Author Archives: rtushnet

Flange wars: material misrepresentations aren’t enough without causation

Posted on July 3, 2019 by rtushnet

Boltex Manufacturing Co. v. Ulma Piping USA Corp., No. 17-CV-1400, 2019 WL 2723253 (S.D. Tex. Jun. 28, 2019) More flanges! Boltex alleged that defendants misrepresented that they “normalized” their flanges. Normalization is a heat treatment process that makes steel more … Continue reading →

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Keurig unsuccessfully argues that false advertising law unconstitutionally compels speech

Posted on July 3, 2019 by rtushnet

Smith v. Keurig Green Mountain, Inc., No. 18-cv-06690-HSG, 2019 WL 2716552 (N.D. Cal. Jun. 28, 2019) Smith brought a putative class action against Keurig, alleging that its “recyclable” single-serve plastic coffee pods were mislabeled as such because they are not … Continue reading →

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good faith defense to false advertising may waive attorney/client privilege

Posted on July 3, 2019 by rtushnet

In re Keurig Green Mountain Single Serve Coffee Antitrust Litig., 2019 WL 2724269, No. 14 MD 2542 (VSB)(HBP) (S.D.N.Y. Jul. 1, 2019) In this antitrust claim, Keurig counterclaimed against plaintiff JBR for marketing its competing pods with allegedly false representations … Continue reading →

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dueling fake “independent” websites leads to unclean hands finding, but some injunctive relief

Posted on July 3, 2019 by rtushnet

Grasshopper House, LLC v. Clean & Sober Media LLC, 2019 WL 2762936, No. 18-cv-00923-SVW-RAO (C.D. Cal. Jul. 1, 2019) Previous discussion. A jury found in plaintiff Passages’ favor on its claims under the Lanham Act about false reviews of its … Continue reading →

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Third Circuit requires showing irreparable harm in (c) case, rejects “compelled speech” argument

Posted on July 2, 2019 by rtushnet

TD Bank N.A. v. Hill, No. 16-2897 (3d Cir. Jul. 1, 2019) Commerce Bank, which merged with TD Bank, has been in a “bitter feud” with its former CEO, Vernon Hill II. TD Bank sued Hill, alleging that a portion … Continue reading →

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When is a photoshopped picture not false? when it’s basically accurate

Posted on July 2, 2019 by rtushnet

Louisiana-Pacific Co. v. James Hardie Building Products, Inc., No. 18-5913, — F.3d –, 2019 WL 2710225 (6th Cir. Jun. 28, 2019) Because termites, woodpeckers, and other pests may be able to damage engineered-wood building siding such as that which LP … Continue reading →

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Court formulates survey question in consumer protection case

Posted on June 27, 2019 by rtushnet

Moorer v. Stemgenex Medical Group, Inc., No. 16-cv-2816-AJB-NLS, 2019 WL 2602536 (S.D. Cal. Jun. 25, 2019) This “complex and troubling case” involves allegedly false advertising of stem cell treatments; the court found it “narrowly” certifiable and—unusually—specified the consumer survey questions … Continue reading →

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law firm raises significant 1A questions over nursing home-specific advertising law

Posted on June 27, 2019 by rtushnet

Wilkes & McHugh, P.A. v. LTC Consulting, L.P., — S.E.2d —-, 2019 WL 2570982 (Ga. Jun. 24, 2019) Georgia revised its anti-SLAPP law to be more like California’s (though apparently without the exception for commercial advertising) and the state supreme … Continue reading →

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failure to show causation dooms duelling flange false advertising claims

Posted on June 26, 2019 by rtushnet

Boltex Mf’g Co. v. Galperti, Inc., 2019 WL 2568338, No. H-17-1439 (S.D. Tex. Jun. 21, 2019) This is a false advertising and unfair competition case about normalization, “a costly heat treatment process that changes the physical composition of carbon steel … Continue reading →

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The probiotic worm turns: previous PI loser wins $15 million in Lanham Act case

Posted on June 26, 2019 by rtushnet

De Simone v. VSL Pharmaceuticals, Inc., No. TDC-15-1356, 2019 WL 2569574 (D. Md. Jun. 20, 2019) Previous discussions.  The parties compete in offering a probiotic product; De Simone used to license his formulation to VSL, then went out on his … Continue reading →

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