Author Archives: rtushnet

meaningless numbers aren’t advertising

Posted on June 5, 2014 by rtushnet

MGM Resorts Intern. v. Pacific Pillows, LLC, 2014 WL 2434628, No. 2:13–CV–1404 (D. Nev. May 28, 2014) Pacific Pillows lets consumers buy bedding products that are used in various hotels including several hotels owned by MGM. Its website allows people … Continue reading →

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(pot)head of liability: Hershey’s sues marijuana candy producer

Posted on June 5, 2014 by rtushnet

Here’s the story.  I’ve been waiting for this for years, ever since a NYT story that included similar illustrations.  As with e-cigarettes, an unregulated field full of small players tends to have a lot of playing fast and loose with … Continue reading →

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unregistrable means unprotectable by sec. 43 as well

Posted on June 4, 2014 by rtushnet

Renna v. County of Union, N.J., 2014 WL 2435775, No. 2:11–3328 (D.N.J. May 29, 2014) This is a well-written opinion whose legal conclusions are in part obvious but nice to have down in print and in part quite striking: I … Continue reading →

Posted in first amendment, trademark | 2 Comments

a twist on substantiation claims in consumer protection cases

Posted on May 30, 2014 by rtushnet

In re Bayer Heathcare and Merial Ltd. Flea Control Prods., — F.3d —-, 2014 WL 2209024 (6thCir. May 29, 2014) In this multidistrict litigation, the district court dismissed the claims after limited discovery, and the court of appeals affirmed.  Defendants … Continue reading →

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Regression analysis is a plaintiff’s best friend

Posted on May 29, 2014 by rtushnet

Werdebaugh v. Blue Diamond Growers, 2014 WL 2191901,  No. 12–CV–2724 (N.D. Cal. May 23, 2014) I’m going to try, with probably limited success, to summarize results rather than reasoning for most of this consumer class action case in which certification … Continue reading →

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publicizing a falsely obtained injunction can be false advertising

Posted on May 28, 2014 by rtushnet

Peek v. Whittaker, 2014 WL 2154965, No. 2:13–cv–O1188 (W.D. Pa. May 22, 2014) The court sets the stage: “This case is the latest skirmish in the on-going battle between two carpet-cleaning rivals, and is the federal court spill-over of their … Continue reading →

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Green (yellow) marketing: nonprofit’s claims against Chiquita survive

Posted on May 28, 2014 by rtushnet

Water & Sanitation Health, Inc. v. Chiquita Brands Int’l, Inc., No. C14–10, 2014 WL 2154381 (W.D. Wash. May 22, 2014) Chiquita buys millions of pounds of bananas per year, including from a company named COBIGUA in Guatemala.  Chiquita made a … Continue reading →

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Ninth Circuit revives consumer claims against Sony

Posted on May 27, 2014 by rtushnet

In re Sony PS3 “Other OS” Litig., 551 Fed.Appx. 916, No. 11–18066 (9th Cir. Jan. 6, 2014) (belated; just showed up in Westclip) The court of appeals partially reversed the dismissal of plaintiffs’ claims against Sony for disabling the ability … Continue reading →

Posted in california, cfaa, consumer protection, http://schemas.google.com/blogger/2008/kind#post, warranties | Leave a comment

"generic" claims may be governed by FDA standard regardless of regulatory status

Posted on May 27, 2014 by rtushnet

Mission Pharmacal Co. v. Virtus Pharmaceuticals, LLC, 2014 WL 2119237, No. 5:13–CA–176 (W.D. Tex. Apr. 28, 2014) (magistrate judge, report & recommendation adopted) This started as a patent infringement suit and added false advertising; the opinion here denies summary judgment … Continue reading →

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all confusion is actionable but some doesn’t count

Posted on May 27, 2014 by rtushnet

Yes, I know that’s contradictory, but it’s a result of expansive doctrine which courts then seek to cabin by finding reasons to disregard certain evidence–such as evidence here that people in a sophisticated business still made errors about which entitty … Continue reading →

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