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sumers about the price of its black pepper and diverted sales from watkins s competing products when walmart tested watkins products they competed primarliy against mccormick s pepper sold beside it walmart was concerned about watkins higher price but watkins believed it was responding to commodity price spikes and that everyone else would also increase prices mccormick however allegedly responded by reducing the volume of black pepper in its tins but keeping the tins the same size shrinking the contents of its small tin from two ounces to 1 5 ounces its medium tin from four ounces to three ounces and its large tin from eight ounces to six ounces this allowed mccormick to advertise what seemed like an attractive lower price and charge more e g mccormick s small tin sold for an average retail price of 2 10 while watkins s small tin had an average retail price of 3 17 mccormick s per ounce price however was 1 40 while watkins s was 1 58 per ounce a smaller gap the mccormick medium tin was priced at 3 22 while watkins s was 4 11 but mccormick s per ounce cost was 1 07 while watkins s was 1 03 walmart dropped watkins s black pepper due to poor sales numbers watkins sued mccormick under the lanham act and coordinate state law mccormick argued that watkins s expert testimony on damages should be excluded and thus that watkins hadn t established injury or causation for any of the forms of relief it seeks the court disagreed the watkins expert calculated watkins s lost profits during the walmart test the profits watkins would have realized between 2015 and 2020 if the test had been successful and walmart had expanded the distribution of watkins s black pepper to 3 000 stores and mccormick s profits from its reduced volume tins as to the first watkins s and walmart s sales projections provided a reasonable basis for determining lost profits and as for the second it was fine to use watkins s vanilla extract a similar product from the consumer s perspective to project lost profits subject of course to cross examination disgorgement mccormick argued that watkins failed to submit any evidence on whether its profits were attributable to its allegedly deceptive packaging but the court accepted watkins s argument that once it established that it suffered injury in fact it need not prove attribution or diversion of sales in order to bring a disgorgement claim as soon as watkins shows statutory standing the burden shifts to mccormick to prove that any of those sales were not due to the allegedly unfair competitive practices thus for disgorgement of profits a plaintiff need only show the defendant s sales of the allegedly falsely advertised products after which the burden shifts to the defendant to prove any costs or deductions this contrasts to damages which require proof of a causal link between plaintiff s injury and defendant s conduct here s the language that caught my eye disgorgement imposes a lower burden than money damages and injunctive relief because it serves a different purpose disgorgement an equitable remedy targets the wrongdoer and seeks to deter improper conduct and prevent unjust enrichment to achieve these purposes any plaintiff with standing may seek to eliminate defendant s ill gotten gains by pursuing disgorgement of its profits emphasis added in some sense this is just a matter of emphasis the principles of equity are still present albeit in a footnote later and to seek profits is not definitely to get them but framing matters and i have a distinct sense that the framing is turning with none of the caveats about deliberateness of the false advertising or requiring false comparative advertising before considering a profits award that i have come to expect with that out of the way watkins showed enough evidence of injury to survive summary judgment for money damages a plaintiff must prove both actual damages and a causal link between defendant s violation and those damages however a plaintiff need only prove the fact of damage with certainty it need not prove the amount of damage with certainty the causation requirement ensures that a ny award of damages serve s as compensation not a penalty watkins argued that its consumer survey presented by an expert established injury by showing 1 that mccormick s reduced volume tins likely deceived consumers and 2 that the deception was material to consumer buying decisions the findings of deception and materiality in the consumer survey create a triable issue as to whether watkins suffered injury its evidence showed that mccormick was its primary competitor in walmart and its damages expert provided support for the claim that it was damaged during the walmart test but what about causation again a factual dispute even the alternate explanation that the black pepper was priced too high was likely exacerbated by mccormick s conduct disgorgement the court rejected mccormick s argument that a plaintiff seeking disgorgement under the lanham act must establish that the profits were diverted from the plaintiff s own sales and that the profits are attributable to the false advertising in contrast to other cases compare e g trafficschool com inc v edriver inc 653 f 3d 820 9th cir 2011 noncomparative advertising doesn t justify disgorgement without some evidence of monetary harm causation the court here found that the lanham act requires neither proof of diversion nor attribution for disgorgement of profits the lanham act then permits a defendant to deduct profits that it can prove were not earned due to its violative conduct plus plaintiff windfalls would be avoided by the bar on double recovery and by the principles of equity posted by rebecca tushnet at 8 05 am 1 comment email this blogthis share to x share to facebook share to pinterest labels damages false advertising remedies tuesday december 07 2021 targeting residents of one building can be advertising or promotion de cortes v brickell investment realty llc f supp 3d 2021 wl 5768173 no 21 21109 civ altonaga torres s d fla jul 1 2021 de cortes an 84 year old woman worked for defendants predecessors from 2003 2020 in their real estate business defendants represent clients in and out of florida in the negotiations for the purchase or sale of real property defendant bir s office is in the four ambassadors building where de cortes has lived and continues to live defendants represent 170 owners of units in the four ambassadors in 2020 de cortes obtained a florida real estate sales associate license and asked if she could serve as a real estate agent for bir instead bir terminated her and posted a notice on its office door stating that she d retired and it also emailed and texted clients with the same statement one of bir s employees told de cortes that she d signed a non compete agreement she alleged that he slipped the agreement into a stack of papers for her to sign because she had no incentive to sign a non compete agreement the agreement restricts her from doing business with bir s clients and from working for any of bir s competitors for a five year period after her employment ends bir then sent c d letters to de cortes and her new real estate firm alleging she breached restrictive covenants and theatening to sue the firm for injunctive relief and damages defendants allegedly informed clients and prospective clients residents owners and renters at the four ambassador building and four ambassadors agents employees and vendors that de cortes was stealing their clients and violating restrictive covenants de cortes alleged that the restrictive covenants were unenforceable because they didn t protect any confidential information long term relationships specialized training or other legitimate interests although de cortes s flsa claim relating to wages hours did not provide a basis for supplemental jurisdiction over state law tortious interference defamation etc claims the lanham act claim did even assuming rule 9 b applied de cortes sufficiently pled that claim the what was two false statements 1 plaintiff was retired from the real estate industry and 2 plaintiff is stealing bir s clients and violating lawful restrictive covenants defendants only argued about 2 though they contended that she didn t allege that they believed the noncompete was unenforceable when they made the relevant statements she did allege that her signature was fraudulently obtained which was enough on the pleadings commercial advertising or promotion defendants argued that the c d and statements to clients and prospective clients weren t commercial speech because the statements pertain to bir s legal rights under the agreement but c ommercial speech encompasses not merely direct invitations to trade but also communications designed to advance business interests that was pled here likewise defendants argued that the purpose of the statements was not to influence consumers to hire bir but instead merely to protect bir s legal rights but de cortes sufficiently alleged an alternative purpose to further bir s stranglehold on the four ambassadors building sufficient dissemination to the relevant public the requirement is that the representations must be disseminated sufficiently to the relevant public to constitute advertising or promotion within that industry here de cortes plausibly alleged that the members of the relevant purchasing public were the owners and renters and prospective owners and renters of the units in the four ambassadors and that the statements were widely disseminated to them what about in commerce de cortes pled that defendants 1 represent ed clients in and out of florida in the negotiation of the purchase or sale of property and 2 made false and misleading representations to individuals and entities involved in interstate commerce and these false and misleading representations affect interstate commerce this was enough under florida law a ny restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable because there was an actual controversy despite defendants near frivolous argument to the contrary the court could evaluate de cortes s claim for declaratory relief tortious interference defendants defense of the privilege of competition was premature defamation per se the statements about breach of agreements alleged fell within recognized categories of defamation per se in that they would tend to injure de cortes in her profession claims that de cortes was stealing clients and confidential information and violating enforceable restrictive covenants naturally imply plaintiff is untrustworthy and they threatened the company with which she affiliated with legal liability should it continue to employ her likewise statements that de cortes was retired indicated that she was not taking on work or clients in each case a client or potential client or employer or potential employer would likely take these statements to mean plaintiff was either not taking on work or if she was she could not be trusted with it thus injuring her in her trade or profession posted by rebecca tushnet at 4 50 pm no comments email this blogthis share to x share to facebook share to pinterest labels advertising commercial speech defamation false advertising tortious interference a talk on jigsaw puzzles and intellectual property my presentation on jigsaw puzzles and intellectual property at the 2021 virtual puzzle parley is now up on youtube posted by rebecca tushnet at 4 34 pm no comments email this blogthis share to x share to facebook share to pinterest labels copyright design patent patent presentations trademark monday december 06 2021 the class action continues to die by a thousand cuts herein of splitting injunctive relief claims stout v grubhub inc 2021 wl 5758889 no 21 cv 04745 emc n d cal dec 3 2021 stout sued grubhub over an allegedly false promise to provide unlimited free delivery to grubhub subscribers grubhub sought to enforce its arbitration agreement concluding that the complaint sought private injunctive relief in part and public injunctive relief in part the court found the claim severable under the arbitration agreement which had a severability clause these contortions occur because of california s rule that a right to public injunctive relief can t be waived whether by arbitration agreements or otherwise so the private relief the request not to charge grubhub subscribers extra for delivery under any circumstance has to be arbitrated but not the pure claim don t advertise unlimited free delivery while actually sometimes charging for delivery this split result occurred because the ninth circuit has narrowed the concept of public injunctive relief to only things that could in theory benefit anyone not things that benefit a specific existing class of people e g current grubhub subscribers i m not entirely sure why that means a split result in this case though the court reasoned that anyone could become a grubhub subscriber and thus an injunction against falsely advertising the program benefits the public but by the same logic wouldn t a ban on actually charging extra delivery fees to grubhub subscribers in the future benefit the public any one of whom could join grubhub this all stems from hodges v comcast cable communications llc 12 f 4th 1108 9th cir 2021 which interpreted the california rule from a case called mcgill as holding that public injunctive relief 1 is usually future directed 2 does not require the class action mechanism and 3 is distinguished from private injunctive relief which provides benefits to an individual plaintiff or to a group of individuals similarly situated to the plaintiff by involving diffuse benefits to the general public as a whole the paradigmatic example of public injunctive relief is an injunction against false advertising aimed at the general public thus injunctive relief that only benefits people who become customers is private injunctive relief although injunctive relief that only benefits another subset of the public such as those eligible for free tax filing services is not an order enjoining grubhub from continuing to engage use or employ its practice of misrepresenting its delivery fees the court rejected plaintiff s argument that there were two ways to address the false advertising either to change the advertising or to make it true so it was all public injunctive relief t he fact that the alleged underlying misconduct concerns false advertising does not mean that any requested injunctive relief affecting the accuracy of that advertising is automatically deemed public in nature since a court should consider who primarily benefits from the injunctive relief requested and who is only incidentally benefited i think the primarily consideration here is more understandable as being about forward looking versus backwards looking otherwise the logic that false advertising while targeted at the world at large actually has a chance of harming only a subset of people should mea...