffs’ damages expert testified only as to damages
resulting from stolen trade secrets, not to reputational injury, or any defendant
gains from false designation. For reputational damages, ZeniMax cited the
testimony of Todd Hollenshead, former President of plaintiff id Software, that
he was “concerned” about “the use of preleased software in any public
demonstration that id Software was not controlling.” Without specifically
noting that the existence of a risk isn’t evidence that the risk to reputation
materialized, the court concluded that this wasn’t evidence of damage to
reputation based on false designation. ZeniMax also pointed to three other
items that supposedly showed reputational injury: (1) false representations
Oculus made in the press about“collaborat[ion]” when “there was no actual
affiliation between ZeniMax and Oculus”; (2) Oculus leading Mark Zuckerberg to
believe that Oculus, not ZeniMax, “was miles ahead of everyone else” as to
virtual reality technology; and (3) Zuckerberg’s testimony that ZeniMax “came
out of the woodwork” when the Facebook purchase was announced. These were “even
further from being evidence of reputational injury” than Hollenshead’s
ZeniMax pointed to excerpts from the damages expert’s
testimony where he calculated a reasonable royalty for ZeniMax’s technology. But
none of this testimony referenced false designation, let alone how the damages
calculation he computed for trade secret violations also related to false
designation and any resulting injury to ZeniMax. Defendant Carmack also wrote an
email saying that “Oculus wouldn’t exist as a funded company if it weren’t for
[Plaintiffs’] involvement.” That didn’t provide evidence that defendants “were
massively and unjustly enriched” in relation to the false designation.
ZeniMax argued that defendants were unjustly enriched by
their act of false designation when Facebook bought Oculus for approximately $2
billion. [Unjust enrichment of this type isn’t damages—it’s a disgorgement
theory.]  Standing alone, the purchase
price was legally insufficient evidence to prove damages from false
designation. Facebook didn’t buy Oculus until 2014, almost two years after Oculus
used promotional items containing ZeniMax’s marks without authorization in a Kickstarter
video and investor materials. There was no causal evidence linking the two.
Even if there had been evidence of damages, plaintiffs
failed to show proximate cause between those damages and the unauthorized use
of their marks. Plaintiffs argued that the jury is vested with “broad latitude
to infer proximate cause.” However, there was no evidence that Facebook believed the parties were
somehow associated and that this led to the purchase. [Materiality as a proximate
cause requirement….] Also, “[t]he time and intervening facts between these
events alone makes the approximately $2 billion purchase price too remote to
have been the proximate result of Defendants’ acts of false designation.” During
those two years, millions of dollars were invested into Oculus by multiple
investors, and others invested substantial time and effort, taking the Oculus
Rift from a prototype device into a functioning device with market potential. That was the product that attracted
Facebook to acquire Oculus. “There was simply no evidence presented that the
purchase price Facebook paid for Oculus proves any of the harms against which
Section 1225 protects.”
The only other evidence arguably proving proximate cause of
harm flowing from the false designation was the money Oculus raised from
investors in direct connection with the use of the promotional materials
containing ZeniMax’s marks. However, there was no evidence about how much money
was actually generated from these specific efforts using ZeniMax’s marks
without permission. Also, the display of ZeniMax’s marks and the endorsement by
Carmack, who was employed by ZeniMax at that time, was “merely a minor portion
of the entire video.” By contrast, the video spent a substantial amount of time
discussing the invention and technological improvements of the Oculus Rift
without making any reference to ZeniMax or displaying of any of ZeniMax’s
marks. The video also contained references to and endorsements from other
companies and people in the industry unconnected to ZeniMax, such as USC’s MxR
Lab, Epic Games, Unity, and Valve. The unauthorized use of ZeniMax’s marks was
“diluted” by these endorsements of others as well as the support of ZeniMax’s
Here’s the Dastar
hook: “The invention and technology of the Oculus Rift was a major issue in
dispute in this matter” but those issues “play no role in a proximate cause
analysis as to the false designation claims because the Lanham Act is intended
to protect from harm related to the improper use of a mark and not intended to
protect inventor’s rights.” The invention issues “add nothing to further a
finding of proximate cause of a harm related to the money raised by this
Kickstarter video.”

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the perils of default judgments against speech: showing up late can prove onerous

Lokosky v. Gass, No. 1 CA-SA 18-0101, 2018 WL 3150499 (Az.
Ct. App. Jun. 28, 2018)
Respondents (not Gass, who’s the judge, named for procedural
reasons) sued Lokosky for false advertising and related claims seeking to compel Lokosky to “remove from the
internet all material pertaining to Respondents and their business,” and
obtained a default judgment. Next, they compelled the transfer of ownership of Lokosky’s
website to themselves. Lokosky then applied for a restraining order seeking to
have ownership of her website returned to her and moved to vacate or set aside
the judgment. The superior court granted the TRO and ordered Lokosky to “remove
any and all material and/or references pertaining to each Plaintiff” on her
website and “refrain from publishing or republishing on the Internet any and
all materials and/or references pertaining to each Plaintiff.” Well, that’s
incredibly overbroad. Then:
In March 2017, the superior court
held the first day of an evidentiary hearing on Lokosky’s motion to vacate
judgment. During the month in between hearing days the superior court placed
both parties under an order forbidding the parties from engaging in speech regarding
each other, counsel, and the instant lawsuit. … In April 2017, the superior court held the second day
of the evidentiary hearing and vacated the default judgment against Lokosky. 
Lokosky filed a motion to dissolve the TRO because there was
no longer a default judgment to justify the restraint on her speech. In a
sequence of events that would have fit well in Jarndyce v. Jarndyce, the superior court declined to act, waiting
on the result of respondents’ pending appeal of the vacation of the default
judgment. So Lokosky filed a separate notice of appeal about the superior
court’s decision not to decide the motion to set aside the TRO; the court of
appeals determined that it lacked jurisdiction. Lokosky then requested that the
court of appeals dissolve the TRO by way of a filing in respondents’ appeal. The court of appeals denied the motion because the request was
more appropriately raised as a special action. Lokosky then filed a special
action petition, and finally her claim was heard on the merits. [Eugene Volokh
could use this as a cautionary tale about granting speech restraints in default
judgments. They can be very hard to reverse, as it turns out!]
The TRO was a prior restraint on speech and violated the
First Amendment. Before any TRO against future speech can issue, the court has
to determine that the future speech is unprotected by the First Amendment. “Although
the superior court indicated its intent to prevent the parties from engaging in
speech which might later increase their own liability in this litigation, the
record is devoid of any support for the notion that Lokosky’s speech is not
protected.” Respondents argued that they competed with Lokosky and that
her speech was commercial (allowing prior restraint). Even assuming that, her
speech hadn’t been determined to be misleading and thus couldn’t be restrained,
even temporarily.

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search results labeled as results aren’t confusing

Carter v. Oath Holdings, Inc., No. 17-cv-07086-BLF (N.D.
Cal. Jun. 21, 2018)
Carter allegedly owns a trademark registration for “The
House of Figurine Sculptures.com.” Defendant is Yahoo!, which runs a search
engine.  The complaint alleged that
Yahoo! uses “two active counterfeit marks identical to Plaintiff[’s] genuine
mark” titled “The House of Figurine Sculptures – Image Result” and “More The
House of Figurine Sculptures Images”:
Carter alleged that he has no connection to “those goods and
services sold” and that Yahoo!’s “counterfeit marks misrepresent [the]
designation of origin” of the goods and services. The court dismissed the
trademark infringement, false designation of origin, and counterfeiting claims.
First, the complaint failed to sufficiently plead “use” of the mark. “Courts
have held that an online provider does not ‘use’ a mark under the meaning of
the Lanham Act when its search engine returns a search result based on an input
of a consumer. As such, merely returning search results to purportedly display
a trademark does not show that Defendant is liable under the Lanham Act.”
Second, the complaint failed to sufficiently allege a
likelihood of confusion. Mere allegations that Yahoo!’s “counterfeit marks
misrepresent [the] designation of origin” and that their “counterfeit marks
[are] deceptive, confusing, and is likely to cause mistake on the part of [the]
consuming public” were conclusory and insufficient. [Note that if more plausible
facts were alleged leading up to this (e.g., that defendant was selling
identical goods/services in direct competition with plaintiff, using the same
mark), the very same allegations would not be treated as conclusory but as
plausible inferences from the other alleged facts.]

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Dr. Pepper gets an upset tummy: Court approves conjoint analysis/price premium model in ginger ale class action

Fitzhenry-Russell v. Dr. Pepper Snapple Group, Inc., 2018 WL
3126385, No. 17-cv-00564 (N.D. Cal. Jun. 26, 2018) (magistrate judge)
Canada Dry Ginger Ale allegedly deceived consumers with the
phrase “Made From Real Ginger” when, in fact, Canada Dry does not contain the
type of, or amount of, ginger consumers would expect (ginger root). Instead,
Canada Dry contains a ginger derivative, ginger oleoresin. Plaintiffs alleged
that Dr. Pepper was wrongfully able to charge a 4% price premium on Canada Dry
as a result. The court certified a class and rejected challenges to plaintiffs’
expert declarations in support of class certification on the usual California
Plaintiffs’ survey expert, Dr. Dennis, looked at consumer
understanding of “Made from Real Ginger” and materiality/price premiums. Respondents
were asked “what is your understanding of the statement ‘Made From Real Ginger’
on the Canada Dry Ginger Ale?” and provided options:
[1.] Ginger oil, which is extracted
from the ginger root using steam
[2.] Ginger root, which is part of
the ginger plant, not an extract
[3.] Ginger oleoresin, which is
extracted from the ginger root using a solvent
[4.] None of these
78.5% of California Canada Dry consumers answered that the
product was made from ginger root, while 4.8% of consumers picked ginger
oleoresin and 8.6% picked ginger oil. (The truth is oleoresin.)
Before answering the materiality question, respondents were
presented with the definitions of “ginger root” and “ginger oleoresin.” Ginger
oleoresin was defined almost as above, but with the additional information that
a solvent, such as ethanol, could be used to extract the ginger. In the survey,
92.4% of respondents preferred to purchase a version made with ginger root over
one made with oleoresin.
For the price premium survey, Dennis used a choice-based
conjoint survey, which asked respondents to express preferences by choosing
from a set of product profiles (i.e., choosing a product from a group of
products). The price premium survey was restricted to respondents who recently
purchased ginger ale, and presented respondents with mixes of six
attributes.  The results were fed into
Bayesian models that allegedly allowed Dennis to calculate a price premium from
“Made with Real Ginger” for the marginal consumer; he found a 4% price premium.
Plaintiffs’ expert Weir opined on whether it would be
possible to determine damages on a class-wide basis using common evidence, and provided
a framework for/estimate of damages to the California class. Weir multiplied
the total California sales of Canada Dry in the class period by 4% to calculate
damages, resulting in a figure of $10,778,477.
Dr. Pepper didn’t challenge the experts’ qualifications or
the reliability of their methods. 
Instead, it focused on the argument that Dennis didn’t properly apply
the methodologies behind his consumer understanding survey and price premium
As to the consumer perception survey, “survey evidence
should be admitted as long as it is conducted according to accepted principles
and is relevant.” “[T]echnical inadequacies in a survey, including the format
of the questions or the manner in which it was taken, bear on the weight of the
evidence, not its admissibility.”  Dr.
Pepper pointed to its rebuttal expert’s “vastly different results” in his
replication survey of consumers. That expert recreated Dennis’s consumer
understanding survey, but changed the descriptors of ginger oil, ginger
oleoresin, and ginger root. But even where “simple language” was used to
describe ginger oil, ginger oleoresin, and ginger root, 40.59% of respondents
still believed “Made From Real Ginger” meant that Canada Dry was made using
“ginger root” as its ginger ingredient. “This is still a legally significant
percentage of people who would be misled.” 
The rebuttal expert also did a replication survey using “technical”
descriptors of ginger oil, ginger oleoresin, and ginger root, but this
different language proved the point that Dennis’s survey needed to go to a
fact-finder, who could determine if plaintiffs’ survey was unduly biased. “This
is because the replication survey using technical language seems to be designed
to confuse respondents, and encourage them to answer that they ‘don’t know’ or
are ‘unsure’ of what the ginger ingredient behind the ‘Made From Real Ginger’
claim is. After all, which layperson has ever heard of the ginger root powder
they purchase in stores being referred to as ‘triturated ginger’ [defined in
the survey as ‘a coarse powder obtained from the ginger root using a bleaching
process’]?”  [I agree that the “not an
extract” language in the original survey has some biasing potential; I also
wonder about the “not sure/don’t know” option—but at the same time “triturated
ginger” isn’t how I would think about ginger root powder either.]
The court found Dr. Pepper’s criticisms of the price premium
survey and simulator to be more substantive. 
Dr. Pepper argued that despite Dennis’s representation in his
declaration that his survey only contained six features or attributes— brand,
type, flavor, nutrition facts, description on front of the package, and
price—he instead used 11 factors, because the description on the front of the
Canada Dry packaging wasn’t one attribute but six: (1) “100% Natural Flavors,”
(2) “The Original Ginger Soda,” (3) “Barrel-Aged,” (4) “Made with/from Real
Ginger,” (5) “Caffeine Free,” and (6) “Since 1904/1873.” The more attributes in
a conjoint survey, “the higher risk that it simply becomes too complex for
respondents.” Also, it may be that the reason a person considered the descriptors
on the product packaging was because he or she thought the “100% Natural
Flavors” claim was important, rather than the “Made From Real Ginger” claim.  
Dennis’s reply declaration didn’t assuage the court’s
concerns: He argued that grouping the different product descriptions under one
attribute “likely led to a dilution of the respondents’ attention (in contrast
to showing only one product description for each product option), and therefore
reducing possible risk from focalism bias.” If he hadn’t included the four
product descriptions on the Canada Dry can on the price premium survey, the
survey would have been criticized on that basis. The court understood that, but
wasn’t convinced. Still, even if the survey overestimated the value consumers
placed on “Made From Real Ginger,” it wasn’t excludable excludable. Dr. Pepper could
attack it at trial.
Dr. Pepper argued that one of its other ginger ale products,
Schweppes, didn’t have the ginger claim, and it sold in stores at either the
same price or for less. Plaintiffs responded that legal authorities agree that using
a side-by-side comparison is “bunk.” The court agreed that as a matter of
common sense, such comparisons don’t account for any of the range of other
possible reasons for these products to be priced so similarly. Even the possibility
that another survey might have used side-by-side comparisons didn’t make this
survey excludable.
Most substantively, Dennis considered willingness to pay in
the conjoint survey, not a price premium; thus, Dr. Pepper argued, it couldn’t
calculate restitution, which is the difference between what consumers paid and
the true market price, which also takes into account supply-side factors.
However, the study used past market prices, which reflect supply factors. The
study can get insight into price premium by looking at the marginal consumer: the
one who is indifferent between buying and not buying the infringing product. That
consumer’s WTP is “equivalent to the price premium associated with the
infringing level of the attribute; this marginal consumer can be identified by
offering respondents a ‘no buy’ option.” 
The model asks “At what price in that actual market in which [defendant]
sold the offending products could [defendant] have sold the equivalent number
of products without the false claim(s)?” The marginal consumer’s WTP discloses
that price, tethered to the real market because the conjoint survey used actual
market-clearing prices as the basis for the prices in its survey and actual
competitor products.  Thus, the price
premium study satisfied Daubert.
After that, the class certification discussion was lengthy,
but largely foreordained.
Dr. Pepper argued that “Made From Real Ginger” couldn’t be
material to consumer decisions because there was no common understanding of the
term, as courts have ruled for “All Natural” and “100% Natural.” The court
found the challenged phrase to be far less vague; almost 80% of people thought
“Made From Real Ginger” meant that Canada Dry was made using ginger root. Plus,
Dr. Pepper’s internal documents showed that Dr. Pepper thought the “Made From
Real Ginger” claim was material. E.g., Dr. Pepper sought to capitalize on the
alleged health halo ginger products have to consumers by encouraging people to
believe that “Canada Dry Ginger Ale is a [carbonated soda drink] that fits into
your healthy lifestyle because it is made from real ginger.” When respondents were
asked their reasons for drinking Canada Dry five years later, the top five
reasons were: (1) “I trust and respect the Canada Dry Brand (28%)”, (2)
“Drinking Canada Dry makes me feel better by soothing my stomach (26%)”, (3)
“Canada Dry is easy to find in stores (26%)”, (4) “Canada Dry tastes good with
food (25%)”, and (5) “Canada Dry is made with real ginger (25%),” even though
previously lots of people hadn’t believed that ginger ale had real ginger.
Thus, “through its marketing, it orchestrated a change in consumer perceptions.”
Another document claimed that the “Made From Real Ginger” program “is working: –
New news – Strong POD and message relevant to target consumer – Consumer
awareness and brand equity increased – Purchase frequency and volume growth
escalated to +8.5%.” “Clearly, if a quarter of Canada Dry consumers were
listing the ginger claim as a top five reason why they bought the product, the
claim is material. Dr. Pepper cannot walk back evidence contained in its own
The most interesting argument Dr. Pepper presented against
the price premium survey under predominance is that “it does not match
[plaintiffs’] theory of liability. The survey purports to calculate a price
premium associated with misleading consumers to believe the drink contains
powdered or chopped ginger, but it does not do so—it calculates the premium
associated with all possible meanings of the claim.” Canada Dry does contain
traces of real ginger, in the form of ginger oleoresin. But the complaint still
properly alleged that these traces weren’t “real ginger” as a reasonable
consumer would understand it and that the flavorings contained none of the
health benefits of real ginger. 
Plaintiff’s rebuttal expert reported that the concentration in parts per
million of 6-gingerol and 6-shaogal, which are ginger-derived compounds, in
Canada Dry was far below what a person would be able to detect when drinking
the ginger ale. Even if it is literally true that Canada Dry has ginger in it,
the ginger is not what a reasonable consumer would expect.
The worth of the “Made From Real Ginger” claim would only
matter in the future if a jury does find that the claim is misleading. Thus,
plaintiffs’ damages model fit the theory of the case.

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Direct competition + literally false advertising don’t equal standing without more

Brave Law Firm, LLC v. Truck Accident Lawyers Gp., Inc., No.
17-1156-EFM-GEB, 2018 WL 3122172 (D. Kan. Jun. 26, 2018)
Brave sued its personal injury law firm rivals (TALG) under
the Lanham Act and Kansas state law based on allegations of false and deceptive
advertising. The court ruled that Brave hadn’t sufficiently alleged
injury—furthering my suspicion that Lexmark
reasoning has made it easier to proceed against disparagement and harder to
proceed against false claims a defendant makes about itself, even though the
latter was the core of what the Lanham Act false advertising provisions tried
to cover.
Brave and TALG offer competing legal services in the same
geographic area. An example of the allegedly false advertising is an ad depicting
a woman holding a check with the words “$2.4 MILLION” displayed in bold text,
with a disclaimer stating, in part: “Amounts are gross recovery before fees and
expenses.” Brave alleged that this ad was false because the actual “gross
recovery” before fees and expenses was $387,018, or 16% of what was advertised.
The court found that Article III wasn’t satisfied. The
allegations of injury were conclusory, alleging mostly that the false
advertising was intentional. The court declined to apply a presumption of
injury to standing even if the advertising was literally false.  Brave failed to allege that it lost potential
clients to TALG, that it lost revenue from the false ads, or that TALG
strengthened its market position through the ads. The motion to dismiss on
standing was granted with leave to amend.
Because of the leave to amend, the court addressed zone of
interests/proximate causation under Lexmark
as well. As with standing, Brave failed to sufficiently allege injury to a
commercial interest in reputation or sales (zone of interests). Brave argued
that it was seeking injunctive relief, so it didn’t have to show injury. But
that’s not right. However, if Brave successfully amended to assert an injury to
a commercial interest in reputation or sales, the proximate cause test would
most likely be met, given that Brave’s scenario would fit into the “classic
Lanham Act false-advertising claim.”
Finally, Brave’s pleadings didn’t satisfy FRCP 9(b) in
identifying the when, where, and how: though it provided a screenshot of an alleged
ad, it didn’t allege when or how the ad was disseminated, or when/how (in terms
of medium) other ads were or who ran those or what those other ads specifically

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