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									 ABA Consumer Protection
    May 2008 Update

Davis Wright Tremaine LLP
      Alan Middleton
       Maurita Coley
      Ronnie London
FTC Update: New Cases

 Operation Tele-PHONEY
   Over 180 cases linked
   13 new FTC cases – all actions against telemarketers
   Typical claims:
       Sending unordered household goods to consumers
       Offering phony tax rebates or prescription drug plans
       Using fraudulent sweepstakes pitches
       Offering free gifts
       Promising that for an advance fee, consumers would be
       “guaranteed” to receive loans or credit cards that never
       materialized or were useless
       Using consumers’ bank account information to bill them without
       their authorization
       Harassing consumers to pay for unordered goods
       Violating rules of the DNC Registry
FTC Update: New Cases (cont’d)

 Operation Tele-PHONEY (cont’d)
   Med Provisions: Discounted Canadian prescription drugs
   (N.D. Ohio)
   Union Consumer Benefits: Canadian marketing of worthless
   medical discount packages (N.D. Illinois)
   Steven Breitling/ICS Financial: Promise of non-existent
   “guaranteed” loans for fee (D. Oklahoma)
   American Financial Card: Promise of credit card for
   advance fee; subsequent delivery of catalog card (M.D.
   Integrity Financial Enters.: Same (M.D. Florida)
   Financial Advisors & Assocs.: Same (M.D. Florida)
   Handicapped & Disabled Workshops: Targeting elderly for
   unwanted household products at exhorbitant prices,
   misrepresenting charitable nature (D. Ariz.)
FTC Update: New Cases (cont’d)

 Operation Tele-PHONEY (cont’d)
   Helping Hands of Hope: Same (D. Ariz.)
   U.S. Magazine Servs.: Misrepresenting cost of
   subscriptions (D. Mont.)
   Publishers Business Servs.: Subscription sales
   masquerading as survey (D. Nev.)
   NHS Systems: False promise of grants, tax refunds,
   rebates (E.D. Pa.)
   CityWest Advantage dba Unified Servs.: “Internet
   shopping spree” scam to obtain banking info (D. Nev.)
   Direct Connection Consulting: Promises of free gift
   cards, gas cards, or free resort vacations to obtain
   banking info (N.D. Ga.)
FTC Update: New Cases (cont’d)

 Home Buyers Consulting Network, Inc.
    S.D.N.Y. (May 22)
    Home-buying consulting business offered credit repair and home-
    buying consulting services
    FTC alleged HBCN illegally charged advance fee for credit repair and
    falsely claimed t could remove negative but true information from
    consumers’ credit reports
    Typically required advance payment of at least $99 for services; also
    required additional advance payments from $19 per week to $49 per
    month, and promised to refund all but $99 if promised results not
    Violation of Credit Repair Organizations Act (CROA) and FTC Act
    Proposed settlement bars defendants from further CROA violations
    and further misrepresentations; also bars them from selling, renting, or
    otherwise disclosing (or benefiting from) personal information about
    anyone who was a client
    $573,000 civil penalty and $40,000 monetary judgment (suspended)
FTC Update: Settlements

 Express Consolidation
   S.D. Florida (Dec. 2006)
   Debt management services company tied to Florida
   attorney Randall Leshin and telemarketer Consumer
   Credit Consolidation
   Alleged misrepresentation regarding nonprofit status,
   costs and benefits of service, and TSR
   Court orders bar false representations to sell debt
   management services and future violations DNC
   Registry; defendants to pay more than $2 million. Also
   require Express Consolidation to transfer some
   customers to another debt management services
   provider and that customers be given such an
FTC Update: Settlements (cont’d)

 Scorpio Telemarketer
    May 2006 complaint
    Sold mortgage loans, refinancing, and other products and
    services to U.S. consumers via outbound telemarketing;
    called numbers on the Do Not Call Registry; failed to
    transmit its telephone number and name to consumers’
    caller identification service; failed to pay the fee required to
    access the Registry
    Settlement bars defendants from violating TSR and DNC
    provisions arising from a telemarketing scheme designed to
    sell mortgage loans, refinancing services, and other products
    to U.S. consumers; judgment for $530,000 in damages
    Case was first brought by the FTC alleging transmission of
    phony caller ID information or none at all
FTC Update: Settlements (cont’d)

 Action Research Group
    M.D. Florida (Feb. 2007)
    Pretexting case – use of false pretenses to
    obtain consumers’ confidential information
    FTC alleged these practices were unfair and
    deceptive in violation of federal law, and could
    endanger consumers’ safety
    Defendants barred from obtaining consumers’
    telephone records without their consent;
    judgment totaling more than $600,000 –
    estimated ill-gotten gain
FTC Update: Settlements (cont’d)

 Merchant Processing, Inc.
    D. Oregon (April 2007)
    Marketers of debit and credit card processing services
    False promise of savings; false promise to buy out
    equipment leases; failure to disclose fees and other relevant
    Settlement prohibits defendants from misrepresenting
    savings; that existing leases or contracts will be bought out;
    or any other material fact
    Defendants must disclose all material facts, such as the
    amounts of discount rates, processing surcharges, and
    cancellation fees
    Businesses in receivership
    Judgments of $26 million, suspended on completion of
    certain events (property transfers, etc.)
FTC Update: Settlements (cont’d)

 ATM Global Systems
    E.D. Illinois (April 2008)
    Defendants used commission-paid affiliates who sent
    spam to drive users to defendants’ adult Web sites,
    including Internet dating service that collects payment
    for memberships; affiliates sent spam with lurid subject
    lines that contains hyperlinks to defendants’ Web sites
    E-mails contained false header info making it difficult to
    determine identity of sender; failed to provide clear and
    conspicuous opt-out notification; failed to include valid
    physical postal address of the sender
    Violation of CAN-SPAM Act
    Order bars future violations of CAN-SPAM Act,
    requires effective monitoring program, and imposes a
    $75,000 civil penalty (in lieu of $442,900 judgment)
FTC Update: Judgments

 Pacific Liberty
   N.D. Illinois (Sept. 2005)
   Canadian individuals/entities
   Complaint charged that defendants used outbound
   telemarketing to call U.S. consumers; for advance of
   $319, which was electronically debited from the
   consumers’ bank accounts, defendants promised to
   deliver credit cards along with free gifts; no consumers
   who paid the money received either credit cards or
   “complimentary” gifts
   FTC motion for summary judgment not opposed
   Final order and judgment barring defendants from
   violating FTC Act and (TSR) and requiring payment of
   approximately $5 million
FTC Update: Judgments (cont’d)

 Datacom Marketing, Inc.
    N.D. Illinois (2006)
    Cross-border telemarketing fraud; scheme duped American
    businesses into paying for business directories and listings
    they did not order
    Default judgment against non-settling defendants
    Judgment bars defendants from misrepresenting that
    consumers have preexisting business relationship; have
    agreed to purchase business directories or listings; or owe
    money for business directories or listings in directories
    Also barred from violating TSR and from misrepresenting, or
    failing to disclose, any fact material to a consumer’s decision
    to purchase; and from failing to disclose the seller’s identity,
    the call’s purpose is to sell goods or services, and the nature
    of the goods or services
    $49,235,402 judgment
FTC Update: Final Rules
 New CAN-SPAM Rules
    FTC opted not to shorten opt-out time from 10 to 3 days
    The definition of “sender” was modified to make provide flexibility re
    CAN-SPAM compliance for emails advertising/promoting multiple
    parties’ goods/services/websites
    An e-mail recipient cannot be required to pay a fee, provide
    information other than his or her e-mail address and opt-out
    preferences, or take any steps other than sending a reply e-mail
    message or visiting a single Internet Web page to opt out of
    receiving future e-mail from a sender
    A “sender” of commercial e-mail can include an accurately-
    registered post office box or private mailbox established under
    U.S. Postal Service regulations to satisfy the Act’s requirement that
    a commercial e-mail display a “valid physical postal address”
    A definition of the term “person” was added to clarify that CAN-
    SPAM’s obligations are not limited to natural persons
FTC Update: Final Rules (cont’d)

 New CAN-SPAM Rules (cont’d)
   Statement of Basis and Purpose addresses several topics
   not subject of any new rule provisions
       CAN-SPAM’s definition of “transactional or relationship
       Clarification re newsletter and employee discount emails
       Forward-to-a-“friend” e-mail marketing: as general
       matter, if seller offers something of value in exchange for
       forwarding commercial message, seller must comply with
       the Act’s requirements
       FTC’s decision not to designate additional “aggravated
       violations” under the Act
FTC Update: Proposed Rules

 Risk-Based Pricing
    Implementation of FACTA § 311 regarding risk-based pricing
    FTC and Federal Reserve propose regulations requiring a creditor to
    provide consumers with a risk-based pricing notice when, based in
    whole or in part on the consumer’s credit report, the creditor offers or
    provides credit to the consumer on terms less favorable than the terms
    it offers or provides to other consumers
 Market Manipulation in the Petroleum Industry
    FTC announced approval of Advance Notice of Proposed Rulemaking
    (ANPR) to solicit public comments on appropriate way to interpret and
    enforce provisions of Energy Independence and Security Act of 2007
    (EISA) related to preventing market manipulation in the petroleum
    To determine whether, and in what ways, FTC should develop formal
    rules defining and prohibiting market manipulation in the petroleum
    Rulemaking process to be completed by year-end
FTC Update: Testimony, Studies, Town
 Video Games
   Released results of undercover shopper study
   Improvement from 2006 survey
   FTC warns nevertheless that “retailers need to re-
   double their efforts in this area”
 Mobile Marketplace Town Hall
   Use of text messaging and related messaging services
   as instruments of commerce; consumers’ ability to
   control mobile applications; adaptation of advertising to
   mobile devices, including the challenges presented by
   small screen disclosures; mobile commerce practices
   targeting children and teens; industry best practices in
   preventing fraud, disclosing costs, and resolving billing
   disputes; evolving security threats and solutions; and
   next-generation products and services
FTC Update: Testimony, Studies, Town
Halls (cont’d)
 Contactless Payment Town Hall
   Contactless payment devices use radio frequency
   identification (“RFID”) technology to allow consumers
   to make low dollar-value purchases by holding an
   RFID-enabled device in proximity to a reader
   Overview of various contactless payment devices
   Consumers’ understanding of contactless payment
   capabilities and potential risks
   Security and privacy threats and proposed solutions
   Emerging practices and technologies that may shape
   the contactless payment marketplace
FTC Update: Testimony, Studies, Town
Halls (cont’d)
 Consumer Information and the Mortgage Market
   Highlight and assess role of consumer information in
   the current mortgage crisis
   Panelists discuss causes and effects of mortgage
   market product developments, role of consumer
   information in mortgage choice and market outcomes,
   and relationship between consumer information policy
   and the current mortgage crisis
   Also discuss strategies for ensuring that new consumer
   protection regulations, especially mandatory
   information disclosures, will provide the greatest
   possible long-run net benefit to consumers
FTC Update: Amicus Briefs

 Pacific Bell Telephone Company v. linkLine
    Plaintiff alleged that defendant violated Section 2 of
    Sherman Act when it used its alleged monopoly power in the
    wholesale market for DSL service to “squeeze” its
    downstream competitors in the retail DSL market by
    charging wholesale prices equal to, and at times higher than,
    its retail prices
    District court and Ninth Circuit held that “price-squeeze”
    allegations in this case were sufficient to make out claim
    under Section 2
    DOJ filed amicus brief urging Court to rule “price-squeeze”
    claims insufficient
    FTC refuses to join on grounds that issue is not ripe,
    insufficient record to overturn 60 years of jurisprudence
Multistate AG Update: Facebook
 On May 8, 2008, AGs of 49 states and D.C. announced that
 Facebook agreed to changes to better protect children from
 predators and inappropriate content on the social networking
 Facebook agreed to participate in a task force on exploring and
 developing age and identity verification software; similar to one
 that MySpace reached in January with 49 states and D.C.
 Changes include providing automatic warning messages when a
 child is in danger of giving personal information to an unknown
 adult; restricting the ability of users to change their listed ages;
 acting more aggressively to remove inappropriate content and
 groups from the site; requiring third party vendors to adhere to
 Facebook’s safety and privacy guidelines
 Agreed to regularly sever links to pornographic websites; to
 remove groups reported for incest, pedophilia, cyber bullying
 and other violations of the site’s terms of services, and expel
 from the site individual violators of those terms
Multistate AG Update: Merck Settlement

 On May 20, 2008, the AGs of 30 states and D.C. ended a three-
 year investigation into allegedly deceptive marketing of Merck’s
 pain reliever Vioxx; Merck agreed to pay $58 million in
 restitution to states; largest multi-state settlement ever against a
 pharmaceutical company
 Allegations that Merck employed deceptive advertising for Vioxx
 and failed to properly disclose increased risk of heart attack;
 settlement prohibits Merck from misleading consumers in
 advertising any Merck product and requires full disclosure of all
 known risks
 Judgment requires Merck to submit all “direct to consumer”
 television drug advertisements for any new pain medications to
 the Food and Drug Administration (FDA), wait for FDA approval,
 and comply with FDA comments
Multistate AG Update: Express Scripts
 May 27: 29 states and D.C. announced settlement
 with Express Scripts Inc., one of nation’s largest
 pharmacy benefits management companies
 Settlement resolves allegations that ES acted
 improperly by encouraging physicians to switch
 patients over to different prescription drugs, claiming
 patients or their health plans would save money
 ES to pay $9.3 million to the participating states and
 to reimburse up to $200,000 to patients who incurred
 expenses related to certain switches between
 cholesterol-controlling drugs
State AG Update: Illinois
Legislation to Aid Struggling Homeowners
  May 8 – Illinois AG and legislators initiated new
  legislation to assist struggling homeowners to help
  save their homes
  Homeowner’s Rights Act (HB 838) would if passed
  amend the Illinois Mortgage Foreclosure Law
Action Against Cocaine-Themed Advertisements
  May 2 – Illinois AG demanded that Las Vegas
  company discontinue its cocaine-themed marketing
  and sale of energy drink mix that glorifies drug culture
  and has raised serious health concerns due to its
  high caffeine content
  Drink is called “Blow”
State AG Update: Indiana
Action Against Deceptive Oil Sales
  May 28 – Hukill Oil Company, Inc., doing business as
  “Mr. Lubie,” agreed to pay refunds to customers who
  paid for specific, brand-name oil, but received a
  different, less expensive oil
Action Against Publisher
  May 8 – Indiana AG filed a lawsuit against book
  publisher Airleaf, LLC fka Bookman Marketing, LLC,
  and its owner
  Alleges violation of Indiana’s Deceptive Consumer
  Sales Act for taking money without providing
  promised services in return; suit seeks consumer
  restitution for at least 120 customers
State AG Update: Iowa, Kansas
IOWA – Direct-Mail Scam
  May 16 – Iowa AG filed consumer fraud lawsuit
  alleging that Pennsylvania direct-mail operator
  deceived mostly older Iowans into thinking they had
  won cash prizes worth hundreds of thousands of
  dollars – and into sending $20 “administration” or
  “registration” fees to collect their purported prize
KANSAS – Targeting Elder Abuse
  AG announced plans to target elder abuse, especially
  financial fraud, which is the most common form of
  reported elder abuse in Kansas
State AG Update: Maine
Landlord to Stop Automatic Early Termination Fees
  May 16: Port Property Management, which manages
  over 700 residential apartments in Maine, agreed to a
  Consent Decree barring it from automatically
  charging Early Termination Fee; refunds ordered
  where company re-rented the apartment
AG Settles in Case of Deceptive Advertising
  May 6: A Consent Decree reached with Level 10
  Marketing, Inc., and Newcastle Chrysler Dodge Jeep
  of Newcastle Maine; defendants employed unfair and
  deceptive advertisements or practices (such as sales
  “vouchers” which appear to promise “$4,000 Instant
  Savings” when in fact such savings are not realized)
State AG Update: Maryland

Attorney General Settles with Medical Group
  May 19, 2008 - Settlement reached with Germantown
  Primary Care Associates, P.C., a medical practice.
  AG alleged that defendant’s solicitation, billing, and
  collection of a yearly administrative fee violated
  Maryland’s Consumer Protection Act and Consumer
  Debt Collection Act
  State HMO laws and terms of defendant’s contracts
  with health insurers do not allow the collection of
  these types of fees
State AG Update: Massachusetts
Settlement over Misleading Coin and Currency
  May 21 – Settlement with Ohio-based Universal
  Syndications Inc. (UniSyn); suit alleged that the
  defendant violated Massachusetts CPA by running
  misleading advertisements for the sale of sheets of
  uncut currency and uncirculated coins
Preliminary Injunction Upheld Against Subprime Lender
  May 5 – A single justice of Massachusetts Appeals
  Court upheld a preliminary junction against
  California-based Fremont General and Fremont
  Investment and Loan, a subprime lender whose
  allegedly risky loan-selling conduct significantly
  contributed to a foreclosure crisis in Massachusetts
State AG Update: Michigan, New Mexico

MICHIGAN – 12 Charged in Financial Scams & Rip-
Offs Against Elderly Relatives
   May 15 – AG announced that 12 individuals were charged with
   felonies for financially exploiting seniors; another 85 cases
   remain under investigation

NEW MEXICO – Unfair Billing by Qwest and Windstream
  May 16 – AG filed a report and motion before Public Regulation
  Commission, asking commission to open an investigation into
  unfair billing and business practices by Qwest and Windstream
  phone companies; report detailed how small New Mexico
  companies that provide essential Internet services to small
  towns and cities are being forced out of business or are
  struggling to stay alive by monopolistic practices of the two
  largest incumbent local exchange carriers (ILECs) in state
State AG Update: New York

Action Against Dell for False Advertising
 May 27 – Judgment against Dell and its
 affiliate, Dell Financial Services, LP (“DFS”);
 held that Dell and DFS engaged in fraud,
 false advertising, deceptive business
 practices, and abusive debt collection
 practices related to financing and servicing its
State AG Update: Oregon
Action Against US Cellular for False Advertising
  May 23, 2008 – AG settled with wireless provider U.S. Cellular;
  Oregon Department of Justice (DOJ) alleged that U.S. Cellular
  advertisements promised consumers "free" cellular phones
  without properly disclosing necessary terms, including the fact
  that consumers must first subscribe to certain and sometimes
  ancillary services and that consumers would be reimbursed for
  phone purchases through a rebate program
  Consumers also complained to DOJ that cellular phone
  "minutes" were routinely accumulated as users accessed
  neighboring U.S. Cellular cell towers for service, but not
  reported until the following month, misleading consumers into
  believing they had more "minutes" available to them than they
  actually had
State AG Update: Texas

AG Files Suit Against Prepaid Calling Card
 May 23, 2008 – The Texas AG filed the
 state’s first legal enforcement action against a
 prepaid calling card company, claiming Next-
 G Communication, Inc. produced, sold, and
 distributed prepaid calling cards throughout
 Texas but consistently failed to deliver the
 number of minutes it advertises to customers
State AG Update: Washington State
 Washington AG reached a settlement with
 SubscriberBASE Holdings, Inc., regarding the
 defendant’s online promotional offers
 Defendant allegedly engaged in deceptive practices
 in marketing its online promotions
 SubscriberBASE will make refunds to Washington
 State customers who were dissatisfied with
 purchases made from third-party merchants who
 advertised on Company’s websites, plus make a one-
 time civil payment of $55,000 and reimburse the
 State’s attorneys fees
 Washington residents will no longer be eligible to
 participate in any of the Company’s promotional
National Advertising Division Update

 Viroxyn Cold Sore Treatment (and store brand)
    Case No: 4839 (May 5, 2008)
    GlaxoSmithKline Consumer Healthcare challenged Quadex
    (and Triad) Pharmaceuticals ads/packaging for Viroxyn, on:
        Claims relating to speed and completeness with which
        product works
        Comparisons to Glaxo’s Abreva product
        Products status under FDA regs
        Various testimonials and qualitative descriptions
    Held: Quadex and Triad could support a few of the claims,
    but NAD recommended companies modify or discontinue
    several others
National Advertising Division Update
Viroxyn Cold Sore Treatment (cont’d)
   Claims in dispute:
     “One day cold sore treatment”
     “Fast pain relief – 1 day, 1 dose and healing begins”
     “provides rapid relief … and has shown to greatly reduce healing
     “has been proven to shorten the duration of outbreaks from 10 days
     to three or four days”
     “A totally new and effective approach to treating the symptoms of
     cold sores and fever blisters, with one single application for most
     “Destroys the virus”
     “Competes against Abreva”
     “Distributed by over 10,000 dentists across the U.S.”
     “A patented new approach to treating cold sores”
     Similar and other qualitative and other claims in testimonials
National Advertising Division Update
Viroxyn Cold Sore Treatment (cont’d)
   After defending before NAD, some claims changed
     Held, changes to claims (particularly discontinued claims) were
     “necessary and appropriate,” but under precedent that health-
     related “therapeutic benefit” and “relieves pain” claims must be
     supported by competent and reliable scientific evidence, study that
     Viroxyn claims were based on was insufficient
     While supportive of general and unqualified “relief” claims, study
     was not sufficient to support claims that product works in a day, in
     one dose, or “rapidly” or faster than competitors
         Parties’ competing claims about FDA monographs relating to cold
         sores, given NAD’s broader role of ensuring adequate support for ad
         claims, neither supported nor refuted the challenged claims
         Similarly declined to look to D. N.J. decision enjoining Merix cold sore
         drug claims with same active ingredient as Vioxyn, as each product, its
         claims, and their support are viewed independently
National Advertising Division Update
Viroxyn Cold Sore Treatment (cont’d)
  Held, regarding the claims at issue, that:
     Study did not support modified “One Day Cold Sore
     Symptom Treatment”, nor were claims of “rapid relief,”
     “greatly reduced healing time,” or working within “one day,”
     nor were “single application” claims of Viroxyn as “treatment”
     or “approach” to “treating” or “stopping” cold sores and/or
     Changing “proven to” to “shown to” did not save “shortens
     the duration” as it is still establishment claim held to high
     standard, and in any event study did not substantiate
     “shortens the duration” claims
     “fast pain relief – 1 day, 1 dose, healing begins”
     substantiated as sufficiently clear what happens after 1 day
     and 1 dose, i.e., healing “begins” but cold sore is not entirely
National Advertising Division Update
Viroxyn Cold Sore Treatment (cont’d)
  Held, regarding the specific claims at issue, that:
     “destroys virus” not supported as, even though active
     ingredient is germicide well-known to kill viruses and
     bacteria on contact, consumer could reasonably construe as
     promising to stop cold sores on contact, which was not
     supported by study
     “10,000 dentists” claim not supported by evidence –
     customer lists did not include 10,000 dentists, some
     appeared numerous times, and a number saw negative
     results (had already been changed to “distributed by dentists
     across the U.S.”)
     Testimonials re “miracle,” “great … because it works,” “best,”
     and “works fast” were permissible puffery or vague boasting,
     but “cure” or “only” effective product unsupported by study
National Advertising Division Update
Viroxyn Cold Sore Treatment (cont’d)
  Held, regarding the specific claims at issue, that:
     In “patented new approach” claim, “patented” supported despite
     discrepancies between patent description of applicator and
     description in product instructions, but “new” impermissible since
     product was more than 6 months old
     Claim that “active ingredient … is considered by the FDA to be safe
     and effective when used as a germicidal treatment on open skin
     wounds” was supported by FDA classification of ingredient as an
     antiseptic and skin would cleaner
     Rejected challenge that “competes against Abreva” suggests
     comparable relief and deemed substantiated as true on its face
     Testimonial by doctor who was also Quadex executive violated
     FTC Guideline requiring disclosure of link between endorser and
     seller that might materially affect weight or credibility
National Advertising Division Update
 Fuze Slenderize Guilt Free Lip Gloss
    Case No: 4845 (May 9, 2008)
    NAD challenged Internet ads by Too Faced Cosmetics for
    Fuze Slenderize Guilt Free Lip Gloss with:
       Express claims to the effect that:
           Has the same “healthy, energy boosting, appetite curbing
           ingredients” in Slenderize beverages
           “Always on the lips, Never on the hips.”
           The ingredients “work at the metabolic level to create
           satiety so you feel fuller.”
       Implied claim that consumers who use will lose weight
    Decision: Based on advertiser’s response to NAD request for
    substantiation, that it no longer produces or markets product,
    NAD administratively closed inquiry as being without
    sufficient merit to warrant expenditure of resources
National Advertising Division Update
 Quartet EnduraGlide Dry Erase Marker
    Case No: 4850 (May 15, 2008)
    Sanford, L.P., maker of EXPO dry erase markers, challenged
    ACCO Brands’ print, online, and packaging claims that Quartet
    markers last “twice as long,” “up to 2 times longer,” and “up to 3
    times longer” than “standard,” “other,” or “average” markers,
    due to a patented 3-chamber barrel
    Challenge: Sanford conducted own tests that showed ACCO’s
    claims were inaccurate, and claimed ACCO’s tests on which it
    based its claims were inadequate
    Decision: NAD recommended ACCO take immediate steps to
    ensure resellers stop using the “3 times longer claims,” and that
    it stop using the (already voluntarily discontinued) “2 times
    longer” and twice as long claims
Private Litigation Update

Pom Wonderful LLC v. Purely Juice, Inc., 2008 WL
  2019560 (9th Cir. 2008)
  Denial of preliminary injunction affirmed
  Alleged false advertising in claim that pomegranate
  juice is “100% pomegranate juice” and has “no added
  sugar or sweeteners”
  Relationship of FDA juice labeling regulation, 21 CFR
  § 101.30 and Lanham Act § 43(a) claim
  Dispute whether defendant’s product adds sugars or
  sweeteners and is “100% pomegranate juice”
  precluded finding of likelihood of success
Private Litigation Update (cont’d)

Benefit Resource, Inc. v. Apprize Technology
  Solutions, Inc., 2008 WL 2080977 (D. Minn. 2008)
  Preliminary injunction denied
  Claims arise from termination of business relationship
  and creation of new product by defendant that
  competed with product formerly marketed by
  defendant for plaintiff
  False advertising claim based on email sent by
  defendant to plaintiff’s customers claiming breach of
  security in plaintiff’s product
  Plaintiff could not show likelihood of success as email
  claim was substantially true
Private Litigation Update (cont’d)

Alpharma, Inc. v. Pennfield Oil Co., 2008 WL
  1990783 (D. Neb. 2008)
  Summary judgment granted to defendant
  Plaintiff claimed false advertising claim that
  animal-drug-feed-additive was FDA approved
  for uses the FDA had not approved
  FDA record on approval confused; held
  defendant entitled to rely on communications
  from FDA
Private Litigation Update (cont’d)

Arlington Video Prods., Inc. v. Fifth Third Bancorp,
  2008 WL 1990355 (S.D. Ohio 2008)
  Motion to dismiss Ohio Deceptive Trade Practices
  Act claim granted
  Plaintiff alleged defendant bank had charged
  previously undisclosed fees; alleged liability based
  upon false or deceptive advertising
  Failure to allege or prove that plaintiff had seen or
  relied upon allegedly false or misleading
  Further, account statement, booklet describing
  banking services, and fee printout held not to
  constitute “advertising”
Private Litigation Update (cont’d)

Syncsort Inc. v. Innovative Routines Int’l,
  Inc., 2008 WL 1925304 (D. N.J. 2008)
  Motion for partial summary judgment granted
  dismissing false advertising claim
  Defendant had ceased use of the offending
  claim; no injunctive relief available
  Plaintiff failed to offer evidence of actual
  customer reliance or deception

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