Munchkin, Inc. v. Playtex Products, LLC

MEMORANDUM

In this false advertising case, Appellant Munchkin, Inc. challenges the district court’s decisions (1) to order a new trial based on an erroneous jury instruction and (2) to exclude damages evidence pursuant to Rules 26 and 37 of the Federal Rules of Civil Procedure. We conclude that the district court acted within its considerable discretion in both instances and affirm.

The district court did not abuse its discretion when it ordered a new trial. Although we have held that a presumption of injury is appropriate in false direct comparative advertising cases, see, e.g., Traf- ficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 831 (9th Cir.2011), this is not a direct comparative advertising case because the “advertising does not directly compare ... products,” Harper House, Inc. v. Thomas Nelson, Inc., 889 F.2d 197 , 209 n. 8 (9th Cir.1989). We need not decide whether a jury may presume injury where advertising occurs in the context of a “binary” market structure, cf. Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 162 (2d Cir.2007), because the district court made a factual finding that the market at issue was not binary. We are not persuaded that this finding…