Mekhail v. North Memorial Health Care, --- F.Supp.3d ---- , 2024 WL 1332260, No. 23-CV-00440 (KMM/TNL) (D. Minn. Mar. 28, 2024) Mekhail alleged that North’s use of a piece of hidden software on its websites (a pixel developed by Meta) surreptitiously tracked, collected, and monetized various aspects of her online activity, including sensitive medical information protected by law. Although she alleged violations of the federal and Minnesota wiretap statutes and the Minnesota health records statute (which all survived the motion to dismiss), I’ll focus on claims under the Minnesota consumer frau ..read more

Good Meat Project v. GOOD Meat, Inc., --- F.Supp.3d ---- , 2024 WL 1083462,  No. 23-cv-04145-RFL (N.D. Cal. Feb. 12, 2024) GMP is a nonprofit focused on sustainable butchery and meat production practices. It provides farmers, ranchers, and butchers with marketing education and technical assistance; incubates “Meat Collectives” across the country; and educates consumers about responsible meat production and consumption practices. GMP owns two federally registered trademarks: the “GOOD MEAT” standard character mark and the “GOOD MEAT BREAKDOWN” design mark. GMI is a food company which prod ..read more

Corbett v. PharmaCare U.S., Inc., 2024 WL 1356220, No. 21cv137-JES (AHG) (S.D. Cal. Mar. 29, 2024) The court partially grants class certification and rejects motions to exclude experts. Plaintiffs allege consumer protection and breach of warranty claims based on PharmaCare’s Sambucol product, a dietary supplement that is advertised to “support immunity” and contain a proprietary extract of black elderberry. Sambucol comes in various forms, including syrup, tablets, capsules, and gummies. The challenged labels include some combination of the following statements: “Supports Immunity”; “Scientifi ..read more

 My son informs me that this is an "illegal build" but I like it anyway. http://tushnet.blogspot.com/feeds/posts/default?alt=rss ..read more

 Interesting NYT story, in which I am quoted. http://tushnet.blogspot.com/feeds/posts/default?alt=rss ..read more

 I'm on Excited Utterance with Ed Cheng discussing my article with Chris Buccafusco. http://tushnet.blogspot.com/feeds/posts/default?alt=rss ..read more

Hasemann v. Gerber Prods. Co., 2024 WL 1282368, No. 15-CV-2995(EK)(JAM), 16-CV-1153(EK)(JAM), 17-CV-0093(EK)(JAM) (E.D.N.Y. Mar. 25, 2024) Gerber Good Start Gentle formula isn’t like most other infant formulas, which are made with “intact” cow’s milk protein. GSG uses cow’s milk protein that has been partially broken down (“100% Whey-Protein Partially Hydrolyzed”). The FDA allowed GSG to make “certain specified, modest claims” related to atopic dermatitis, aka eczema, which is the most common allergic disease in infants. But the FDA was very limited in what it allowed: It would not object if G ..read more

Moore v. GlaxoSmithKline Consumer Healthcare Holdings (US) LLC, --- F.Supp.3d ----, 2024 WL 348821, No: 4:20-cv-09077-JSW (N.D. Cal. Jan. 30, 2024) The court grants partial class certification and allows/excludes some expert testimony in this case alleging that ChapStick products were misleadingly labeled “100% Natural,” “Natural,” “Naturally Sourced Ingredients,” and “100% Naturally Sourced Ingredients” when they actually contain non-natural, synthetic, artificial, and/or highly processed ingredients. The court allowed the expert testimony of a survey researcher for a proposed consumer p ..read more

Schotte v. Stop & Shop Supermarket Co., 2024 WL 1251284, No. 1:23-cv-10897-IT (D. Mass Mar. 22, 2024) Stop & Shop allegedly deceptively advertised cleansing wipe products as “flushable” in violation of Mass. Gen. Laws ch. 93A; Schotte also brought warranty, unjust enrichment, and fraud claims. The court declined to dismiss the complaint. The Stop & Shop Wipes, which vary in fragrance and style, are all marketed and sold with bold, prominent font labeling them as “flushable” on the front of the packaging. Following the word “flushable” on the front of all packaging is a “†”and the t ..read more

Princeton Excess & Surplus Lines Ins. Co. v. R.I. Cranston Entertainment Inc.; 2024 WL 1285631, C.A. No. 21-63-JJM-PAS (D.R.I. Mar. 26, 2024) Defendant, d/b/a Wonderland, operated an adult entertainment club and was one of the many such sued by various models for using their images in advertising without their consent from 2015 to 2019. Princeton insured Wonderland from 2016-2018 (with a broad exclusion for defamation, invasion of privacy, and various forms of advertising injury in the second year called the Exhibitions and Related Marketing Exclusion), and agreed to defend the club but re ..read more