Monthly Archives: May 2014

Pom Wonderful and other misleading food claims

Alan Levinovitz has a great article in Slate about scientific claims on food, which he argues are both misleading us and making us dumber.  You should read the whole thing, not least because he (perhaps with tongue in cheek?) calls … Continue reading

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Unsubstantiated "more powerful" claim leads to more powerful recall

Groupe SEB USA, Inc v. Euro-Pro Operating LLC, 2014 WL 2002126, No. 14–137 (W.D. Pa. May 15, 2014) (magistrate judge) Previous opinion.  Here, the court grants a preliminary injunction against certain statements found to be literally false. The parties compete … Continue reading

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Water wars: lack of secondary meaning precludes injunction

Buzz Bee Toys, Inc. v. Swimways Corp., — F.Supp.2d —- (2014), 2014 WL 2006799, No. 14–1948 (D.N.J. May 15, 2014) Here, the court found likely confusion predicated on the near identity between the parties’ product configurations, but denied a preliminary … Continue reading

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Slate on GMO labeling

Slate’s story focuses on the question of the cost of labels.  If it’s just ink, the cost is virtually zero. However, if labeling changes consumer behavior (or retailer behavior), costs may change substantially.  The story, perplexingly, doesn’t discuss the question … Continue reading

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When is help with a free process worth $80?

Charging $80 to fill out a free application for student aid?  Vox has a story about two websites that do so, using official sounding domain names.  Shades of  The story claims that the federal government’s recent registration of a … Continue reading

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Even big businesses need consumer protection law

American Demolition and Nuclear Decommissioning, Inc. v. IBCS Group, Inc., 2014 WL 1906791, No. 3:11CV00078 (W.D. Va. May 13, 2014) ADND (now there’s an acronym!) is a New York corporation that provides demolition, decommissioning, and environmental remediation services. In 2009, … Continue reading

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New article: More than a Feeling: Emotion and the First Amendment

127 Harv. L. Rev. (forthcoming 2014). Abstract: First Amendment law has generally been leery of government attempts to change the marketplace of emotions—except when it has not been. Scientific evidence indicates that emotion and rationality are not opposed, as the … Continue reading

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Fair use twofer: motion to dismiss and summary judgment for critical uses

Caner v. Smathers, No. 4:13-CV-494 (N.D. Tex. Apr. 17, 2014) If hard cases make bad law, it may also be that sometimes jerks make good law.  Here is an addition to the growing number of cases finding fair use on … Continue reading

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With a face like that: Maybelline defeats class certification

Algarin v. Maybelline, LLC, 2014 WL 1883772, No. 12cv3000 (S.D. Cal. May 12, 2014) This case shows the many hurdles now present for consumer class actions.  Once again, perhaps ironically, consumers have no remedy when the harm is probabalistic; only … Continue reading

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Expert testimony about Lanham Act standards is inadmissible

SMD Software, Inc. v. Emove, Inc., 2014 WL 1807809, No. 5:08–CV–403 (E.D.N.C. May 7, 2014) The court denied reconsideration of its ruling excluding references to potentially applicable law by plaintiffs’ expert, Dr. Didow. Opinion testimony stating a legal standard or … Continue reading

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