Last week, Judge Liman granted in part plaintiff ChromaDex’s motion for summary judgment on part of defendant Elysium’s counterclaim for false advertising under the Lanham Act. The case arose from a dispute between the two competitors over the sale of nutritional products claiming to improve cellular health and cellular aging. Elysium argued that statements made by a blogger regarding ChromaDex’s product were false, and should be attributable to ChromaDex under the Lanham Act, because the blogger was a ChromaDex shareholder who was paid by ChromaDex for referring customers. ChromaDex argued that it was not liable for statements that appeared on a third-party blog, regardless of whether they were false, material, or caused injury, because the statements did not constitute “advertising or promotion,” as required under the Lanham Act.

Judge Liman agreed with ChromaDex, finding that Elysium had not presented evidence that ChromaDex had an agency relationship with Shelly Albaum, the blogger. Furthermore, Judge Liman found that Elysium had not presented evidence that ChromaDex controlled the content of Albaum’s blog. Elysium cited to an email between a ChromaDex executive (Jaksch) and Albaum regarding whether the executive wanted Albaum to post a certain article. Judge Liman concluded:
Continue Reading Judge Liman: Blogger-Shareholder Touting a Company’s Product Was Not Its Agent for Purposes of Lanham Act

In a potentially useful discovery order issued today, Judge Liman rejected defendants’ attempt to obtain a document-by-document privilege log from a plaintiff who had submitted a categorical privilege log. The order acknowledges the propriety of using a categorical privilege log as an “efficient means of providing information regarding claims of privilege,” even where third parties are involved in the privileged communications:
Continue Reading Judge Liman: Categorical Privilege Log Appropriate Even Where Third Parties Involved in Privileged Communications

Last week, the maker of White Claw filed a new complaint for trade infringement against the maker of “MIXX,” a forthcoming canned cocktail that will sold in some of the same stores as “MXD,” a line of canned cocktails made by the maker of White Claw.  According to the complaint, consumer confusion is particularly likely given the similar names for these products:
Continue Reading Maker of White Claw Files Trade Infringement Claim to Stop Competitor’s New Canned Cocktail

Last week, Judge Liman allowed certain claims against Peloton to proceed based on allegations that Peloton lured customers with promises of an “ever-growing” library of classes that had in reality been cut in half in the preceding months.

Peloton argued that its Terms of Service shielded it from the claim, but Judge Liman disagreed:

Defendant argues that because Plaintiffs agreed to these terms when they subscribed to Peloton’s service, Defendant cannot be held liable for deceptive practices for conduct authorized by the terms. According to Defendant, even if the “ever-growing” statement was deceptive, the Terms of Service overcome the deception because Peloton reserved the right to remove content at any time. Nor can Defendant be held liable for its failure to disclose the purportedly inevitable class removals, for the same reason. Defendant points to a number of cases that it argues support the proposition that New York courts dismiss claims under the NYGBL where the defendant expressly disclosed its right to take the actions of which a plaintiff complains.

Defendant’s arguments are based on a non-sequitur. Peloton’s Terms of Service may have protected it from a breach of contract or similar claim for the removal of a particular class or group of classes. However, the Terms of Service do not relieve Peloton from a deceptive marketing claim based on the allegation that Peloton advertised its library as ever-growing while knowing that it would be diminishing or shrinking in size.


Continue Reading Judge Liman Refuses to Dismiss Complaint Accusing Peloton of Deceptive Advertising for Touting “Ever Growing” Library of Classes