Monthly Archives: August 2021

Diamond hands: timeshare entity’s alleged misconduct towards consumers didn’t allow exit company to assert unclean hands

Posted on August 27, 2021 by rtushnet

Diamond Resorts U.S. Collection Development, LLC v. Wesley Financial Group, LLC, No. 3:20-CV-251-DCLC-DCP, 2021 WL 3277260 (E.D. Tenn. Jul. 14, 2021) (R&R) In this timeshare v. timeshare exit company case, the judge recommended tossing the exit company’s unclean hands defense.  … Continue reading →

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false association wasn’t plausible given clear comparative statements

Posted on August 27, 2021 by rtushnet

Dynatemp Int’l, Inc. v. R421A, LLC, No. 5:20-CV-142-FL, 2021 WL 3284799 (E.D.N.C. Jul. 30, 2021) Dynatemp and another company sued defendants for false advertising and related claims; defendant RMS counterclaimed similarly. Notable holdings: RMS didn’t plausibly allege that plaintiffs falsely … Continue reading →

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statements about legality of service were factual/falsifiable

Posted on August 26, 2021 by rtushnet

Allied Servs., LLC v. Smash My Trash, LLC,  2021 WL 3354839, No. 21-cv-00249-SRB (W.D. Mo. Aug. 2, 2021) Allied, aka Republic, “provides waste and recycling services to business and residential customers in the Kansas City metropolitan area.” It supplies dumpsters … Continue reading →

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affiliation claim true when sent out to consumers can’t be false endorsement

Posted on August 26, 2021 by rtushnet

Klayman v. Judicial Watch, Inc., — F.4th —-, 2021 WL 3233953, No. 19-7105 (D.C. Cir. 2021) Larry Klayman founded and ran the conservative activist group Judicial Watch, but the relationship ended badly in 2003. “During the fifteen years of ensuing … Continue reading →

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Cal. statutory false advertising isn’t fraud and individual reliance isn’t necessary

Posted on August 26, 2021 by rtushnet

Peviani v. Arbors at California Oaks Property Owner, LLC, 2021 WL 1264423, E073950, — Cal.Rptr.3d —- (Ct. App. 2021) Plaintiffs sought to represent a putative class, bringing claims against a landlord for (1) false advertising; (2) breach of the implied … Continue reading →

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false designation claim doesn’t require distinctiveness, court wrongly holds

Posted on August 26, 2021 by rtushnet

Simpson Strong-Tie Company Inc. v. MiTek Inc., 2021 WL 1253803, No. 20-cv-06957-VKD (N.D. Cal. Apr. 5, 2021) The plaintiff benefits from very generous treatment of its false designation and copyright claims, in the process stripping false designation of anything other … Continue reading →

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pharma database isn’t commercial speech about listed products

Posted on August 25, 2021 by rtushnet

Alfasigma USA, Inc. v. First Databank, Inc., 2021 WL 930453, No. 18-cv-06924-HSG (N.D. Cal. Mar. 11, 2021) Previous opinion. Alfasigma makes medical foods, which are allegedly not properly described as OTC. It sued First Databank for coding implemented in the … Continue reading →

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“implied gov’t approval” claims don’t work

Posted on August 25, 2021 by rtushnet

ImPACT Applications, Inc. v. Concussion Management, LLC, 2021 WL 978823, No. GJH-19-3108 (D. Md. Mar. 16, 2021) ImPACT provides training and software, including a proprietary evaluation system. Immediate Post-concussion Assessment and Cognitive Testing “provides a neurocognitive test battery that offers … Continue reading →

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“non-toxic” plausibly means “not harmful to people, animals, or environment”

Posted on August 25, 2021 by rtushnet

In re S.C. Johnson & Son, Inc. Windex Non-Toxic Litig., 2021 WL 3191733, No. 20-cv-03184-HSG (N.D. Cal. Jul. 28, 2021) Plaintiffs alleged that SCJ used false and misleading labels that certain of its Windex products have a “non-toxic formula.” The … Continue reading →

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slack fill can be misleading despite numbers on box

Posted on August 25, 2021 by rtushnet

Maisel v. Tootsie Roll Indus., LLC, 2021 WL 3185443, No. 20-cv-05204-SK (N.D. Cal. Jul. 27, 2021) Courts have divided on the reasonability of being deceived by alleged slack-fill violations when box contents/weight are clearly marked. This court sided with the … Continue reading →

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