Monthly Archives: May 2023

Are surcharge disclosures fair?

Posted on May 31, 2023 by rtushnet

 Seen on a recent menu. They reprinted it to include this information; they could have reprinted with the actual higher prices, and if they ever intend to drop the surcharge they’ll have to reprint again, so the only motivation seems … Continue reading →

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Mexican flag and “taste of Mexico” not enough to deceive reasonable consumers about non-Mexican origin, 2d Cir rules

Posted on May 23, 2023 by rtushnet

Hardy v. Olé Mexican Foods, Inc., 2023 WL 3577867, No. 22-1805 (2d Cir. May 22, 2023) (per curiam) There was a CD Cal case raising the same “false Mexican origin” claims with a different result. Hardy alleged that defendant’s La … Continue reading →

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court: there’s no right to jury trial when seeking only injunction/disgorgement in false advertising case

Posted on May 22, 2023 by rtushnet

Bluegreen Vacations Unlimited, Inc. v. Timeshare Lawyers P.A., 2023 WL 3510374, No. 20-24681-Civ-Scola (S.D. Fla. May 17, 2023) The court grants these timeshare plaintiffs’ motion for a bench trial, ruling that the Seventh Amendment doesn’t guarantee a jury trial in … Continue reading →

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alleged price bait-and-switch with large “processing fee” suffices to plead Lanham Act false advertising

Posted on May 22, 2023 by rtushnet

New Vision Unlimited, LLC v. Glasses USA, Inc., 2023 WL 3535386, No. 22-22534-Civ-Scola (S.D. Fla. May 18, 2023) New Vision, an eye-care professional and provider of optical goods and services, including contact lens fittings and contact lens sales with seven … Continue reading →

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Great balls of fire: lawsuit over malt sold looking nearly identical to whisky can continue

Posted on May 22, 2023 by rtushnet

McKay v. Sazerac Co., 23-cv-00522-EMC (N.D. Cal. May 17, 2023) The court rejected Sazerac’s motion to dismiss McKay’s usual California statutory and common law claims on behalf of a putative class based on Sazerac’s labeling and marketing of mini bottles … Continue reading →

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Second Circuit signals some minimal flexibility on Polaroid analysis in another strip club false endorsement case

Posted on May 22, 2023 by rtushnet

Souza v. Exotic Island Enters., Inc., 2023 WL 3556053, No. 21-2149-cv, — F.4th —- (2d Cir. May 19, 2023) Whereas the timeshare false advertising cases might be making law largely applicable to other timeshare cases, what’s going on in the … Continue reading →

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court allows some claims based on allegedly misleading statistical claims for pregnancy test: Bayes’ Theorem in the courts

Posted on May 19, 2023 by rtushnet

In re Natera Prenatal Testing Litig., No. 22-cv-00985-JST, 2023 WL 3370737, — F. Supp. 3d – (N.D. Cal. Mar. 28, 2023) Natera sells Panorama, a noninvasive prenatal testing (“NIPT”) product which screens for an array of fetal chromosomal and genetic … Continue reading →

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courts continue to jack up materiality requirements; the Lanham Act and the death of common sense?

Posted on May 19, 2023 by rtushnet

Delta T LLC v. MacroAir Technologies, Inc., No. EDCV 20-1489-GW-JPRx, 2022 WL 19827572 (C.D. Cal. Nov. 18, 2022) MacroAir asserted – among other things – a counterclaim for false advertising under the Lanham Act. Of potential note: Plaintiff aka BAF … Continue reading →

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copying/explicit references let Roblox proceed with dubious (c) claim; Lego should be watching

Posted on May 19, 2023 by rtushnet

Roblox Corp. v. Wowwee Gp. Ltd., 2023 WL 2433970, — F. Supp. 3d –, No. 22-cv-04476-SI (N.D. Cal. Mar. 9, 2023) Roblox runs a “digital world where users create virtual games and experiences and connect with other users.” Users interact … Continue reading →

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court doesn’t find consumer protection claim over “sweet cream” plausible without survey; dictionaries insufficient

Posted on May 19, 2023 by rtushnet

Sneed v. Ferrero U.S.A., Inc., — F.Supp.3d —-, No. 22 CV 1183, 2023 WL 2019049 (N.D. Ill. Feb. 15, 2023) Courts in consumer protection cases reject surveys with abandon when they don’t agree with the results, but may also demand … Continue reading →

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