Category Archives: Uncategorized

Rejected compliance offer to AG leads to fee shift after defense victory

Posted on August 30, 2021 by rtushnet

State ex rel. Rosenblum v. Living Essentials, LLC, 313 Or.App. 176, A163980 — P.3d —-, 2021 WL 2946172 (Jul. 14, 2021) The state alleged that LE falsely advertised its 5-hour Energy drinks, misrepresenting (1) the effects of the noncaffeine ingredients … Continue reading →

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Pom Wonderful applies to pharmaceuticals, but “implied FDA approval” claim still fails

Posted on August 30, 2021 by rtushnet

Belcher Pharms., LLC v. Hospira, Inc., 1 F.4th 1374 (11th Cir. 2021) Belcher alleged that the labels for two of Hospira’s drugs falsely implied that the products and their uses were FDA-approved. The district court rejected that claim on the … Continue reading →

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FTC fails to show lack of substantiation because court reads ASTM standards as nonrestrictive

Posted on August 30, 2021 by rtushnet

Federal Trade Comm’n v. Innovative Designs, Inc., 2021 WL 3086188, — Fed.Appx. —-, No. 20-3379 (3d Cir. Jul. 22, 2021) Another FTC loss, this time for failing to prove that IDI’s claims about its Insultext House Wrap were false or … Continue reading →

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Duelling results in Mexican origin cases

Posted on August 30, 2021 by rtushnet

Rodriguez v. Olé Mexican Foods Inc., 2021 WL 1731604, No. EDCV 20-2324 JGB (SPx) (C.D. Cal. Apr. 22, 2021) Rodriguez alleged that Olé’s La Banderita tortillas falsely advertised Mexican origin based on  a Mexican flag front and center on the … Continue reading →

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Lexmark allows direct and contributory false advertising claims against certifier

Posted on August 27, 2021 by rtushnet

U.S. Structural Plywood Integrity Coalition v. PFS Corp., No. 19-62225-CIV-ALTMAN, 2021 WL 810279 (S.D. Fla. Mar. 3, 2021) Sometimes I worry that judicial writing is tending too much towards the flip as it moves away from prolixity, but this is … Continue reading →

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class action certified with adequate price premium model for “nutritious” claims

Posted on August 27, 2021 by rtushnet

McMorrow v. Mondelēz International, Inc., 2021 WL 859137, No. 17-cv-2327-BAS-JLB (S.D. Cal. Mar. 8, 2021) Consumers in California and New York who purchased belVita breakfast biscuits, brought a putative class action alleging that MDLZ labeled the breakfast biscuits as “nutritious,” … Continue reading →

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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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