AD-ttorneys@law - August 17, 2021

Alerts / August 17, 2021

In This Issue: 

Gruesome Murder Docudrama True Enough for New York’s Supreme Court

Right-to-privacy protections don’t kick in for murderer represented in “broadly accurate” TV movie


According to Variety, “Romeo Killer: The Chris Porco Story” is a made-for-television melodrama that “taps into the perennial hook of the suave sociopath—the handsome boy next door who, it turns out, is apparently capable of taking an axe to his sleeping parents.”

In fact, the magazine continues, “the most distinctive thing about … the movie is that Chris Porco—the actual guy, currently in prison—sought and temporarily obtained an injunction to prevent Lifetime from airing it.”

Lizzie Modern

The underlying crime for which Porco went to the slammer was brutal—the 2004 axe murder of his father and near-murder and disfigurement of his mother. We’ll spare you the grotesque details, but suffice it to say that it was lurid enough to make it to Lifetime Network.

And that’s our angle on this horrible story—a recent New York Supreme Court appellate decision that illuminates that particularly important state’s take on right-to-privacy disputes.

The background is simple: Porco’s original trial, conviction and related disputes had wrapped up by 2012. Upon hearing that Lifetime was producing its “Romeo Killer” masterpiece, Porco sued the network in 2013, claiming the network had violated his rights under New York State’s privacy laws, which establishes liability when “a living person’s ‘name, portrait or picture’ [is used] for advertising or trade purposes ‘without having first obtained the written consent of such person or[,] if [such person is] a minor[,] of his or her parent or guardian.’”

Porco secured a temporary restraining order that initially prevented broadcast of the movie but was shortly overturned. Lifetime moved to dismiss this case and won dismissal in the lower courts; Porco appealed and won before the appellate court.

The Takeaway

The appellate court held that the narrow protections afforded by New York State privacy laws did not apply when the subject matter of the underlying work concerned “reports of newsworthy events or matters of public interest,” which certainly fit the bill in Porco’s case.

Nonetheless, the appellate court also held that free speech protections did not apply where authors had produced “a materially and substantially fictitious biography where a knowing fictionalization amount[ed] to an all-pervasive use of imaginary incidents,” an argument that the court believed Porco had made with sufficient strength to reverse the dismissal.

The State of New York Supreme Court, reviewing the earlier decision, found that the underlying murder of Porco’s parents was indeed newsworthy—but that the police and media interviews with Porco provided by Lifetime to defend its docudrama demonstrated that the film “presents a broadly accurate depiction of the crime [and] the ensuing criminal investigation and the trial that are matters of public interest.” Alerts provided by Lifetime in the broadcast stating that the film was “[b]ased on a true story” and was “a dramatization” in which “some names have been changed, some characters are composites and certain other characters and events have been fictionalized” went further to establish that right-to-privacy protections did not apply in this case.

With that, Christopher Porco’s complaint came to an end. We’ll see if he tries to bring it back to life in some other form.

FCC Issues Second Annual State-of-the-Robocall Report

“We’re on it, and so are they!” shouts Commission

Don’t Call It a Comeback

We reported just a few weeks ago that robocall rates were surging after a COVID-induced slowdown. The Federal Communications Commission reports receiving approximately 150,000 complaints about robocalls in 2016; 185,000 in 2017; 232,000 in 2018; 193,000 in 2019; and 157,000 in 2020. See the dip?

Unfortunately, 2021 is shaping up as a “good” year for dastardly autodialers. So far, the Commission is averaging 15,600 complaints a month for 2021, putting it on track to outperform 2020 by 30,000.

With these rates in mind, the Federal Communication Commission’s issuance of its second annual report on the state of robocalls and enforcement countermeasures surely serves as a prophylactic against rising consumer dissatisfaction.

Also, for more information on how the recent Supreme Court ruling on the definition of autodialers changes the Telephone Consumer Privacy Act landscape, check out our Data Counsel blog post here.

The Takeaway

The report contains exactly what you’d expect—updates on the Commission’s efforts, including consumer education, collaboration with the Federal Trade Commission, TRACED Act and STIR/SHAKEN implementation, and so on. There are sections in which the Commission summarizes what telecom companies and third-party providers are telling it they are doing. No real bombshells or surprises, just assurance that the Commission is plugging away—or, rather, that the companies that are mandated to respond to the Commission’s oversight are plugging away.

So if the rate of growth in robocalls rises to pre-pandemic levels, we’ll have a hefty record of the FCC’s efforts.

But other deadlines are looming—or, more properly, have loomed. The much-vaunted STIR/SHAKEN protocol went into full effect on July 1. Looking ahead, the Robocall Mitigation Database, mentioned in our previous reporting, will be mandatory for all voice providers this September.

Will these positive efforts prove as effective as an invisible virus at shutting down autodialers? The public might not be paying attention now, but if the robocall numbers keep rising, a more stringent accounting might become the order of the day.

NAD to Supplement Company—You’ve Got a Lotta Nerve

Watchdog Group Challenges LifeRenew nerve pain claims and wins

Serious Business

The Council for Responsible Nutrition (CRN) is at it again.

By “it,” of course, we mean sustaining and enhancing “a climate for [dietary supplement and functional food manufacturers and ingredient suppliers] to responsibly develop, manufacture and market dietary supplements, functional food and their nutritional ingredients.”

Quite a mouthful.

But give the CRN its due—it relentlessly pursues companies that might otherwise be part of its constituency, helping to maintain standards in an industry that draws its share of consumer suspicion and regulatory attention. The National Advertising Division (NAD) seems to be a favored forum for CRN’s activities—see here, here and here for examples.

Latest Iteration

Which brings us to our latest CRN/NAD combo—the case of LifeRenew, whose “science-backed products have helped thousands to reduce nerve discomfort or numbness, get better sleep, and regain independence.”

The product in question, NerveRenew, purports to address the pains that linger on after nerve damage. “Nerve Renew products use effective, research-backed ingredients to regenerate damaged nerves and reduce the symptoms of nerve damage for lasting relief,” claims the LifeRenew website.

What fault did CRN find? The watchdog claimed that LifeRenew made unsupported boasts that “R-Alpha Lipoic Acid (R-ALA) is our most important ingredient” and that, when combined with B vitamins and herbal extracts, R-ALA provided a “synergistic effect.”

The Takeaway

CRN challenged these tags before NAD and succeeded in securing a decision urging LifeRenew to discontinue the claims.

“NAD reviewed the two clinical studies offered by the advertiser in support of the claim and determined that they were not sufficiently reliable support,” NAD noted. “These studies assessed ALA’s (not R-ALA’s) impact on diabetic neuropathy (without any evidence that ALA and R-ALA are functionally equivalent).”

The “synergistic effect” claims also fell by the wayside, with the studies submitted by LifeRenew failing to prove such an effect. Moreover, the studies themselves weren’t designed to address the specific claims advanced by the company.

Finally, LifeRenew had boasted that another ingredient, benfotiamine, had “3x greater bioavailability” than one form of the B1 vitamin. “NAD concluded that the single clinical study comparing the bioavailability of benfotiamine and thiamin hydrochloride was not a good fit to support the challenged claim,” the watchdog wrote. “Nor were the review articles or an animal study provided by the advertiser.”

The latest chapter in CRN’s crusade came to a close when LifeRenew vowed to follow NAD’s recommendations on all three fronts.

“Strike Suiters” Continue Natural Ad Onslaught

With new, chocolatey cases, one firm continues drilling for pay dirt

And You Thought the Briefs Had Slowed Down

Our hands are hurting from the sheer amount of type we’ve clunked out regarding a certain unnamed plaintiff’s firm. It has been on an unnatural “natural” advertising lawsuit tear for the past half-year.

The firm in question has been playing a tight set of variations on a single complaint, launching deceptive marketing class actions involving ingredients used by defendants Mars Wrigley Confectionary (vanilla, milk chocolate and berries), Blue Diamond Growers (vanilla again), and Kingsford Products Co. (lump charcoal).

The gist goes something like this: The product packaging omits to mention or depict that artificial ingredients contribute to and degrade the flavor of the product (or, in the case of the charcoal suit, the efficacy and environmental impact of the burn). Having paid a premium for natural products that taste (or burn) better, the plaintiffs demand recompense.

The firm that has initiated these suits (and quite a few others) has been directly attacked by the opposition as opportunists hoping to force settlement agreements by dint of overwhelming numbers of suits. In the first vanilla suit cited above, Mars decried the effort, and others like it, as strike suits: “The procedural history of these cases underscores their purpose,” the memo proclaims—to “leverage the threat of putative class claims and force early settlements.”

The Takeaway

Perhaps the settlement of the Blue Diamond case, referenced above, encouraged plaintiffs’ counsel, as two new cases, filed by the same firm, have come to our attention, and it’s hard to mistake their signature approach.

Spurck v. Demet’s Candy Company, LLC, for starters, concerns fudge—white fudge, to be specific—which it defines as “a type of sugar candy that is made by mixing sugar, butter and milk.” For those of you who are feeling suddenly peckish, the complaint features several fudge recipes from the turn of the twentieth century.

Milk is the key here; because milk fat melts at mouth temperature, veggie oil, which is listed prior to milk on the ingredients panel for Demet’s Flipz White Fudge Covered Pretzels, cannot provide the same taste experience the class members expect. Spurck and her class are suing for fraud, unjust enrichment, negligent misrepresentation and violations of New York State business law.

Zurliene v. Dreyer’s Grand Ice Cream, Inc. concerns similar allegations regarding Häagen-Dazs brand Vanilla Milk Chocolate Ice Cream Bars. Once again, the litigators behind these cases are relying on a well-honed template.

Will Dreyer’s and Demet’s fight or fold? We’ll keep our ear to the ground. In the meantime, we’ll be filing workers’ comp claims for our aching wrists.

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