9th Circuit rules failure to recognize labeled ads as such “implausible”

Posted on October 23, 2017 by rtushnet
Novation Ventures, LLC v. J.G. Wentworth Co., No. 16-55289, 2017
WL 4711477 (9th Cir. Oct. 19, 2017)
District
court opinion discussed here. The court of appeals affirmed the dismissal
of this case against J.G. Wentworth arguing that its use of different names to
advertise structured settlement products, creating the appearance of
competition but allowing Wentworth to charge higher prices/driving competitors
further down in search results, was misleading and anticompetitive.  Novation failed to allege antitrust injury;
merely having a harder time competing isn’t actionable, and any harm to
consumers would have made it easier for Novation to compete on price. Also, “the
whole advertising market was open to Novation—that market was not Google alone,
and, at any rate, Novation could compete for Google advertising.”
And here’s a quote that defense lawyers will like a lot: “the
assertion that consumers are not wise enough to recognize labeled
advertisements for what they are, or to scroll down farther than the first
three entries they see, is itself not plausible.”  This indicates why the false advertising
claim was doomed; Novation didn’t plead any literally or implicitly false
statement by the ads, only that the separate entities didn’t advertise their
affiliations. And it was implausible that consumers seeking to sell future payments from structured settlements would fail
to exercise a relatively high degree of care in considering ads from structured
settlement companies.

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9th Circuit rules inability to trust future representations provides standing for injunctive relief

Posted on October 23, 2017 by rtushnet
Davidson v. Kimberly-Clark Corp., 2017 WL 4700093, — F.3d
–, No. 15-16173 (9th Cir. Oct. 20, 2017)
Rejecting a number of district court decisions, the Ninth
Circuit finds standing to seek injunctive relief under California consumer
protection laws even when the named plaintiff now knows the truth: “A
consumer’s inability to rely in the future upon a representation made on a
package, even if the consumer knew or continued to believe the same
representation was false in the past, is an ongoing injury that may justify an
order barring the false advertising.” 
This case involves wipes advertised as “flushable” which allegedly are
not. Davidson would like to buy truly flushable wipes, if such actually exist.
The district court dismissed the complaint under Rule 9(b))
because it concluded that Davidson failed to adequately allege “why” the
representation that the wipes were flushable was false; she didn’t allege that
she personally experienced problems with her home plumbing or the relevant
water treatment plant.  The court of
appeals reversed, finding her allegations sufficient and plausible.  Davidson alleged that flushable means
“suitable for being flushed,” requiring an item to be capable of dispersing
within a short amount of time. This definition of flushable was supported by
dictionary definitions and Kimberly–Clark’s own statement on its website that
its flushable wipes “are flushable due to patented technology that allows them
to lose strength and break up when moving through the system after flushing.”  Davidson alleged that the actual wipes she
purchased failed to “disperse and disintegrate within seconds or minutes” and “did
not break up in the toilet bowl like toilet paper but rather remained in one
piece.”  To the extent the district court
dismissed the original complaint because Davidson failed to allege facts
“showing how she came to believe that the [Scott Wipes] were not ‘flushable,’ ”
that was wrong, because the complaint otherwise satisfied Rule 9(b).
The district court also held that Davidson didn’t allege
damages, in that she hadn’t pled “facts showing that her use of the wipes
damaged her plumping, pipes, or septic system.” But that wasn’t required—paying
a premium for a falsely advertised product is sufficient harm to maintain a
cause of action.  Davidson alleged that,
without the misrepresentation, she wouldn’t have bought the wipes or would have
paid less for them; that was enough.
Article III standing for injunctive relief: A plaintiff must
demonstrate constitutional standing separately for each form of relief
requested. The courts that have found no standing to seek injunctive relief generally
reason that “plaintiffs who are already aware of the deceptive nature of an
advertisement are not likely to be misled into buying the relevant product in
the future and, therefore, are not capable of being harmed again in the same
way.” The court of appeals disagreed:
Knowledge that the advertisement or
label was false in the past does not equate to knowledge that it will remain
false in the future. In some cases, the threat of future harm may be the
consumer’s plausible allegations that she will be unable to rely on the
product’s advertising or labeling in the future, and so will not purchase the
product although she would like to. In other cases, the threat of future harm
may be the consumer’s plausible allegations that she might purchase the product
in the future, despite the fact it was once marred by false advertising or
labeling, as she may reasonably, but incorrectly, assume the product was improved.
This result also prevents the untoward result that,
otherwise, removing a case from state to federal court—as happened here—would
enable a defendant to get rid of a remedy otherwise available.  After all, “the primary form of relief
available under the UCL to protect consumers from unfair business practices is
an injunction.” Without injunctive relief, “California’s consumer protection
laws would be effectively gutted.”  Or
there could be a “perpetual loop” of “plaintiffs filing their state law consumer
protection claims in California state court, defendants removing the case to
federal court, and the federal court dismissing the injunctive relief claims
for failure to meet Article III’s standing requirements.”
Given Davidson’s allegations, she adequately alleged a
desire to buy flushable wipes and an inability to rely on Kimberly-Clark’s
representation of flushability, which was enough to constitute a “threatened
injury [that is] certainly impending,” thereby establishing Article III
standing to assert a claim for injunctive relief.
Judge Berzon concurred, noting that the majority assumed
that it was required to perform a separate standing analysis for each “form of
relief.”  She disagreed that this
assumption was a requirement of the “case or controversy” requirement of
Article III, and argued that it was instead “an artifact of the discredited
practice of conflating the prerequisites for injunctive relief with the Article
III prerequisites for entry into federal court.” Instead, “we have a single
dispute—a single case, a single controversy—giving rise to multiple forms of
relief.”  Where “state law clearly
envisions those remedies as the product of a single adjudication of a single
issue,” to proceed otherwise in federal court “fundamentally undermines,
substantively, the enforcement of state laws in federal court.”  A remand to state court on injunctive relief
alone was motivated by the same desire not to let defendants strip plaintiffs
of their state-law remedies through removing a case over which there is clearly
Article III jurisdiction, but was not an acceptable solution. 
Citing Lexmark,
she contended that federal courts “have a history of improperly elevating the
prerequisites for relief to the status of jurisdictional hurdles.” In Judge
Berzon’s reading, the Supreme Court case on which the 9th Circuit
relied to require separate Article III analysis of each remedy in previous
cases, Lyons, did not actually make
the jurisdiction/remedy mistake, but rather inquired into whether the
nonjurisdictional requirements for equitable prospective relief were met, and
concluded they were not because of the absence of irreparable harm. This is of
little consequence in most cases following Lyons,
because where the availability of injunctive relief is governed by federal law,
the common-law prerequisites for injunctive relief “must eventually be
satisfied, and largely mirror the standing prerequisites.” But that’s not good
enough when this interpretation “imposes substantive limits on the availability
of relief under state law, in the service of constitutional interests that
aren’t actually under threat.” 

Still, Judge Berzon concurred fully, recognizing that the 9th
Circuit en banc opinion interpreting Lyons
the other way does require a separate standing analysis with regard to
prospective relief. 

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When the specifics are misleading: medical test stats draw false advertising claim

Posted on October 19, 2017 by rtushnet
Quidel Corp. v. Siemens Med. Solutions USA, Inc., 2017 WL
4654644, No. 16-cv-3059 (S.D. Cal. Oct. 16, 2017)
Quidel is a “diagnostic healthcare manufacturer” that
“developed, promotes and sells the Thyretain TSI Reporter BioAssay,” which is
“intended for the qualitative detection in serum of thyroid-stimulating
immunoglobins (TSI).” Quidel alleged that Thyretain “is the only commercially
available assay that detects TSI only, as opposed to those that fail to
differentiate between thyroid-stimulating and thyroid-blocking immunoglobins” (TBI),
commonly known as “TRAb” assays. Siemens sells the IMMULITE 2000/2000 XPi TSI
assay, which is intended to compete with Thyretain. In 2016, Siemens obtained FDA
clearance to market IMMULITE, under a “substantial equivalence” finding through
the Section 510(k) premarket notification process.
Quidel cited seven scientific studies and alleged that IMMULITE
detects both TSI and TBI, and therefore “compares similarly to other TRAb assays,
detecting but not differentiating between stimulating and blocking antibodies.”
E.g., one study found that while IMMULITE was “about as sensitive and
consistent as the Thyretain bioassay,” it did not “consistently distinguish[ ]
between stimulating and blocking activities in 20 selected cases of hypothyroid
Hashimoto’s thyroiditis.”  Thus, Quidel
challenged Siemens’ claims about its ability to differentiate TSI from TBI,
e.g., “Unlike TRAb (TSH receptor antibody) assays which detect both stimulating
and blocking antibodies, the Siemens TSI assay specifically detects only
thyroid stimulating antibodies, which are the hallmark of Graves’ disease.”  The “only” claim was later discontinued (though
the press release and marketing statements that included that word have not
been removed from the web), but the current product description claims that
IMMULITE detects TSI with 98.5% specificity, contrasting that to TRAb assays
that detect both TSI and TBI, thus allegedly implying that IMMULITE is TSI
only.  (What I can’t tell from the specificity claim, and I haven’t looked up the underlying documents, is whether this applies when there’s TBI but not TSI present, which would affect how similar IMMULITE is to Thyretain.)  Given that IMMULITE costs less and
works faster than Thyretain, Quidel alleged that this falsity caused it damage,
including the loss of at least one lab customer at a cost of $250,000 a year
and corrective advertising costs.
The court found that Quidel had sufficiently pled falsity
and misleadingness to satisfy Rule 9(b) for its Lanham Act and California state
law false advertising claims, as well as with intentional interference with
economic advantage.  Likewise with
materiality for false advertising: given the alleged cost and time differences,
it is reasonable to infer that an equivalence claim would influence purchasing
decisions.  Siemens argued that
materiality was inadequately pled because labs are sophisticated parties and
are required to independently verify an assay’s performance data, but that’s a
matter of reliance at most, not materiality.

Siemens argued that the FDCA precluded the Lanham Act claim
because the FDA pre-approved Defendants’ product name and performance data and
required Siemens to include that information on the IMMULITE label and
packaging insert. Moreover, Siemens couldn’t IMMULITE’s name or alter its
specificity and sensitivity data without prior FDA approval.  Under Pom
Wonderful, this argument failed. It’s still true that “a private action
brought under the Lanham Act may not be pursued when…the claim would require
litigation of [an] alleged underlying FDCA violation in a circumstance where
the FDA has not itself concluded that there was a violation.”  However, the claim here didn’t implicate FDA
determination of whether the premarket approval was ok.  Quidel didn’t challenge the product name and
performance data in the labeling, but rather the marketing statements (including
the use of specificity to distinguish IMMULITE from TRAb assays).  Thus, the court’s evaluation of Siemens’
similarity claims/failure to disclose the similarity of IMMULITE to TRAb assays
wouldn’t intrude on FDA’s exclusive enforcement authority.  Likewise, it would not be impossible to
comply both with the FDCA and state false advertising law.  “Removing the phrase ‘TSI only’ from
Defendants’ marketing materials or adding a disclaimer that IMMULITE does not
differentiate between stimulating and blocking antibodies does not reasonably
lead to Defendants being forced to change their assay’s name or performance
data such that Defendants would first need FDA approval.”

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Reading list: scientific claims and anti-fraud laws

Posted on October 18, 2017 by rtushnet
Shannon Roesler, Evaluating Corporate
Speech About Science (forthcoming, Geo. L.J. 2018)
Pull quote: “[C]onsumer protection laws should encourage accurate
representations of contemporaneous scientific knowledge, rather than lucky guesses
about the state of scientific knowledge in the future.”  Amen.
Abstract: How should courts
evaluate the truth or falsity of corporate speech
about science? This question is
critical to antifraud actions like the ongoing state
investigations into whether
ExxonMobil misrepresented scientific knowledge regarding
global climate change. ExxonMobil
claims that these investigations chill scientific
inquiry and burden speech on a
matter of public concern in violation of the First
Amendment. Of course, the notion
that scientific progress depends on the free exchange
of ideas is uncontroversial. But
although the free-market approach to scientific discourse
has firm foundations, this Article
suggests that it is a misguided approach to the question
of when corporate speech about
science is misleading.
Too often, courts and commentators
assume the truth of corporate speech about
science, an assumption that
inevitably results in First Amendment scrutiny. The
reluctance to analyze the truth of
such speech is understandable given the nature of
scientific knowledge itself.
Scientific knowledge is not easily described in terms of truth
or falsity. But corporate speech
that uses the inherent uncertainty of scientific inquiry to
mischaracterize scientific
knowledge is not participating in scientific discourse.
Moreover, when courts treat such
speech as part of a larger scientific debate, they
threaten to undermine the deterrent
function of antifraud laws and shift the costs of

misleading speech onto the public.

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Undisclosed, and disclosed, influence when going to the mattresses

Posted on October 17, 2017 by rtushnet

Fast Company has a great story about the intricate operations and arguable shenanigans of mattress reviewers who are also paid affiliates.

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Consumer’s ability to trust future representations provides standing to seek injunctive relief

Posted on October 16, 2017 by rtushnet
Delman v. J. Crew Group, Inc., 2017 WL 3048657, No. 16-9219
(C.D. Cal. May 15, 2017)
This is another factory outlet false advertising case. The
J. Crew Factory Website sells clothing and other items at what appears to be a
significant discount. It used two prices for each item: the “Valued At” price
and “Your Price.” A reasonable consumer would allegedly believe, falsely, (1)
that the Valued At price was the original price of an item sold at one of J.
Crew’s higher priced stores and/or (2) that the item is similar to one sold by
other merchants at or near the Valued At price. Instead, while the items
resemble those sold at non-outlet J. Crew stores, they’re of inferior quality
and were never offered, at a J. Crew store or anywhere else, for sale at the
Valued At price. “Despite the promise of a discount implicit in the comparison
between the Valued At and Your Price sales prices, J. Crew is in fact selling
the goods available on the Factory Website at full price.” 
J. Crew maintained in a previous lawsuit that the Valued At
price represented the price at which other retailers offered the same or
similar goods. Delman hired an expert who investigated to see whether the same
or similar goods were available for purchase from other retailers at or around
the Valued At price, but did not find comparable goods available at the Valued
At price.  Instead, many (if not all) of
the goods could be bought at or below the Your Price price.
The court found that Delman’s allegations satisfied Rule
9(b), both as to the implied discount-from-regular-J. Crew claim and the
“Valued At means prevailing market price for a similar item” theory. J. Crew
argued that her decision to plead two theories of deception made her
allegations fatally vague, but “there is no reason why a pricing scheme that is
purposely ambiguous could not also be deceptive or misleading.”  If a reasonable consumer could interpret the
Valued At price to mean one of multiple, mutually exclusive things, all of
which are untrue, that states a claim. 
Nor were the theories so implausible that no reasonable
consumer could be misled.  J. Crew argued
that “value” could only reasonably be interpreted to mean the defendants’
subjective opinion of the worth of the goods, based on dictionary
definitions.  But the dictionary wasn’t
the end of the matter, when the issue was “how a reasonable consumer would
interpret the phrase ‘Valued At’ in the context of the specific commercial
interaction that Plaintiff has challenged.” In context, “the great esteem in
which J. Crew holds its wares” was not the only interpretation a reasonable
consumer could give the term. As the court pointed out, the Valued At price was
located right next to the Your Price sales price, and was struck out.  “Why place the two prices next to one another
if they are not meant to be compared? And why strike out the Valued At price,
if not to suggest to the purchaser that he or she is getting a bargain of some
sort?”  This “visual language,” the court
wisely noted, “could easily be understood to mean that the Valued At price
refers to a real, objective price, which the Factory Website has discounted for
the benefit of its customers.”
Plaintiff did fail to provide proper notice as required to
bring a breach of contract claim in California, and also had to wait to bring a
CLRA claim given the notice requirement of the CLRA.
J. Crew argued that Delman suffered no damages, because she
received the goods that she paid for at the agreed-upon price.  But courts have rejected this argument under
California law.  “[A] bargain hunter is,
in fact, economically harmed when the seller inflates the perceived value of
its products” (citing Hinojos v. Kohl’s Corp., 718 F.3d 1098 (9th Cir. 2013)).

Finally, J. Crew argued that Delman lacked standing to seek
injunctive relief because she no longer risked being deceived by J. Crew’s
deceptive pricing. However, Delman alleged that she would purchase more apparel
from J. Crew if it were to cease making its false representations.  The issue wasn’t whether policy concerns for
the enforcement of California law could trump Article III, but rather that
Delman alleged irreparable injury in the future: she couldn’t ascertain, from
J. Crew’s pricing scheme, the true value of the items she’d like to buy, and
thus she can’t trust its bargain claims. 
This continued inability to trust was a sufficient likelihood of future
injury to confer Article III standing.

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TM use in ad text and on website not confusing where true source is clearly marked

Posted on October 16, 2017 by rtushnet
Guardian Pool Fence Sys. Inc., Plaintiff, v. Sunwest
Industries, Inc., No. 16-0824, 2017 WL 2931413 (C.D. Cal. Jun. 1, 2017)
Guardian and All-Safe compete in the market for mesh pool
fences; a Guardian fence costs around $2,000, and an All-Safe fence costs
around $1,500. The parties previously litigated keyword ad buys, but dismissed
the litigation. In 2016, a potential Guardian customer reportedly said that he
had seen the Guardian name in numerous places on All-Safe’s website and asked
if the two companies were related.
As a result, Guardian found that its name appeared on
All-Safe’s website in several places. “Guardian Pool Covers,” “Guardian Pool
Safety,” “Guardian Pool Fence,” and “Guardian Pool Products” all appeared as
“Topics” listed in the right hand column of All-Safe’s website, along with many
other topics such as “Swimming Pool Safety.” 
Each topic had its own page collecting all of the posts tagged with that
specific topic.  Each post had a “by”
field, which All-Safe used to insert topic labels.  Guardian argued that this practice suggested
that Guardian had authored the posts, but the court disagreed, given that other
“by” entries included “Removable Mesh Pool Fence” and “Swimming Pool Safety.”  The Guardian-tagged posts didn’t discuss Guardian,
but were generally about pool safety, and they didn’t offer products for
sale.  All-Safe said that it didn’t
authorize the Guardian tags, but that its third party vendor created them
without specific authorization, and they were removed shortly after this
litigation began.  The Guardian topic
pages were viewed 17 times total by 5 unique users, presumably some of them
Guardian’s counsel; 17 views was less than .01% of all All-Safe website
traffic. 
Here’s what the topic list looked like:
Here are some tagged posts: 

As for the keyword aspects of the case, from January 2008
until February 2011, All-Safe used “guardian pool fence” as a search term
targeted at Spain, Portugal, Puerto Rico, and Costa Rica, resulting in four
clicks.  These campaigns ended in
February 2011.   From January 2008 to May 2016, All-Safe’s AdWords
campaigns together generated well over 800,000 clicks.  Also, for a few months in 2016, Guardian
included “all safe pools” in its Google AdWords, along with eighteen other
search terms, several of which included the term “all safe” or “all-safe,” though
Guardian argued that this was inadvertent and in contravention of its standard
practice. In May 2016, a search for “all-safe” returned an ad for Guardian with
the headline “all safe pools – Guardianpoolfence.com.” “All safe pools”
generated six clicks on Guardian ads.
Guardian didn’t challenge All-Safe’s AdWords search program,
only the Guardian Topics on All-Safe’s website. The court found confusion
unlikely.  Along with the usual
multifactor test, internet search-related cases also require considering “an
additional factor of particular importance”: “the labeling and appearance of
the advertisements and the surrounding context on the screen displaying the results
page.” Though Guardian wasn’t making a search-related claim, but rather challenging
a webpage layout and tags in a topics section, this factor was still applicable
“because the full context of the webpage is important to assessing how a
consumer would understand the Guardian Topics.” In cases challenging online
activity, the Ninth Circuit has sometimes skipped the Sleekcraft test “in favor
of a more streamlined inquiry: ‘(1) Who is the relevant reasonable consumer?;
and (2) What would he reasonably believe based on what he saw on the screen?’” This
was the appropriate analysis here, “because it is a website rather than a
product that bears the mark.”
The consumers here would be careful and accustomed to
shopping online, given the cost of the pool nets.  What would such customers understand? 
The fact that the Guardian Topics
are listed as topics suggests that somewhere on All-Safe’s website there is
discussion of the various Guardian Topics. A company discussing a competitor on
its own website does not alone amount to trademark infringement or generate
confusion. A reasonably prudent consumer would draw very little from the fact
Guardian appeared as a topic on the All-Safe website. At worst, a reasonable
consumer might click on a topic “uncertain as to what they will find.”
A consumer who did click would find blog posts about pool
safety, not about Guardian.  “The use of
the term Guardian in the topic names is confusing, but it is confusing in that
it makes little sense given the ultimate content of the posts tagged with the
topic. It does almost nothing to suggest that Guardian is in any way the source
of the pool nets for sale through All-Safe, and pool nets are not directly
offered for sale anywhere in blog posts.” 
Thus, the uses wouldn’t create confusion as to the origin of All-Safe’s
goods or services.  Moreover, the Ninth
Circuit has cautioned that reasonable consumers “expect to find some sites that
aren’t what they imagine based on a glance at the domain name or search engine summary.”
Similarly, the court here considered reasonable consumers “capable of
dismissing dead-end topics labels as oddities, indicative of almost nothing.”
The fact that a single consumer might potentially have been
confused—the one who talked to Guardian’s VP—was insufficient to show likely
confusion, especially given the hundreds of thousands of views of All-Safe’s
website. All-Safe’s website prominently displayed its logo, and only its logo,
on every page. “This ‘broader context’ of the topics pages mitigates against
any possible confusion as to a connection with Guardian.” Summary judgment for All-Safe.

All-Safe counterclaimed based on Guardian’s use of “all
safe” or “all-safe” in Google AdWords. However, as All-Safe itself said, “there
is growing consensus in the case authorities that purchasing trademarked
keywords for the purpose of competitive keyword advertising does not violate
the Lanham Act.” Guardian didn’t use the All-Safe mark on its website or the
phrase “all safe” in its domain name. Plus, clear labeling of a search result
as an ad “can help eliminate any possibility of confusion.”  Interestingly, the court applied this
principle to an ad whose text arguably used both All-Safe’s mark and Guardian’s
mark, which not all courts would—the court thought that clear marking as an ad
was enough of a signal that consumers might get competing information.  Even though All-Safe’s trademark appeared in
the ad, it “also clearly incorporated Guardian’s non-infringing domain name,”
and thus Guardian’s ad wasn’t likely to confuse.

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Uncontradicted testimony that defendant’s claim lacks scientific support requires judgment for plaintiffs

Posted on October 10, 2017 by rtushnet
Rosendez v. Green Pharmaceuticals, No. D071073, 2017 WL
4400011 (Cal. Ct. App. Oct. 4, 2017) (unpublished)
Plaintiffs alleged that Green’s SnoreStop, a homeopathic
remedy for snoring, was a sugar pill falsely advertised to stop snoring.
Although the trial court found the testimony of Green’s homeopathy expert was
not credible and gave it no weight, the court also concluded that plaintiffs
failed to meet their burden of proof on their UCL, FAL, and CLRA claims, noting
they “proceeded on the theory that there is no scientific basis for the
advertised efficacy of SnoreStop” but “provided no evidence of tests to determine
the efficacy of SnoreStop.” The court of appeals reversed, implicitly rebuking
a number of recent cases that have (wrongly) interpreted California’s
standard—which does not allow private plaintiffs to require substantiation from
defendants—as precluding claims by private plaintiffs that rely on evidence
that shows no scientific support for the defendant’s scientific claims.
Green claimed that a clinical study showed that 79.5 percent
of SnoreStop users reported noticeable improvements within the first five
nights, but the study, according to plaintiffs, didn’t support the findings
attributed to it and “is instead characterized by severe methodological
deficiencies.” SnoreStop allegedly “simply consists of a myriad of toxic
substances that are provided in such extremely diluted form that they have no
impact on the human body whatsoever.” 
Homeopathy relies on dilution, and of SnoreStop’s seven “purportedly
active ingredients,” five were diluted to one part per million, one of to one
part per ten thousand and one part per million, and one to one part per
trillion.
Plaintiffs’ expert was Dr. Lynn Willis, who has a Ph.D. in
pharmacology.  Willis testified about the
two fundamental principles of homeopathy—the law of similars (treat a disease
with substances that cause symptoms mimicking the disease) and the principle of
dilution (diluting drugs makes them more powerful).   Willis testified he was not aware of any
valid scientific support for dilution, which is in direct opposition to dose
response theory, the basic principle of pharmacology.  The theory of homeopathy is that tapping the
diluted solution against a hard surface causes a release of healing energy, but
this has never been detected.  Based on
his education, training, research, and scientific review of homeopathic
literature, Willis opined that the homeopathic law of similars is “not
compatible with conventional theories of how drugs and other medications work,”
and was contrary to proven scientific theory, as was dilution.  He also specifically addressed each of
SnoreStop’s seven “active” ingredients (including belladona) and their dilution
levels.  He testified that each
ingredient would not, in isolation, relieve snoring, and that he was unaware of
any credible scientific evidence to support the claim that the combination, at
that dilution level, would be able to shrink swollen tissues that block air
passages (as claimed by defendant).  He
further testified that defendant’s clinical study was unreliable: among other
things, it relied on snorers’ bedmates’ opinions, and it failed to include a
power analysis to figure out how many subjects would be needed to detect a real
difference.  The study also showed that
45% of the placebo group showed a reduction in snoring, meaning that the test
group was also likely responding due to placebo response.  The net improvement that should have been
attributed to the treatment group was thus 20.4%, and he concluded that the
study should not be relied on to claim efficacy for SnoreStop.
Plaintiffs’ evidence also included the named plaintiff’s
testimony about her own experience with SnoreStop and its inefficacy for her.
At the close of plaintiffs’ case, Green moved for judgment
as a matter of law, which was denied.  Green
called, as an expert on homeopathy, Gregory Dana Ullman, who testified that he
practiced homeopathy and had written hundreds of articles on homeopathy. He
testified that he believed all of the statements at issue on the SnoreStop
package label were accurately stated and correct.  After closing arguments, the court concluded
that plaintiffs failed to meet their burden of proof, because Dr. Willis
couldn’t testify to the product as a whole, and thus there was insufficient
evidence that the combined ingredients failed to work.  As to the study, the court found that Dr.
Willis hadn’t conducted counter-testing of his own or proved that the study was
flawed.  However, the court found
Ullman’s testimony not credible and entitled to no weight, in part because of
his support for the use of a radionics machine, whereby a physician puts a
picture of his patient on one side, and a few medicines on the other side, and
then sees which of the medicines the needle points toward.
When the trial court concludes that the party with the
burden of proof failed to carry that burden, the question on appeal is whether the
evidence compels a finding in favor of the appellant as a matter of law. This
requires a finding that appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave no room for a
judicial determination that it was insufficient to support a finding.”  A trier of fact isn’t automatically required
to give a verdict that conforms to expert opinion, even if unanimous; the value
of the expert opinion depends on the quality of the evidence the expert
provides.  The trier of fact can only be
reversed unless it could not, in light of the record, reasonably reject the
expert’s testimony, which was the case here.
 
“Willis’s expert testimony regarding the efficacy of
SnoreStop was uncontradicted and unimpeached and constituted ample proof that
SnoreStop is not an effective snoring remedy.” Willis had relevant training and
expertise; he testified that there was no valid scientific support for the
dilution theory, and that it contradicted dose response theory, “the basic
principle of pharmacology. Willis also testified that he had never detected any
evidence to support the homeopathic idea that striking a substance releases
healing energy, noting that ‘science has no way to measure this energy.’” Thus,
he opined that homeopathic theories were “contrary to proven scientific theory.”  This testimony was unimpeached and
uncontradicted; the trial court gave Green’s witness testimony no weight. And
uncontradicted and unimpeached testimony of an expert witness may not be “arbitrarily
disregarded” by the trier of fact. 
“Willis’s testimony about the inefficacy and scientific
implausibility of homeopathy in general alone was sufficient to satisfy
plaintiffs’ burden of proving the inefficacy of SnoreStop as a snoring remedy.”
Moreover, his testimony wasn’t limited to homeopathy in
general, because he also testified about the inefficacy of each of SnoreStop’s
“active” ingredients and the inefficacy of those ingredients in combination.
The trial court mischaracterized his testimony in stating that Willis “could
not testify as to the product as a whole.” But he testified that each
ingredient wouldn’t work, and that he wasn’t aware of  any credible scientific evidence that the combination
would work and that he was of the opinion that they wouldn’t.  Also, though the court stated that plaintiffs
didn’t prove that Green’s cited study was flawed, Willis testified about a
number of flaws in the study.  Contrary
to the trial court’s statement, plaintiffs provided scientific evidence to
support their theory that there is no scientific basis for the advertised
efficacy of SnoreStop.
The trial court based its holding largely on plaintiffs’
lack of tests on the actual SnoreStop tablets. But Willis “was entitled to
accept the information on the label and could competently testify that given
that information, there is no scientific basis to conclude that SnoreStop could
have any effect on snoring beyond a placebo effect.” An expert’s opinion is not
unreliable simply because the expert’s opinions are based on data collected by
others. Because Willis’s reasoning, qualifications, or credibility were
unchallenged, the rejection of his opinions was arbitrary.
“Given the uncontradicted and unimpeached evidence that the
fundamental principles of homeopathy have no basis in science and that
SnoreStop in particular is not an effective remedy for snoring, the court
should have found for plaintiffs on both of their causes of action and awarded
the appropriate relief requested in plaintiffs’ complaint.”  In a footnote, the court noted that one older
California appellate case suggested that if a homeopathic product is listed in
the Homeopathic Pharmacopoeia of the United States (HPUS), its efficacy is
sufficiently established under the FDCA to avoid false advertising liability. However,
unlike non-homeopathic OTC drugs, homeopathic OTC drugs are not evaluated by
the FDA at all, and the FDA explicitly says that a homeopathic drug’s
compliance with the requirements of the HPUS “does not establish that it has
been shown by appropriate means to be safe, effective, and not misbranded for
its intended use.” So inclusion in the HPUS or compliance with FDA guidelines
regarding the HPUS “does not establish, much less guarantee, the product’s
efficacy.”

Finally, the trial court’s apparent decertification of the
class was in error; there was no indication that the requirements for
certification were no longer satisfied at the time of trial. The trial court was
directed to determine the damages, restitution, and other relief to which the
plaintiff class members were entitled. 

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Suing Doe reviewers under the Lanham Act fails

Posted on October 6, 2017 by rtushnet
Reybold Gp. v. Does 1-20, 2017 WL 4326360, No. 17-810 (D.
Del. Sept. 29, 2017) (magistrate judge)
Reybold sued the Does for infringement, dilution, injurious
falsehood, and defamation based on their statements on ApartmentRatings.com
about Reybold’s St. Andrews Apartment Complex, and made an ex parte motion for
discovery.  Reybold wanted to issue a
third-party subpoena to ApartmentRatings.com seeking, among other things, the
IP addresses from which the online postings originated. Reybold planned to then
subpoena the relevant ISPs associated with those IP addresses, in order to
identify names, payment information, and other identifying information
associated with those addresses.  The
court, rightly, denied the motion.
Here’s two examples of the comments at issue:

(b) anonymous
I would in no way recommend this complex. Apartments are
old, lawns are always trash covered, cigarette butts and dog crap everywhere.
Trash areas are always a mess. Maintenance stuff never gets done. When it does
they have to come back 3 or 4 times. My rent goes up every year and new people
get deals, yet I get nothing for staying. I’m out of here this year. There is
tons of new stuff around that is cheaper. Rock wood, Emblem, check these out.
So much nicer for less money. Also, my UPS and FedEx packages are always
getting stolen from my door and they don’t do anything about it. Good Riddance
$hlt Andrews.
Added Feb 01, 2017 …
(e) anonymous
I’ve been living at this place with bad wiring for months
now and no one seems to care. I have several outlets that spark when I use
them, some that don’t work at all, and one that only works when you tap on it.
The wiring in my home is obviously not right. I have been begging them to fix
it and they keep telling me they’re trying to get an electrician out to look at
it but no one ever shows. I have children and I should feel safe having them
live her[e] but I don’t. But let me pay rent one day late and they’re all over
me. I hate this place.

Expedited discovery requires the party seeking discovery to
demonstrate that its request is “reasonable” in light of the relevant
circumstances. Where such discovery is sought in order to identify unknown or
anonymous John Doe defendants, courts first ask whether the plaintiff has
established a prima facie case for each essential element of the claim(s) in
question. If so, courts have asked whether the plaintiff has demonstrated: (1)
that it has no other way to identify the alleged wrongdoers, aside from
obtaining the discovery at issue; or (2) that expedited discovery is necessary
because evidence identifying the defendants may be otherwise destroyed (e.g.,
as a result of routine deletion by third party ISPs). Good cause can exist in
these cases, although courts will still consider other protections for
defendants from misuse of their personal information.
The court looked at the Lanham Act claims first, since they
provided federal subject matter jurisdiction. There was no suggestion of false
association in the complaint; claims for “Unfair Competition” and “Commercial
Defamation” were both really false advertising claims.  Reybold failed to sufficiently allege
commercial advertising or promotion: that the reviews were commercial speech,
that they came from a defendant in commercial competition with Reybold [note
that this should have been replaced with the Lexmark standard, but it makes no difference], or that the speech
was made for the purpose of influencing consumers to buy a defendant’s goods or
services.  Seven of the 14 challenged
posts were listed as being written by a “Resident” or “Prospective
Resident[,]” and all 14 postings either directly state or very strongly imply
that the poster currently lives in, has previously lived in, or was thinking of
moving to St. Andrews.  No post was
explicitly identified with a competitor; one post mentions competitors, but
still claims to be from a renter making comparisons.  And no other facts were pleaded to explain
why the posts could plausibly be from competitors. 
Without the Lanham Act claims, the question arose whether
the court had subject matter jurisdiction over the remaining claims.  With anonymous Does, it was hard to show
diversity jurisdiction.  (Given the
content of the posts, the more plausible inference was that there was no
diversity jurisdiction.)  Some federal
courts apparently think otherwise, but the Third Circuit has a fairly clear
rule about whether the existence of unidentified or “Doe” defendants defeats
diversity jurisdiction: where there are no allegations as to their citizenship,
“John Doe parties destroy diversity jurisdiction if their citizenship cannot
truthfully be alleged.”

Given the lack of a prima facie federal claim and the apparent
lack of subject matter jurisdiction, the court denied Reybold’s motion for
expedited discovery.

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Fantasy gambling is newsworthy, doesn’t violate players’ rights of publicity

Posted on October 5, 2017 by rtushnet
Daniels v. FanDuel, Inc., No. 16-cv-01230 (S.D. Ind. Sept.
29, 2017)
Akeem Daniels, Cameron Stingily, and Nicholas Stoner played college
football and sued FanDuel and DraftKings for violating their Indiana right of
publicity. Defendants run fantasy sports websites and mobile apps; they
assemble a group of select collegiate players—including plaintiffs—to appear on
a list of available athletes, and they assign each player a fictitious
“salary.” A customer can then buy the services of individual athletes, and each
athlete on the fantasy team scores a certain number of points in each contest
based on real-life performance.  Defendants allegedly generated roughly $3.0
billion in customer entry fees in 2015, and used athletes’ names and likenesses
in marketing.
Indiana Code Section 32-36-1-8(a) provides that a “person
may not use an aspect of a personality’s right of publicity for a commercial
purpose during the personality’s lifetime or for one hundred (100) years after
the date of the personality’s death without having obtained previous written
consent ….” The statute defines a person’s right of publicity as “a
personality’s property interest in the personality’s: (1) name; (2) voice; (3)
signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance;
(8) gestures; or (9) mannerisms.”
The law does not apply to:
1. The use of a personality’s name,
voice, signature, photograph, image, likeness, distinctive appearance,
gestures, or mannerisms in material that has political or newsworthy value.
2. The use of a personality’s name,
voice, signature, photograph, image, likeness, distinctive appearance,
gestures, or mannerisms in connection with the broadcast or reporting of an
event or a topic of general or public interest.
3. The use of a personality’s name,
voice, signature, photograph, image, likeness, distinctive appearance,
gestures, or mannerisms in literary works.
4. The use of a personality’s name
to truthfully identify the personality as the performer of a recorded
performance.
Newsworthiness: plaintiffs argued that this exception didn’t
apply to noncommercial speech.  But the
statute only covers uses with a commercial purpose. Thus, “the exceptions must
apply to uses that are commercial in nature.” [Not all uses that have a
commercial purpose are commercial speech; the analysis here doesn’t require
understanding that, but below the conflation will cause some trouble.] 
Newsworthiness is broad under Indiana law. As a 1993 federal
court applying Indiana law wrote, “The privilege of enlightening the public is
by no means limited to dissemination of news in the sense of current events but
extends far beyond to include all types of factual, educational and historical
data, or even entertainment and amusement, concerning interesting phases of
human activity in general.” Plaintiffs argued that this 1993 case was
inapplicable because it was decided prior to the enactment of the ROP
statute.  But, of course, that’s exactly
why it applies—“[t]he legislature is presumed to know the common law and to
incorporate it into the statute except where it expressly indicates otherwise.”  Plus, a contrary holding would raise
significant constitutional issues, so avoidance supported a broad
interpretation as well. Given the breadth of the exception, plaintiffs’
athletic achievements and activities were newsworthy.
Plaintiffs argued that defendants weren’t “news
organizations” engaged in “reporting,” so they couldn’t qualify for the
exception, but neither of those were predicates for qualifying for the
exception, and the court wouldn’t read in any such requirements.  Plaintiffs then argued that the assignment of
fictitious salaries to plaintiffs and commentary posted in comment fields or in
commentary/blog portions of the sites weren’t newsworthy.  However, the statute doesn’t prohibit the use
of materials “associated with” the name, likeness, etc. of an individual—it
prohibits the use of the names and likenesses themselves. “Adopting Plaintiffs’
reading of the statute would bring an almost limitless universe of materials
within its reach, with obvious First Amendment implications.” Thus, fictitious
salaries and commentary [about those salaries?] didn’t constitute a person’s
name or likeness, and weren’t encompassed within the definition of a person’s
right of publicity. [For an example of what would be at risk with a contrary
holding, consider Joyce Carol Oates’ Blonde
or the more low-brow Alternate Presidents,
a collection of fictional stories (also, not coincidentally, including some
alternate Marilyn Monroe stories).] 
Thus, defendants’ motion to dismiss was granted on this ground.  (Defendants’ ads were also covered because
advertising related to exempt material is also exempt, which only makes sense.)
For the same reasons that the defendants’ materials were
newsworthy, they were also matters of public interest.  But the public interest exemption requires use
“in connection with the broadcast or reporting of an event or a topic.”
Defendants argued that their websites “report” information about college
sports, because they profile players on their websites; “corral [the] week’s
news, notes and injury updates;” and disseminate performance information. But
they also allow customers to create fantasy football teams.  The Ninth Circuit, in In re NCAA
Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1271 (9th
Cir. 2013), considered a similar challenge raised by former student athletes to
a video game, which allowed individuals to “control avatars representing
college football players as those avatars participate in simulated games,” and
ruled that the material at issue did not constitute “publishing or reporting.”  However, it also distinguished the video games
from the C.B.C. fantasy baseball case
because video games use “virtual likenesses” rather than just performance and
biographical data.  Here, defendants’ websites
could be used as “reference sources,” “either for purposes of playing the associated
game, or for information about the collegiate sports and athletes represented
on the websites.” This was a close call, but given the policy of defining
reporting broadly/constitutional avoidance, the court found that the materials
were “reporting” and defendants also won their motion to dismiss on that ground.
That was good, because they fared less well on their other
objections, which the court presumably addressed to save time after the
inevitable appeal.
DraftKings argued that its contests fell within the “literary
works” exception.  Other courts have
determined that video games are literary works for similar purposes, and
websites are literary works under the copyright law.  However, for the publication/reporting
exception, DraftKings tried to distinguish itself from video games, and it also
didn’t explain why “the particular features of fantasy sports competitions are
similar to the video games that courts have determined constitute literary
works.” This created factual issues not suitable for resolution at the motion
to dismiss stage.
Plaintiffs also argued that they were entitled to the
exemption for naming performers of recorded performances. The statute doesn’t
explicitly require that a protected entity be the entity that “otherwise
rightfully reproduce[s], exhibit[s], or broadcast[s] the recorded performance.”
However, defendants also used plaintiffs’ names and likenesses for purposes
other than to identify them as performers of a recorded performance. “At a
minimum, Defendants also listed selections of Plaintiffs’ athletic and statistical
achievements.” “The statute itself only lists a personality’s ‘name’ as subject
to coverage by this exception, and Defendants have offered no justification as
to why it should expanded to cover the other uses—including Plaintiffs’
likenesses—that are at issue in this case.”  [Does that mean that a greatest hits DVD would
violate the law if it talked about the players on the promo text on the back?]
The court also declined to recognize a First Amendment
defense at this stage, because it wasn’t clear (among other things) whether
defendants’ speech was noncommercial. In classifying whether “mixed” speech should
be classified as commercial or non- commercial, the Seventh Circuit has
highlighted the following relevant considerations: “whether (1) the speech is
an advertisement; (2) the speech refers to a specific product; and (3) the
speaker has an economic motivation for the speech.”  [But not all speech offered for profit is “mixed”
speech—I doubt the court would think that a (non-sponsored, I have to add) NYT
article or editorial was “mixed” speech even though the NYT seeks to make a
profit. The court thought it couldn’t figure this out at the motion to dismiss
stage, even though the pleading itself apparently distinguished between
defendants’ ads and the service defendants sold, so I’d say this could be done
on a motion to dismiss.

The court also rejected defendants’ copyright preemption
argument, because the Seventh Circuit’s holding in Toney indicates that persona (etc.) isn’t copyrightable subject
matter because it can’t be fixed.  It may be that a person’s likeness can’t be fixed
in a specific photo, but if she uses the same name through time I can’t see
what’s so unfixable about the name; I guess the argument must be that the name
is just the manifestation of the unfixed persona which is really what the ROP
protects.  Still, that name is fixed in a tangible medium, like other uncopyrightable stuff as to which state-law protection is preempted.  Sigh.

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