Monthly Archives: September 2020

FDA preemption/preclusion after Pom Wonderful: still powerful for drugs

Posted on September 21, 2020 by rtushnet

Exela Pharma Sciences, LLC v. Sandoz, Inc., 2020 WL 5535026, No. 19-cv-00318-MR (W.D.N.C. Sept. 15, 2020) Exela sued Sandoz for unfair and deceptive trade practices in violation of North Carolina law; tortious interference with prospective business advantage; and Lanham Act … Continue reading →

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expert testimony isn’t always required for literal falsity or even misleadingness

Posted on September 16, 2020 by rtushnet

Ecore Int’l, Inc. v. Downey, No. 11-6843, 2020 WL 5501206 (E.D. Pa. Sept. 11, 2020) The court denies Ecore’s motion in limine seeking to exclude any evidence related to the falsity or misleading nature of its advertising for purposes of … Continue reading →

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5th Circuit reiterates stringent standard for injury in Lanham Act false advertising cases

Posted on September 16, 2020 by rtushnet

Boltex Mfg. Co. v. Galperti, Inc., — Fed.Appx. —-, 2020 WL 5506404, No. 19-20440 (5th Cir. Sept. 11, 2020) Boltex and Weldbend sued Galperti and its Italian affiliate for Lanham Act false advertising and state unfair competition. Galperti counterclaimed for … Continue reading →

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consumer disillusionment with D isn’t evidence that deception injured P

Posted on September 16, 2020 by rtushnet

3B Medical, Inc. v. SoClean, Inc., No. 19 Civ. 3545 (KPF), 2020 WL 5440440 (S.D.N.Y. Sept. 8, 2020) 3B makes devices that automatically sanitize continuous positive airway pressure (“CPAP”) machines using UV-C light. It sued SoClean, which makes similar devices … Continue reading →

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a rare freestanding UCL unfairness claim re: service termination that rendered cameras nonfunctional

Posted on September 15, 2020 by rtushnet

Soo v. Lorex Corp., 2020 WL 5408117, No. 20-cv-01437-JSC (N.D Cal. Sept. 9, 2020) Plaintiffs brought California and New York consumer protection claims based on what happened to their home security Flir cameras; defendants moved to compel arbitration, which was … Continue reading →

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Expedia’s unavailability claims sometimes literally false, maybe misleading; materiality is contested for trial

Posted on September 15, 2020 by rtushnet

Buckeye Tree Lodge v. Expedia, Inc., 2020 WL 5372246, No. 16-cv-04721-VC (N.D. Cal. Sept. 9, 2020) The court denies cross motions for summary judgment on whether Expedia violated the Lanham Act by suggesting that plaintiffs’ hotels could in theory be … Continue reading →

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escalated materiality requirement precludes class certification

Posted on September 15, 2020 by rtushnet

Oddo v. Arocaire Air Conditioning & Heating, 2020 WL 5267917, Nos. 15-cv-01985-CAS Ex, 18-cv-07030-CAS(Ex) (C.D. Cal. May 18, 2020) These are consolidated putative class actions alleging that defendants’ HVAC systems have faulty thermal expansion valves (TXVs). A TXV is “a … Continue reading →

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Selling two products together doesn’t plausibly cause confusion as to their source

Posted on September 15, 2020 by rtushnet

General Motors LLC v. KAR Auto Gp., Inc., No. 20-CV-2039-CJW-KEM, 2020 WL 5371717 (N.D. Iowa Sept. 8, 2020) When a court can’t give a doctrinal reason for its decision, that can signal a deep indeterminacy in the doctrine that can … Continue reading →

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insurer must defend Expedia because its false advertising exclusion didn’t cover false claims about hotels

Posted on September 14, 2020 by rtushnet

National Union Fire Ins. Co. v. Expedia, Inc., 2020 WL 5369261, No. C19-0896RSL (W.D. Wash. Sept. 8, 2020) While receiving bad news in the underlying false advertising claims (watch this space), Expedia did manage to keep its insurer involved in … Continue reading →

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closing SeaWorld during pandemic didn’t make “unlimited” entry passes deceptive

Posted on September 14, 2020 by rtushnet

Kouball v. SeaWorld Parks & Entertainment, Inc., 2020 WL 5408918, No.: 20-cv-870-CAB-BGS (S.D. Cal. Sept. 9, 2020) Kouball failed to state a claim under the usual California statutes and common law causes of action by alleging that SeaWorld deceptively failed … Continue reading →

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