Removal Papers Argue Consumer Fraud Act Claim Sounds in Copyright

Posted on July 25, 2008 by R. David Donoghue

LimitNone v. Google, Inc., No. 08 C 4178 (Manning, J.).

Last month I posted that LimitNone, a Chicago company, sued Google for trade secret misappropriation seeking $1B -- click here for that post.  Earlier this week, Google removed the case to the Northern District, arguing that LimitNone's Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") claim sounded in copyright and, therefore, was preempted by the Copyright Act creating federal question jurisdiction (click here for Google's removal papers). 

In its complaint, LimitNone alleged that Google entered a nondisclosure agreement with LimitNone to review LimitNone's gMove software -- software that helps Microsoft Outlook users migrate data to the Google platform.  Google allegedly assured LimitNone that it would not offer a competing product.  But after receiving LimitNone's trade secrets, including its software code, and promoting the $19 gMove software, Google allegedly began offering a free, competing software package which allegedly used LimitNone's trade secrets.   LimitNone has not filed any responsive papers or pleadings yet, but I will keep you updated if LimitNone challenges the removal.

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Rule 9(b) Pleading Standards for Lanham Act False Advertising Claims

Posted on March 31, 2008 by R. David Donoghue

CardioNet, Inc. v. LifeWatch Corp., No. 07 C 6625, 2008 WL 567031 (N.D. Ill. Feb. 27, 2008) (Conlon, J.).

Judge Conlon granted in part counter-defendant CardioNet’s Fed. R. Civ. P. 12(b)(6) motion to dismiss counter-plaintiffs’ (collectively, “LifeWatch”) Lanham Act false advertising and related Uniform Deceptive Trade Practices Act (“UDTPA”) and Consumer Fraud and Deceptive Trade Practices Act (“CFA”) claims. LifeWatch alleged that CardioNet improperly acquired one of LifeWatch’s prescription-only heart monitoring devices, the Life Star ACT. The device monitors a person’s heart rate and uses a cell phone to transmit irregular readings to a monitoring station. CardioNet allegedly inspected and tested the device. Then based on its tests, CardioNet allegedly misappropriated LifeWatch’s trade secrets and intentionally made false and misleading statements about the LifeStar ACT in its advertising. LifeWatch’s Lanham Act, UDTPA and CFA claims were all based upon CardioNet’s allegedly false advertising.

LifeWatch identified the allegedly false statements with specificity, but because LifeWatch did not plead who made them or when and where they were made, LifeWatch’s claims did not meet Rule 9(b) heightened pleading standards. The Court, therefore, dismissed the Lanham Act, UDTPA and CFA claims.

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