AD-ttorneys@law – November 2, 2020

Alerts / November 2, 2020

In This Issue:

“The Dog Ate My Plush Toy” Doesn’t Fly in Orca Case

Sea World prevails in bench trial when plaintiff fails to produce stuffed toy

Whale of a…

Okay, okay, it’s a class action involving Sea World’s former orca shows—you know, live shows like this, with super cheery wet-suit wearing trainers dancing to cheesy tribal music while killer whales jump and splash the audience to earn some fish. But much as it pains us, we’ll avoid the obvious corny jokes—the subject matter is sad.

Orca shows (and breeding in captivity) were discontinued in 2016 after a groundswell of negative publicity from a newly woke public. A key component of that movement was the movie Blackfish, a BAFTA-nominated documentary dealing with controversy surrounding Tilikum, a killer whale who was involved with the deaths of three people between 1991 and 2010.

Blackfish highlighted the trauma allegedly suffered by killer whales in captivity, including the unimaginable torture of being separated from their offspring.


The movie was central to testimony provided by plaintiffs in Anderson et al. v. SeaWorld Parks and Entertainment, a class action that recently wrapped up with a bench trial in California’s Northern District.

The case has its roots in a complaint filed in May 2015 in California Superior Court. After removal to federal court, and by the time of the third amended complaint in late 2016, the suit focused on allegations regarding the experiences of two individuals—Kelly Nelson and Juliette Morizur.

Nelson claims that she was aware of the controversy surrounding Sea World’s treatment of orcas from viewing Blackfish, but that advertising statements by Sea World persuaded her. She claimed she went to the company’s website prior to her visit, where she read statements refuting two of Blackfish’s charges—that Sea World “did not separate calves from mothers” and that its “captive orcas had similar lifespans to those in the wild.”

Morizur alleges that she had a conversation with a Sea World trainer during a visit in 2012, in which she was assured that the killer whales’ “collapsed dorsal fins are ‘normal, and also equally common in the wild’” rather than a sign of emotional and physical distress, and that “captivity in general does not harm orcas.”

Nelson alleged economic injury from the purchase of her ticket because she relied on the allegedly false statements on the website to make the purchase; Morizur claimed injury because she trusted the trainer’s allegedly false assertions enough to buy a souvenir plush toy orca during her visit.


Suing under California’s Unfair Competition Law, False Advertising Law, and Consumer Legal Remedies Act, the duo sought “restitution and ask[ed] the Court to issue an order that would require ‘SeaWorld to inform the purchasing public on its website that captivity in general negatively impacts orca health, that orca lifespans are shorter in captivity than in the wild, that collapsed dorsal fins are common only in captive orcas, and that SeaWorld separates closely related and tightly-knit orca family members.”

Alas, it seems that the concern for animals that inspired the class action didn’t justify the legal arguments. In fact, the plaintiffs appeared to be their own worst enemies, with earlier depositions undercutting and sometimes contradicting their trial testimony.

Nelson, for instance, testified that her tickets cost $90-$100 and that she paid in cash. However, in her deposition, she had maintained that her husband had purchased the tickets with his credit card. Worse yet, “Ms. Nelson testified that she saw [the statements] on SeaWorld’s website…[but] when challenged on cross-examination, [she] admitted that she was not sure where she saw the statements.” Similar discrepancies existed between her testimony and deposition concerning the specific language on the website, and whether she would ever attend a production like the Sea World orca show in the future.

The Takeaway

Morizur fared worse, however. Serious questions were raised at trial regarding to whom, exactly, she had spoken at Sea World, and the nature of what she heard her/him/them say: “Ms. Morizur’s trial testimony about the statements she allegedly relied on was more expansive than the statements in the [complaint],” the court wrote, “and varied from her deposition testimony.”

But the nature of the after-show chat was immaterial, according to the court, because Morizur had “not met her burden to show she purchased a Shamu plush during her visit.”

One key witness (her father) could not recall if she purchased a stuffed animal or even took one home, and numerous photos taken the day of the trip did not show her with any stuffed animal. Worse yet, when asked to produce the plush, Morizur claimed in a tweet that her dog, Brutus, “chewed up the stuffed orca I bought at @SeaWorld years ago.”

Yes—you read that right.

It was a moment the court couldn’t let pass without comment. “Ms. Morizur’s lack of candor at trial, including …the fact that neither her parents nor her fiancé could corroborate the fact that the Shamu plush was destroyed lead the Court to discredit Ms. Morizur’s variation of ‘the dog ate my homework excuse’ as an explanation for why she did not produce the Shamu plush.”

No takeaway here, folks, except that if you happen to find yourself in the crosshairs of a false advertising class action, pray for adversaries like these.

Unreliable evidence caused the court to rule that plaintiffs had failed to plead essential elements of their causes of action, and this Moby Dick-length leviathan of a class action came to an end.

Banana Republic Sued over Punctuation Appropriation

Famous typeface designer wants ampersand damages

Typecast Designer

Of course Moshik Nadav is touchy about his art.

Check out his creations: Chances are you’ve seen Nadav’s typefaces before, particularly if you are at all interested in the fashion industry—he boasts clients with names like VOGUE, Estee Lauder, ELLE UK, Ann Taylor, and GQ magazine.

His designs are thoroughly modern, but—festooned with whorls and daring curves—harken back to the flamboyant sensibilities of the late 1960s and 1970s. Advertising creatives who work with his typefaces must feel that they’re playing an elevated game.

“What Mighty Contests…”

So it comes as no surprise that something as trivial as a lowly ampersand triggered designer rage in Mr. Nadav. In a complaint filed in early October in New York Southern District, Nadav accused well-known clothing company Banana Republic with swiping the ampersand from his “Paris Pro” typeface and using it commercially without his permission.

Nadav uses the ampersand as well as the Paris Pro font generally to design and sell jewelry and apparel on his website. The complaint contains numerous images allegedly culled from the Banana Republic website and social media feeds that use an identical ampersand.

The Takeaway

The Fashion Law, one of our favorite blogs, points out that copyright and trademark protections generally do not apply to typeface. Indeed, Nadav’s complaint tags Banana Republic with unjust enrichment rather than a copyright or trademark violation.

Nonetheless, according to the blog, “Moshik Nadav’s counsel appears to allude to copyright and trademark causes of action in the complaint,” using language that would be a part of a traditional copyright or trademark claim—for example, speaking of the “specific unique artistic ligature and logogram created by Nadav.” The whole thing is rather curious.

In any case, if you’re not interested in typography, you should be. Nadav’s complaint serves as a tiny window into the terminology and artistry of typeface design, and even a cursory investigation into this art form is rewarding — like architecture and industrial design, typography is an art form so ubiquitous that we seldom notice it, even as it shapes our daily experience. This is a case we will watch with interest, and – of course—report back!

Consumer Says Chews Aren’t for the Dogs

“No-Hide” chew strips have hide, says class action lawsuit

Oh My Dog!

When we pander to sentiment, we don’t screw around.

Take a look at these guys. Go ahead. Then this fella. And these.

If you owned one of these puppies, would you have the heart to give them anything but the best? The best veterinary care, the best grooming, the best snacks? What kind of monster would you be to give anything less?


These puppies are Dogue De Bordeaux, a French mastiff breed with pedigree going back to the 19th century. They’re adorable and exuberant as pups, then grow up to be mild-mannered and affectionate adults.


Imagine, then, the horror (allegedly) felt by one Laura Beveridge. Beveridge, a Georgia citizen and proud owner of a Dogue De Bordeaux named “Dumplin”, claims that she discovered that dog chews she had given to Dumplin contained rawhide—animal skin that has not been tanned.

The chews, manufactured by Connecticut-based Earth Animal Ventures, were packaged and labeled with messaging that declared them to be rawhide-free and “healthy, nutritious, of superior quality, natural, and/or unadulterated, and made with healthy, fully-disclosed ingredients.”

The Takeaway

Unfortunately for Earth Animal Ventures, Beveridge filed a putative class action against the company in the District of Connecticut, leaning heavily on the investigations of a certain leather chemist—the wonderfully named Waldo Kallenberger, Ph.D.—who analyzed a product sample and reached a devastating conclusion alleged in the complaint: “Given the size, thickness, and physical structure of the ‘bone’ material in this ‘No-Hide’ product, the material is absolutely rawhide split material,” and “such a material of this size with this size fibers…could only come from a large animal skin.”

(For the record, leather chemists are actual scientists, not members of an obscure fetish subculture.)

Beveridge charges Earth Animal Ventures with violations of the Connecticut Unfair Trade Practices Act, violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, fraudulent misrepresentation, and unjust enrichment, among others. In addition to monetary remedies, Beveridge seeks injunctive relief requiring full ingredient disclosure and testing and requiring Earth Animal Ventures to launch a corrective advertising campaign. Another case we are excited to watch – what fun.

Again with the Elderberries!?

Another company gets rapped by NAD for elderberry-COVID creep

Your Mother was a Hamster, Redux

Maybe we’re on to something?

A while back we brought you the case of Provezza Laboratories, producers of Provezza Elderberry Syrup. We mentioned how their elderberries, handpicked in sumptuous “ancient” Italian farmlands, were being hawked on Instagram as “Potent Immune Support During A Severe Season” and “highly concentrated to deliver antioxidant action for immune defense.”

We also mentioned how the National Advertising Division (NAD) launched an inquiry into these tags. Specifically, that Provezza’s claims about the stinky berries raised concerns that the product was being marketed with “misleading health-conferring benefits related to COVID-19”. We also mentioned how the company yanked the social media post in question, avoiding further NAD action and agreed to not repeat the claims.

We even referenced one of the funniest lines in Monty Python and the Holy Grail.

Everything New is Old Again

Who knew we would revisit elderberries only a few months later? Yep. Vitamin Bounty/Matherson Organics, a producer of dietary supplements, was tapped on the shoulder by NAD over a new elderberry-themed Instagram post that included the following text:

“[a]s restrictions are gradually lifting, it’s more important than ever to keep your immune system strong. Our Elderberry Immune Support keeps you protected with vitamin C, zinc, elderberries, garlic and echinacea; a powerful immune-boosting combo.”

So we find ourselves repeating the same takeaway again: There is no government-approved treatment or cure for COVID-19. None.

The Takeaway

If you’re selling health-related products, avoid even glancingly related claims like the ones Vitamin Bounty made.

Forget the mention of “restrictions,” which would be a direct enough reference to the pandemic. Although it’s more general, the phrase “it’s more important than ever to keep your immune system strong” could land an ad in hot water, because it still associates the product’s supposed immune system benefits with the current global health nightmare.

For reasons unexplained, Vitamin Bounty failed to respond to NAD’s inquiries. NAD then referred the claim to the Federal Trade Commission and the Food and Drug Administration, as is its wont to do.

Then, for reasons that need no explanation at all, “following this referral, Vitamin Bounty subsequently returned to NAD and agreed to participate in the advertising self-regulatory forum.” In short order, Vitamin Bounty discontinued the Instagram post, along with other similar claims made on Facebook.

And an already hoary Monty Python reference was consigned to the dustbin.

Ninth Circuit Keeps State Law Claims Alive and Well Despite Lower Court

False advertising claims in California not preempted by FDA Act, so class action survives

Hit the Brakes!

The United States Court of Appeals for the Ninth Circuit reversed the dismissal of a consumer class action against drugstore giant CVS this month, in an opinion that has important ramifications for how medical claims are handled.

Here’s the background.

James Kroessler, a citizen of California, sued CVS in February 2019, claiming that the company violated the Golden State’s Consumer Legal Remedies Act, Unfair Competition Law, and breach of express warranty. His beef seems straightforward: He claimed that CVS sold him a product called “CVS Health Glucosamine Chondroitin Tablets”, which promised help with “joint pain flexibility and mobility”. Kroessler claims that he learned after buying the product that glucosamine does not help joint health at all.

The putative class action was dismissed in May 2019 by the District Court for the Southern District of California, which held that Kroessler’s claims were preempted by the Federal Food, Drug and Cosmetic Act (FDCA). The District Court held that the challenged product’s claims regarding “joint pain flexibility and mobility” were proper “structure/function” claims under the FDCA, and thus California state law claims were preempted.

Structure/Function, What’s Your Function?

A brief and hopefully helpful side: To prevent false or misleading labeling, the FDCA differentiates between “disease claims” and “structure/function claims”. “Disease claims” are assertions that a product treats or cures a particular disease; “structure/function” claims, on the other hand, describe “the role of a nutrient or dietary ingredient intended to affect the structure or function in humans.”

In the Southern District of California ruling, the court dismissed the claims despite the fact that Kroessler could cite studies demonstrating that glucosamine didn’t do the job as advertised. Because federal requirements only require that the claims be substantiated, and because plaintiffs (rather than defendant) bear the burden of proving a claim is false, Kroessler’s claims failed.

The Takeaway

The Ninth Circuit disagreed with practically all aspects of the lower court decision, holding first of all that the glucosamine label did not present proper structure/function claims. And importantly, the Ninth Circuit held that “the FDCA does not preempt California false advertising causes of action simply because the challenged label contains a proper structure/function claim; instead, preemption applies only if” the state law claim would be evaluated under a different standard than the FDCA. Finally, the Ninth Circuit clarified that although California law does not place the burden on advertisers to substantiate their claims, consumers still have the right to challenge an advertiser’s proffered evidence.

It will be fascinating indeed to see how the district court handles the remanded case.

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