
• Iowa judge says a sheriff denied the applications of a father and son for concealed weapons permits in retaliation for their political activism. "This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views." Dorr v. Weber
• 5th Circuit rules that a school district violated the religious freedom of a Native American boy by requiring him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. The boy "has a sincere religious belief in wearing his hair uncut and in plain view." A.A. v. Needville Ind. Sch. Dist.
• 11th Circuit denies a challenge to an ordinance restricting handouts of food to the homeless in Orlando parks. "[W]e are unpersuaded that the conduct of simply feeding people ... is expressive for First Amendment purposes." First Vagabonds Church v. City of Orlando
• Boston judge slashes a jury award in an illegal music downloading case from $675,000 to $67,500. "The award in this case ... lacks any rational foundation and smacks of arbitrariness." Sony v. Tenenbaum
• Iowa Supreme Court suspends a voyeuristic attorney indefinitely for peeping on women through windows. "[W]e cannot overlook the serious, egregious, and persistent nature of [Mark] Templeton’s misconduct and the effect it had on his victims." Disciplinary Board v. Templeton
• Pennsylvania judge strikes down the state's blasphemy law in a case brought by a film producer who wanted to name his company "I Choose Hell Productions." "'Choosing hell' may be an irreverent choice for a corporate name, but under the Constitution, this fact alone cannot be the basis for its suppression from the public debate." Kalman v. Cortes
• Cancer patient sues Wal-Mart for firing him after discovering that he uses medical marijuana for pain relief. "[N]o corporation doing business in Michigan should be permitted to flout state laws protecting patients who use medical marihuana in accordance with state law." Casias v. Wal-Mart Stores
• 11th Circuit rules that the operator of an Internet porn dorm was engaged in illegally operating a business in a residential zone. "Business objectives are the sole reason individuals are paid to live and engage in sexual activities at the 27th Street residence." Flava Works v. City of Miami

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Lawyers' Cereal Litigation Suffers Crunching Blow |
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Froot Loops, Berry Berry Kix and Fruity Cheerios have all recently been the targets of false advertising lawsuits filed by three lawyers. But a judge may have ended this outbreak of cereal litigation by throwing out a case involving Cap'n Crunch's Crunch Berries.
The litigation appears to have been inspired in part by a January 2006 study in which the Prevention Institute, an Oakland, Calif., nonprofit, found that “nearly two-thirds of highly-advertised children’s food products with images or references to fruit on the package contained little or no fruit and were high in added sweeteners.”
Working as a team, attorneys Hal Hewell of San Diego, Cynthia C. Lebow of Santa Monica, and Howard Rubenstein of Aspen, Colo., have filed deceptive advertising suits involving 12 of the 25 products listed in the study as having minimal or no fruit.
Several of the cases sought changes in the labeling of products -– under California law, the defendants could be liable for statutory damages if they did not make the changes within 30 days.
But the fruit suits have not been fruitful (see ), the latest bust being the case of Janine Sugawara, a client of Hewell and Rubenstein, against PepsiCo, the manufacturer of Crunch Berries. The cereal's name and packaging, she alleged in a $5 million class action, “were likely to mislead and deceive a 'reasonable consumer'” because it actually “contains no actual berries of any kind.”
Granting PepsiCo's motion to dismiss with prejudice, U.S. District Judge Morrison C. England noted that “This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a 'crunchberry.'”
While the brightly-colored cereal balls on the box resemble berries, he said in a May 20 order, the box clearly states that it contains “sweetened corn & oat cereal” and “a reasonable consumer would not be deceived into believing that the Product in the instant case contained a fruit that does not exist.”
Other judges reached similar conclusions in dismissing cases against the makers of Froot Loops, Berry Berry Kix, Trix Cereal and Fruity Cheerios. “No reasonable consumer would view the trademark 'Froot Loops' name as describing the ingredients of the cereal,” U.S. District Judge Audrey B. Collins said in a September 2007 minute order.
But England's decision was particularly forceful, concluding that
it is simply impossible for Plaintiff to file an amended complaint stating a claim based upon these facts. The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense. The Court has no intention of allowing that to happen.
Plaintiff's counsel has filed a motion for reconsideration in which he insists it is plausible that the Crunch Berries packaging would be deceptive.
“Common sense and personal responsibility do not factor into the analysis, and for good reason,” Hewell says. “Common sense is not necessarily common, and both concepts are variable over time, and among individuals and groups. What passes for common sense to the 'exceptionally acute and sophisticated' reasonable consumer might not be readily apparent to reasonable consumer who is less so.”
In April 2008, an appeals court reinstated a Hewell client's case against Gerber Products that alleged its marketing of Fruit Juice Snacks for toddlers was deceptive. England said Sugawara's case is distinguishable in part because the Crunch Berries packaging does not contain "any images of actual fruit."
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UPDATES
After Judge England denied the motion for reconsideration, Sugawara filed an appeal July 6, 2009.
Sugawara's appeal was dismissed April 19, 2010 after she missed the deadline for filing her opening brief.
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By Matthew Heller 6/7/09
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Sex Harassment Claims Hit Actor Affleck, 'Bones' Star
A producer of a film about actor Joaquin Phoenix, an extra on the set of the TV show “Bones,” an assistant property master, and a makeup artist are among the plaintiffs in a recent epidemic of lurid Hollywood lawsuits.
Read more...
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Jury Goes 'Wild' in Woman's Privacy Case Over Video
A Missouri jury has gone wild in a case of involuntary nudity, finding that a woman consented to appearing topless in a “Girls Gone Wild” video by playing to the camera before another person pulled her top down.
Read more...
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Actress Facing $750K Award to Therapist
Soap opera star Hunter Tylo may have to pay more than $750,000 in damages and attorney fees to a psychotherapist whom she sued more than four years ago for negligent treatment of her children, On Point has learned.
Read more...
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Reporter Sues Hotels Over Peephole Videos
In an unusual premises liability case, ESPN reporter Erin Andrews has sued the operators of three hotels for allowing a stalker to surreptitiously videotape her naked through peepholes in the doors to her rooms.
Read more...
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Students Challenge Rubber Fetus Ban
The suspensions of seven pro-life students at two Roswell, N.M., high schools for distributing rubber fetuses have given birth to a lawsuit that takes the First Amendment protections for student speech into uncharted territory.
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Distress Claim Barred in Hotel 'Ménâge à Trois' Case
A former employee of a luxury Miami Beach hotel who says her billionaire boss invited her to join him in a “ménâge à trois” cannot sue him for infliction of emotional distress, a judge has ruled, finding his alleged behavior, while “obnoxious,” was not “objectively outrageous.”
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Chuck E. Cheese Settles Molesting Mascot Suit
A Missouri woman who claimed a Chuck E. Cheese mascot groped her breast has settled her lawsuit against the operator of the restaurant chain, On Point has learned.
Read more...
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Stovell v. James Subject: LeBron's paternity Document: Complaint
U.S. v. Arizona Subject: Illegal immigration Document: Complaint
Rosenberg v. Google Subject: Negligent navigation Document: Complaint
Smith v. Hooters Subject: Weight discrimination Document: Complaint
City of Ontario v. Quon Subject: Text-message privacy Document: Opinion
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Rosenberg v. Musical Arts Assn. Court: Cuyahoga County (Ohio) Common Pleas Subject: Defamation, age bias
Mecozzi v. City of Los Angeles Court: L.A. Superior Subject: Police brutality Verdict: $1.7 million
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Jose Padilla v. John Yoo Date: 6/14/10 Court: 9th Circuit Hearing: Oral arguments in human rights case.
Perry v. Schwarzenegger Date: 6/16/10 Court: USDC, N. Calif. Hearing: Closing arguments in trial of challenge to gay marriage ban.
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