Tag Archives: procedure

Pleading compliance w/test rules doesn’t plausibly plead compliance for consumer plaintiffs

Posted on December 11, 2018 by rtushnet

Anglin v. Edgewell Personal Care Co., 2018 WL 6434424, No. 4:18-CV-00639-NCC (E.D. Mo. Dec. 7, 2018) Are there people who believe that Twiqbal improved consistency?  Because I do not understand the level of detail required. Here, the magistrate holds that … Continue reading →

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Preserve challenged ads/social media posts after receiving a C&D or risk sanctions

Posted on August 10, 2018 by rtushnet

Nutrition Distribution LLC v. Pep Research, LLC, No. 16CV2328-WQH(BLM), 2018 WL 3769162  (S.D. Cal. Aug. 9, 2018) (magistrate judge) A spoliation/false advertising issue.  “While Defendants produced some social media documents, the production did not include Facebook or Twitter posts relating … Continue reading →

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Blast from the past: false price claims insufficiently pled

Posted on February 2, 2017 by rtushnet

Ashley Furniture Indus., Inc. v. American Signature, Inc., 2015 WL 12999664, No. 11-cv-427 (S.D. Ohio Mar. 12, 2015) At this point I will just institute a “blast from the past” category for Westclip.  This one made it because of a … Continue reading →

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Court finds Lanham Act laches on the pleadings given p’s delay

Posted on December 20, 2016 by rtushnet

Lifeway Foods, Inc. v. Millenium Products, Inc., No. CV 16-7099-R, 2016 WL 7336721, — F. Supp. 3d – (C.D. Cal. Dec. 14, 2016) Lifeway sued defendants under federal and state false advertising law for allegedly selling a product that didn’t … Continue reading →

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membership in swingers club not (yet) disclosed in Lanham Act case

Posted on October 5, 2016 by rtushnet

Edmondson v. Velvet Lifestyles, LLC, No. 15-24442-CIV, 2016 WL 5682591 (S.D. Fla. Oct. 3, 2016) I don’t get to blog discovery disputes often; that this one is unresolved is frustrating, but the court asks useful questions.  “May Plaintiffs pursuing a … Continue reading →

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failure to speak can be advertising but not presentations to trainers

Posted on August 10, 2016 by rtushnet

WIKA Instrument I, LP v. Ashcroft, Inc., 2015 WL 11199059, No. 13-CV-43 (N.D. Ga. Jul. 10, 2016) WIKA sued Ashcroft, a competing maker of pressure gauges, for false advertising and related claims, and Ashcroft counterclaimed similarly.  WIKA sells the XSEL … Continue reading →

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Minimal pleading of responsibility suffices to evade 230 dismissal

Posted on April 19, 2016 by rtushnet

Congoo, LLC v. Revcontent LLC, 2016 WL 1547171, No. 16-401 (D.N.J. Apr. 15, 2016)   The parties compete in the market for native advertising.  Congoo alleged that Revcontent caused false/misleading native advertising to be published.  Revcontent asserted §230 immunity.  The … Continue reading →

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Court rejects Zippo jurisdiction test but allows suit over alleged copying

Posted on January 25, 2016 by rtushnet

Kindig It Design, Inc. v. Creative Controls, Inc., — F. Supp. 3d —-, 2016 WL 247574,  No. 2:14-cv-00867 (D. Utah Jan. 20, 2016)   Mostly a personal jurisdiction ruling in this copyright/patent infringement/false advertising case brought by Kindig, which customizes … Continue reading →

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Do implicit falsity plaintiffs have to plead the existence of a survey?

Posted on September 2, 2015 by rtushnet

Vincent v. Utah Plastic Surgery Society, — Fed.Appx. —-, 2015 WL 5090868, No. 13–4146 (10th Cir. Aug. 31, 2015)   Plaintiffs (cosmetic surgeons) sued defendants (plastic surgeons) for false advertising under the Lanham Act and monopolization under the Sherman Act … Continue reading →

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The dangers of only arguing one half of 43(a)

Posted on April 29, 2015 by rtushnet

Diodato v. Wells Fargo Ins. Servs., USA, Inc., 44 F. Supp. 3d 541 (M.D. Pa. 2014) Darrell Diodato was employed by Wells Fargo Insurance for thirty-six years as an insurance producer, servicing existing insurance business and originating new insurance business. … Continue reading →

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