The New York Times doesn’t have statistics, but its reporter thinks Lanham Act litigation (filed by companies against their competitors over allegedly misleading advertising) is on the rise these days.
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Posts tagged as:
advertising
When you search Google on the name of the prominent Milwaukee personal injury firm of Habush, Habush & Rottier, you get a paid ad link from one of its competitors, the Brookfield, Wisc. firm of Cannon & Dunphy. So now Habush is suing its rival. [Milwaukee Journal-Sentinel]
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- Judge finds Army Corps of Engineers negligent in Katrina levees suit [WSJ Law Blog, Krauss/PoL]
- Feds raise the Gibson guitar factory in Nashville on an exotic-woods rap [The Tennessean] Eric Scheie has a few things to say about what turns out to be a remarkably comprehensive federal regulatory scheme on trade in wood enacted with little public discussion as part of the 2008 farm bill [Classical Values]
- In the mail: Amy Bach’s new book Ordinary Injustice: How America Holds Court, very favorably reviewed by Scott Greenfield not long ago (AmLaw Daily interview with author);
- Pension tension: link roundup on CALPERS mess [Reynolds]
- Maine passes very sweeping law banning marketers from collecting or using wide array of information about minors, but state acknowledges that much of the law probably wouldn’t pass constitutional muster and won’t be enforced [Valetk/Law.com, Qualters/NLJ]
- StationStops, which provides a mobile app for NYC commuter schedules, seems to have survived its legal tussle with New York’s MTA and thanks those who helped call attention to the story, with generous words for a certain “great blog”;
- Lawsuits cost Chicago taxpayers $136 million last year [Fran Spielman, Sun-Times]
- Blawg Review #238 is from Joel Rosenberg and bears the title, “Celebrating the International Day of Tolerance … and the NRA’s Birthday” [WindyPundit]
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- Worst, most dangerous legal trend of the moment: trial lawyers continue big Capitol Hill push to overturn Supreme Court’s valuable Iqbal and Twombly decisions on lawsuit procedure [Point of Law and more, Thomas Dupree/WLF, Beck & Herrmann and more, earlier]
- Lawyers rush to courthouse to beat deadline for new Oklahoma limits on liability suits [Tulsa World]
- Spokesman for Attorney General Jerry Brown admits he’s taped reporter conversations without their consent, seeming violation of California law [SF Chronicle]
- UK: motorist could face prosecution for splashing kids by driving through puddle, at what she says was kids’ request [BoingBoing]
- “Is the pay czar unconstitutional?” [Bainbridge on McConnell, WSJ; Ribstein on link to PCAOB case]
- More “deceptively named fruity cereal” suits in California [Lowering the Bar ("I still think this is like claiming emotional distress because you just learned 'The Hobbit' isn't a true story,") Ken at Popehat ("Froot of the Poisonous Tree of Litigiousness"), earlier here, here, here, here, etc.]
- A city of stool pigeons: Chicago to pay those who inform on tax cheats [NBC Chicago]
- Ill-fated stint as pole dancer leads to lawsuit against Arizona bar [Above the Law]
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Disgruntled California consumer Roy Werbel is the latest to file putative class-action complaints against the makers of Cap’n Crunch Crunchberries and Froot Loops because their products do not contain actual fruit or, as the case may be, froot. [SF Weekly and followup via Above the Law] Earlier coverage here, here, here, etc.
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Russell Jackson on Dannon’s proposed deal to resolve class action lawsuits (see Jan. 24, 2008) over its promotion of its Activia and DanActive lines as beneficial to health:
The proposed settlement also contains “equitable relief” in the form of restrictions on advertising and labeling. Reading these so-called restrictions, I am struck by the fact that the statements challenged in these lawsuits clearly were not false. Indeed, if I were still teaching my Product Liability course, I would ask my students to study this settlement and tell me whom they trust the most to issue restrictions on speech based on the results of scientific research: lawyers (as here), judges, juries, or scientists employed by regulatory bodies.
Lawyers want $10 million plus expenses, while Dannon’s outlays will depend in part on how many consumers file claims (via Calif. Civil Justice).
P.S. Should have caught this before: Ted discussed this case yesterday at his Center for Class Action Fairness blog.
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Barb Dybwad, Mashable: “The proposed law comes from French MP Valerie Boyer and is inspired by a recent report she authored on anorexia and bulemia. She points to the deterimental effect that unrealistic body images can have on adolescents.” More: Jacqui Cheng, Ars Technica; Ken at Popehat (UK’s Liberal Democrats promote similar ban for some ads).
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And a New Jersey lawyer hopes to hold them to it via lawsuit, despite a “we will not honor typos” clause in the retailer’s announced policy. [ABA Journal]
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An old contract-law chestnut: when does a public statement along these lines rise to the status of a legally enforceable reward offer? Dave Hoffman at Concurring Opinions considers it unlikely that a law student will get past summary judgment in his suit against a criminal defense attorney who went on Dateline and promised (or at least seemed to promise) a cool million to anyone who proved his client could have committed the crime of which he was accused.
Steve Chapman on the new tobacco regulation bill: “When it gets in a mood to regulate, Congress doesn’t like to trouble itself with nuisances like the First Amendment.”
A judge has tossed a California woman’s would-be class action lawsuit, however, finding that a reasonable consumer would not expect the brightly colored balls to be or contain actual berries or fruit. Per Kevin Underhill, Lowering the Bar: “Plaintiff did not explain why she could not reasonably have figured this out at any point during the four years she alleged she bought Cap’n Crunch with Crunchberries in reliance on defendant’s fraud.” More: California Civil Justice (same law firm sued over Froot Loops); update from Lowering the Bar.
And: Hal Hewell of Hewell Law Firm, which filed the suit, writes in comments that neither the plaintiff
nor her first amended complaint stated that she believed “crunchberries” was a real fruit (check it out on Pacer, along with our motion for reconsideration to get the full story). Your contention that she did is simply false and has exposed her to widespread (and unwarranted) ridicule.
Don’t let the facts get in the way of a good story…. You owe her an apology.
My response: Okay, let’s try to phrase things in a way highly favorable to Hewell and his client. The suit sought recovery against the cereal maker on the grounds a reasonable consumer would understand “Crunchberries” to contain actual fruit, whereas they apparently in fact contain only a little strawberry juice concentrate. (I’ve slightly expanded the first sentence above accordingly). In reaching his conclusion that the only course consistent with “personal responsibility and common sense” was to dismiss the case, the judge found it significant that it is common knowledge that no fruit known as a “crunchberry” grows wild or occurs naturally in any part of the world. Any reasonable consumer would therefore understand that the brightly colored balls must be a composite of ingredients not including that fictional berry, and (the judge found) could not reasonably claim to have been deceived by the monicker “CrunchBerries” into expecting something with more actual fruit content. Perhaps Mr. Hewell’s motion for reconsideration (PDF) will persuade the judge otherwise, and if so, I look forward to reporting that. (Update Jun. 15: judge denies reconsideration).
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At PoL, Michael Krauss comments on the latest stage in the appeal of Christoff v. Nestle USA, the $15.6 million award over using a model’s photo on a coffee label without ensuring the proper permissions were in place. Earlier here and here. More: Lowering the Bar.
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“Inventor of Vibrating Toilet Seat Sues Google Over Allegedly Defamatory Search Results” [Citizen Media Law]
P.S. Also in the news this morning, a less colorful lawsuit against Google over search results: the principals of the New Haven, Connecticut personal injury law firm of Stratton Faxon are incensed that when you search on their firm’s name in Google, you get along with the results an auto-generated ad from a competitive firm.
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Sara Lee sues Kraft over its advertising claims regarding the taste of hot dogs.
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The Food and Drug Administration wants to protect you, whether you’d like it to or not. Don Surber: “Next they will tell me that Lucky Charms are not magically delicious, but rather manufactured like any other cereal.”
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After the much-publicized (and remarkably quickly solved) murder, state attorneys general demand the regulation of Craigslist.
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- Boy fatally shoots stepbrother at home, mom sues school district as well as shooter’s family [Seattle Post-Intelligencer]
- Problem gambler sues Ontario lottery for C$3.5 billion [Toronto Star]
- Cop declines training in which he’d be given Taser shock, and sues [Indianapolis Star]
- Ultra-litigious inmate Jonathan Lee Riches scrawls new complaint linking Bernard Madoff, Britney Spears [Kevin LaCroix]
- Just to read this update feels like an invasion of privacy: “Judge to Hear Challenge to $6M Herpes Case Award” [On Point News, earlier]
- “Best criminal strategy: join the Spokane police” [Coyote Blog] More: Greenfield, Brayton.
- Will mommy-bloggers be held liable for freebie product reviews? [Emily Friedman, ABC News, earlier]
- Update: “Fifth Circuit says no bail for Paul Minor” [Freeland]
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Phillips Givens’ IP Law 101 has more on the Federal Trade Commission’s proposed extension of liability to situations where bloggers or others in social media fail to disclose the receipt of freebie services (such as entertainment or software) or write insincerely favorable posts about the experience. Earlier here. More: Jeff Winkler, Reason “Hit and Run”.
P.S.: Doesn’t sound as if bloggers have much to worry about, though, if the topics on which they provide favorable coverage are of a more political sort.
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