Monthly Archives: May 2014

a twist on substantiation claims in consumer protection cases

In re Bayer Heathcare and Merial Ltd. Flea Control Prods., — F.3d —-, 2014 WL 2209024 (6thCir. May 29, 2014) In this multidistrict litigation, the district court dismissed the claims after limited discovery, and the court of appeals affirmed.  Defendants … Continue reading

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Regression analysis is a plaintiff’s best friend

Werdebaugh v. Blue Diamond Growers, 2014 WL 2191901,  No. 12–CV–2724 (N.D. Cal. May 23, 2014) I’m going to try, with probably limited success, to summarize results rather than reasoning for most of this consumer class action case in which certification … Continue reading

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publicizing a falsely obtained injunction can be false advertising

Peek v. Whittaker, 2014 WL 2154965, No. 2:13–cv–O1188 (W.D. Pa. May 22, 2014) The court sets the stage: “This case is the latest skirmish in the on-going battle between two carpet-cleaning rivals, and is the federal court spill-over of their … Continue reading

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Green (yellow) marketing: nonprofit’s claims against Chiquita survive

Water & Sanitation Health, Inc. v. Chiquita Brands Int’l, Inc., No. C14–10, 2014 WL 2154381 (W.D. Wash. May 22, 2014) Chiquita buys millions of pounds of bananas per year, including from a company named COBIGUA in Guatemala.  Chiquita made a … Continue reading

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Ninth Circuit revives consumer claims against Sony

In re Sony PS3 “Other OS” Litig., 551 Fed.Appx. 916, No. 11–18066 (9th Cir. Jan. 6, 2014) (belated; just showed up in Westclip) The court of appeals partially reversed the dismissal of plaintiffs’ claims against Sony for disabling the ability … Continue reading

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"generic" claims may be governed by FDA standard regardless of regulatory status

Mission Pharmacal Co. v. Virtus Pharmaceuticals, LLC, 2014 WL 2119237, No. 5:13–CA–176 (W.D. Tex. Apr. 28, 2014) (magistrate judge, report & recommendation adopted) This started as a patent infringement suit and added false advertising; the opinion here denies summary judgment … Continue reading

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all confusion is actionable but some doesn’t count

Yes, I know that’s contradictory, but it’s a result of expansive doctrine which courts then seek to cabin by finding reasons to disregard certain evidence–such as evidence here that people in a sophisticated business still made errors about which entitty … Continue reading

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Apple loses 230 defense to app privacy claims but still wins dismissal

Opperman v. Path, Inc., 2014 WL 1973378,  No. 13-cv-00453 (N.D. Cal. May 14, 2014) This big class action against Apple and fourteen app developers has a lot of issues; I’ll try to focus on the consumer protection parts.  Plaintiffs alleged … Continue reading

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Reading list: TM/false advertising surveys

Trademark and Deceptive Advertising Surveys: Law, Science, and Design (ed. Shari Seidman Diamond & Jerre B. Swann, 2012): A collection of essays surveying various aspects of the law and offering the authors’ opinions on those aspects.  Of particular note: Itmar … Continue reading

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Orphan works and myths of fair use

Opponents of fair use have settled on a few simple arguments–fair use is too unpredictable, it’s too big (slight tension there), and it’s too American. Brandon Butler, Michael Carroll, and Peter Jaszi have taken the opportunity to rebut them in … Continue reading

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