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.
“The American Booksellers Association loves people who buy books. It loves them so much that it wants to protect them from wicked retailers who sell popular titles at affordable prices.” [Jeff Jacoby, Boston Globe] More: Mark Perry.
Related: antitrust laws mostly “used today by one group of competitors to try to hamstring another competitor in their business” [Coyote on IBM mainframe investigation]
Ride the Ducks says it has been inviting customers to toot on kazoos for a decade as part of its water-land tours in various cities. Now it is suing competitor Bay Quackers, which pioneered the duck tour concept in San Francisco (and was more recently joined there as a competitor by Ride the Ducks) for infringing its “sound mark”, an “auditory equivalent of a trademark”. [New York Times] [Corrected 2:30 p.m. after reader Kim S. pointed out that I hadn’t correctly conveyed the details of which company operated where and when.]
Sara Lee sues Kraft over its advertising claims regarding the taste of hot dogs.
- Yielding to pressure from state AGs, Craigslist will close “erotic services” section and replace with more highly moderated “adult services”; New York’s Cuomo is furious the site took unilateral action “in the middle of the night” rather than negotiating with him [NY Times, Hartford Courant, office of Connecticut AG (and longtime Overlawyered bete noire) Richard Blumenthal, Citizen Media Law, Above the Law] More: Ambrogi.
- Or they could absorb it and move on: “Bounty sues Brawny in paper towel tilt” [Atlanta Journal-Constitution]
- Was granting patents relating to diagnostic analysis of human genes a mistake? Should courts undo it? Via constitutional law? Three different questions there [Ars Technica, Doc Gurley/San Francisco Chronicle]
- Canadian Human Rights Commission wants new ban on discrimination based on “social condition” (with concomitant penalties for hurtful speech premised on such condition) [Ken at Popehat]
- Luxury-goods makers’ suits against eBay over sale of counterfeits may be petering out [Frankel, American Lawyer]
- Today must be exotic-dancer-litigation day at Overlawyered: Trademark Trial and Appeal Board denies trademark protection for “Cuffs and Collar Mark” of Chippendales male exotic dancers [TTA Blog via Lowering the Bar, Ron Coleman, opinion in PDF]
- Allegations fail to stick: “Judge drops class-action suit on Teflon cookware” [AP/Des Moines Register, WSJ, American Lawyer; earlier here and here]
- Asbestos litigation ramps up against Detroit automakers after bankruptcy of many earlier defendants [five years ago on Overlawyered; up-to-the-minute report from Kirk Hartley]
- Beck and Herrmann fisk a NEJM anti-preemption editorial. [Beck/Herrmann; NEJM]
- Lessons of the Grasso case. [Hodak]
- You think BigLaw has it bad? Plaintiffs’ attorney who invented the benefit-of-the-bargain theory for pharmaceutical class actions where no one has suffered any cognizable injury, has made his firm tens of millions, but still hasn’t made partner. “Zigler said he never meets most of the people he represents in these high-profile cases.” [St.L. Post-Dispatch; related analysis from Beck/Herrmann]
- Speaking of harmless lawsuits, “an atrocity in Arkansas,” as Arkansas Supreme Court ignores basic principles of due process and civil procedure to certify an extortionate pre-CAFA class action from MIller County. [Hmm, that’s Beck/Herrmann again; General Motors v. Bryant; related from Greve]
- Speedo competitor: unfair competition to say your innovative swimsuit has an advantage just because 38 out of the last 42 world records (as of June 30) were broken in the suit. [Am Law Daily]
- Background on bogus shower curtain scare story (earlier). [NYT; related AEI event]
- EMTALA-orama: don’t discuss payment in the emergency room if you don’t want to get sued. [ER Stories]
I’ve previously criticized the unrealistic notions judges have of the expense of litigation. (For example: Budget Rent A Car (7th Cir. 2005).) As I said, “[T]he mistake of thinking that legal practice is so frictionless is what encourages so many judges to deny motions to dismiss and deny motions for summary judgment and fail to restrain discovery.” The Spalding Labs v. ARBICO case, No. CV 06-1157 ODW (SHx), 2008 WL 2227501 (C.D. Cal., May 29, 2008) (via Tushnet) provides another example.
Antitrust law trips up pillar-of-counterculture-journalism Village Voice Media, cont’d: “San Francisco Superior Court Judge Marla Miller raised the amount the Weekly [SF Weekly] must pay in damages to the Bay Guardian — from $6.3 million to $15.9 million — for undercutting its rival with below-cost ads.” (Meredith May, “Judge raises damages in case against SF Weekly”, San Francisco Chronicle, May 21; earlier; sample SF Weekly business-bashing piece, channeling plaintiff’s lawyers’ contentions in Parmalat case). “Predatory pricing — selling ads below cost with the goal of putting your competition out of business — is typically something alt weeklies cover, not something they get caught and fined for.” (Josh Feit, TheStranger.com (which competes with VVM’s Seattle Weekly), Mar. 5).
- UK: Paramedic twists ankle on steps responding to emergency call, plans to sue elderly couple [Daily Mail]
- Critics say litigiousness is part of the business plan for rental outfit Leasecomm, which has sued its customers more than 92,000 times [Boston Globe, Daily News Transcript]
- Great big predators of the alternative press? Jury awards $15 million against SF Weekly to its main competitor, Bay Guardian [SF Chronicle]
- Tacoma public schools sued after mentally ill student brings gun to school and kills classmate [KOMO]
- How the parties traded positions with each other on trade [Gordon, Commentary]
- Now Canada has its own “human rights” complaint against plastic surgeon who declines to undertake transgender-related surgery [Steyn, Macleans; earlier Catholic hospital case from California]
- Florida Supreme Court hears appeal of Joe Anderson $18 million “false light” defamation verdict against Gannett’s Pensacola News-Journal [WSJ law blog; earlier]
- Ottawa lawyer Richard Warman keeps suing bloggers and dragging websites before those Canadian hate-speech tribunals, so no criticizing him please [Levant, Five Feet of Fury (& more), Steyn]
- Discontent continues over judges’ standardless discretion in granting alimony awards [NLJ]
- Death of widow Alice Lawrence isn’t expected to end her litigation with law firm Graubard Miller over contingency fee [NYLJ; earlier]
- Labor arbitrator tells Florida school to rehire employee who reported to work with cocaine in his system [six years ago on Overlawyered]
U. S District Court Judge Robert Matsch recently got so infuriated by the conduct of McDermott, Will and Emery attorneys Terrance McMahon and Vera Elson that he overturned a jury’s $51 million verdict, then ordered the lawyers to pay the fees and costs of the opposing lawyers, a sum that could total several million dollars. (Denver Post, Feb. 25)
From the decision (Medtronic Navigation, Inc. v. BrainLAB Medizinische, 2008 WL 410413):
In essence, the response from the plaintiff and MWE, through new counsel, is that the Court had the obligation to stop any trial conduct that stepped over the line of zealous advocacy. In short, they argue that they should not be held responsible for what they were able to get away with during the trial presentation. The adamant denial that there was any abuse of advocacy in this case is in disregard of what this Court has already concluded and displays the same arrogance that has colored this case almost from its inception. Throughout these proceedings Medtronic and the MWE lawyers have demonstrated that when they are faced with adverse court rulings, they proceed undeterred, with only superficial observance of the court’s determinations. Such conduct supports the conclusion that after the Markman rulings, Medtronic’s primary objective in pursuing this litigation was to put economic pressure on its competitor in the market.
Medtronic’s counsel proceeded cavalierly, with reckless indifference to the merits of Medtronic’s infringement claims. The continued prosecution of a claim after its lack of merit has become apparent warrants sanctions under § 1927. At trial, MWE’s conduct was in disregard for the duty of candor, reflecting an attitude of “what can I get away with?” Throughout the trial, the MWE lawyers artfully avoided the limitations of the patent claims and created an illusion of infringement. They did so with full awareness that their case was without merit.