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On Tuesday, the Second Circuit “clarif[ied] certain aspects of [its] false advertising jurisprudence” concerning comparative advertising in particular. In Merck v. Gnosis, the Court held that legal presumptions of consumer confusion and injury for purposes of finding liability and damages in Lanham Act false advertising cases are appropriate where there are only two players involved in the market, the claims are literally false, and there is proof of deliberate deception. The claims at issue were related to folate, a B vitamin that helps the body make new cells, and is used in vitamins and nutritional supplements. Merck’s folate product, Metafolin, is comprised of a natural isomer, whereas Gnosis’ folate product, Extrafolate, is comprised of a two isomers mixed together, one natural, Keep reading . . .
Several years ago, Top Surgeons, Inc., a marketing company owned by brothers Benjamin and Michael Omidi, began a 1-800-Get-Thin advertising campaign. With the ads, the Omidi brothers claimed that they could help people—I’m sorry I can’t help myself—Omidi the fatty. The ads were for the Lap-Band procedure and allegedly lulled people into a false sense of security about the risks associated with it by not providing proper warnings. People calling the number would be referred to participating Los Angeles clinics affiliated with Top Surgeons and the Omidi brothers. Unsurprisingly, some people who went through with the procedure sustained serious injuries. Even less surprisingly, a false advertising class action was filed as a result. Faitro et al. v. Top Surgeons et al. was brought in Keep reading . . .
The Los Angeles Clippers are in the news again, this time for an ill-advised promotional text message marketing campaign. Fans filed a class action suit against the pro basketball team in February, 2013, after the team sent them text messages without the fans’ express written consent to receive them, in violation of the Telephone Consumer Protection Act (TCPA). The case was brought in the Central District of California and captioned Friedman v. LAC Basketball Club, Inc., 2:13-cv-00818-CBM-AN. In the complaint, it was alleged that while attending a Clippers game, plaintiffs learned they could send messages directly to the scoreboard from their phone by texting a designated number. The announcement alerting them of this fact, however, did not disclose that the Clippers would store the numbers Keep reading . . .