Lohan v. E-Trade
Actress Lindsay Lohan alleges a TV ad featuring a "milkaholic" baby named Lindsay used her name and personality for advertising purposes without her consent.
Irvin v. Mustafa
NFL Hall of Famer Michael Irvin files a countersuit against a woman who accused him of rape, alleging she is a "morally-bankrupt individual" who is trying to ruin his career.
Robbins v. Lower Merion SD
High-school student accuses a school
district of spying on him and other students
by remotely activating webcams contained in school-supplied laptops.
Peterson v. Grisham
10th Circuit finds John Grisham did not defame three Oklahoma law enforcement officials in a book about the wrongful convictions of two men for a rape-murder.
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• Owners of Who Dat?, Inc. sue the NFL and the New Orleans Saints for trademark infringement, seeking to protect the mark that "has become one of the most recognizable in all of America and quickly became well-known around the world."
Who Dat?, Inc. v. NFL Properties

• Army bomb disposal expert sues the makers of "The Hurt Locker" for plagiarizing his life story. The film is "nothing more than the exploitation of a real life honorable, courageous, and long serving member of our country’s armed forces, by greedy multi-billion dollar 'entertainment' corporations."
Sarver v. The Hurt Locker

• Former patient sues the Cincinnati hospital where he was sexually assaulted by a transgender nurse. The nurse's "employment while masquerading as a member of the female gender in a hospital environment involved an unreasonable risk of harm to others."
Evans v. University of Cincinnati

• Federal judge enjoins the City of Phoenix from enforcing a noise ordinance against "sound generated in the course of religious expression," finding the right of churches to ring bells outweighs "the City's interest in preserving the peace and tranquility of its neighborhoods."
St. Mark Roman Catholic Parish v. City of Phoenix

• 5th Circuit says a Texas city's junked vehicle ordinance applies to a cactus planter made out of wrecked Oldsmobile 88. "Irrespective of the intentions of its creators ... the car-planter is a utilitarian device, an advertisement, and ultimately a 'junked vehicle.'"
Kleinman v. City of San Marcos

• Oklahoma City bomber Terry Nichols notifies a federal judge that he has gone on hunger strike, saying he is "prepared to die if necessary because he is done allowing his body to be defiled by [ ] refined and dead foods."
Nichols v. Federal Bureau of Prisons

• Texas judge finds the makers of a film about Rin Tin Tin did not infringe on the trademarks of a breeder of German Shepherds. "Defendants['] title 'Finding Rin Tin Tin: The Adventure Continues" is a fair use of the term 'Rin Tin Tin.'"
Rin Tin Tin, Inc. v. First Look Studios

• Illinois appeals court says the contact sports exception to negligence liability does not apply to the case of an athletic trainer who was struck in the eye by a hockey puck while refilling water bottles. Michael Weisberg "suffered injuries as a result of alleged conduct that was not inherent to the sport of hockey."
Weisberg v. Chicago Steel




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Lawyers' Cereal Litigation Suffers Crunching Blow Print

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.

Hal Hewell

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 table), 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."

UPDATE

  • After Judge England denied the motion for reconsideration, Sugawara filed an appeal July 6, 2009.



  • By Matthew Heller
    6/7/09


     
    rc_insidestories
    • Perfume Allergy Case Settles for $100,000

      A Detroit city planner with an allergy to perfume is savoring the sweet smell of legal success after the city agreed to pay her $100,000 and be more sensitive to the chemically sensitive.
      Read more...
    • Teen's Suit Puts Mug-Shot Publisher Against the Wall

      A new publication in Lincoln, Neb., milks mug shots for humor. But a teenager whose arrest photo appeared in Cuffed doesn't see the funny side of it and has sued the publisher for misappropriating his image.
      Read more...
    • BA Settles 'Reckless' Baggage Handling Suit

      Limiting its liability to a group of only 13 airline passengers, British Airways (NYSE: BAY) has settled a first-of-its kind lawsuit that accused the airline of being “inexcusably reckless” in its handling of passengers' baggage.
      Read more...
    • Judge Says "Gay" Still Defamatory in Texas

      What one court has called “a veritable sea change in social attitudes about homosexuality” has evidently not reached Texas where a judge ruled that an airport security guard can sue a radio show host for calling him “gay” on the air.
      Read more...
    • Mom Says Hospital Gave Her Wrong
      Baby to Nurse


      Because of a hospital's error, Jennifer Spiegel became an involuntary wet nurse to another woman's newborn son. Now she is suing the hospital for its malpractice in providing her with the wrong baby to breastfeed.
      Read more...
    • Case Over MySpace Page Chills Student Speech

      Several recent court rulings have been protective of off-campus student speech -– with the exception of a very shaky decision that a dissenting judge said “vests school officials with dangerously overbroad censorship discretion.”
      Read more...
    • Motorist Who Flipped off Cop Gets $50K From City

      The citation of a motorist for displaying his middle finger to a police officer -– what a judge described as a “somewhat innocuous” gesture -- turned out to be quite expensive for the City of Pittsburgh as it agreed to pay $50,000 to the bird-flipper.
      Read more...
    RC_OnFile

    Vance v. Rumsfeld
    Subject: Detainee abuse
    Document: Opinion

    Churchill v. Univ. of Colorado
    Subject: Academic freedom
    Document: ACLU amicus brief

    KBR/Halliburton v. Jones
    Subject: Sexual assault
    Document: Petition for review

    Olson v. Baron Cohen
    Subject: Verbal assault
    Document: Statement of decision

    North Face Apparel v. The South Butt
    Subject: Trademark infringement
    Document: Answer to complaint

    more

    RC_OnTrial

    Spears v. Allergan, Inc.
    Court: Orange County (Calif.) Superior
    Subject: Botox death
    Verdict: Defense

    Patterson v. Hudson Area Schools
    Court: USDC, E. Mich.
    Subject: Student harassment

    more


    RC_OnTheDocket

    McClain v. Pfizer, Inc.
    Date: 3/2/10
    Court: USDC, Conn.
    Hearing: Jury trial in case over unsafe lab conditions.

    Sherman v. McDonald's Corp.
    Date: 3/23/10
    Court: Washington County (Ark.) Circuit
    Hearing: Jury trial in case over nude photos.

    more