Category Archives: preemption

stricter California rule on Made in USA claims not preempted

Paz v. AG Adriano Goldschmeid, Inc., No. 14cv1372, 2014 WL 5561024 (S.D. Cal. Oct. 27, 2014) Paz sued AG, alleging that its “The Protégé” brand jeans were misleadingly marked with a “Made in the U.S.A.” label; he allegedly relied on … Continue reading

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unauthorized photo use doesn’t create false advertising claim for photo owners

Avalos v. IAC/Interactive Corp., No. 13-CV-8351 (S.D.N.Y. Oct. 30, 2014) Meltech, a web design and modeling company, sued defendants for allegedly unauthorized use of photos of models in fake online dating profiles on dating sites (e.g.,,, and  … Continue reading

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Insufficient deviation from FDA label and lack of materiality doom false ad claims

Apotex Inc. v. Acorda Therapeutics, Inc., 2014 WL 5462547, No. 11 Civ. 8803 (S.D.N.Y. Oct. 23, 2014) Zanaflex tablets and capsules (active ingredient tizanidine) are approved by the FDA to treat spasticity.  Somnolence is one of the most common side … Continue reading

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Whole Foods’ not wholly natural foods are ok

Gedalia v. Whole Foods Market Services, Inc., 2014 WL 5315030,  No. 4:13–CV–3517 (S.D. Tex. Sept. 30, 2014) Gedalia sued on behalf of a putative class of people who bought Whole Foods’s private-label 365 Organic and 365 Everyday Value products allegedly … Continue reading

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The highs are too high: overdraft claims against HSBC continue in part

In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig., 1 F.Supp.3d 34 (E.D.N.Y. 2014) This case involves more of the charming practice of low-to-high charge posting, causing consumers to rack up numerous $35 overdraft charges in a single … Continue reading

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NFL Films protected by First Amendment against players’ right of publicity claims

Dryer v. National Football League, No. 09-2182 (D. Minn. Oct. 10, 2014) There are two alternatives when it comes to the right of publicity, it seems to me.  Either we will limp along with a special rule for video games … Continue reading

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Preclusion lives even after Pom Wonderful

JHP Pharmaceuticals, LLC v. Hospira, Inc., 2014 WL 4988016, No. CV 13–07460 (C.D. Cal. Oct. 7, 2014) Pom Wonderful had a lot of broad language in it, and there is a pattern in which lower courts interpret Supreme Court Lanham … Continue reading

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Dastar and design patent

Deckers Outdoor Corp. v. J.C. Penney Co., No. 2:14-cv-02565 (C.D. Cal. Sept. 8, 2014) This is going to sound bigger than it is: the court grants JCP’s motion to dismiss a false designation of origin claim under Dastar because JCP, … Continue reading

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Pom doesn’t change preclusion analysis for medical devices

Catheter Connections, Inc. v. Ivera Medical Corp., 2014 WL 3536573, No. 2:14–CV–70 (D. Utah, July 17, 2014) The parties compete in the medical device market for infection-control devices.  At issue here are disinfectant caps incorporated into intravenous (IV) lines that … Continue reading

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Such a lonely word: "honest" isn’t puffery

Salazar v. Honest Tea, Inc., 2014 WL 2593601, No. 2:13-cv-02318 (E.D. Cal. June 10, 2014) Salazar alleged that HT’s Honey Green Tea bottles didn’t contain the amount of antioxidants represented on their labels, where independent lab testing determined that the … Continue reading

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