Limited additional evidence is permitted on motion to reconsider
Schering-Plough Healthcare Products, Inc. v. Neutrogena Corporation, Civ. No. 09-642-SLR, June 7, 2010.
Robinson, J. Defendant's motion for reconsideration is granted. Defendant shall file a submission addressing only the additional evidence it seeks to present to rebut the presumption of consumer deception. Plaintiff may respond regarding disputes of the evidence submitted or positions represented.
Plaintiff filed this action alleging violations of the Lanham Act and the Uniform Deceptive Trade Practices Act. The specific advertising at issue in this litigation concerns defendant's new "Ultra Sheer Dry-Touch Sunblock SPF 100+" sunscreen (hereinafter, the "100+ Product"). Plaintiff contends that advertising falsely claim that the 1 00+ Product contains "Helioplex®" - a photostabilizing agent proprietary to defendant. On May 18, 2010, the Court granted partial summary judgment that the challenged advertisements are literally false. Defendant now moves for reconsideration on the basis that it was deprived of the opportunity to present a full response to plaintiff’s motion. Insofar as the court's prior order limited defendant's response to plaintiffs’ motion, the defendant will be permitted to submit evidence that its representations that the 100+ Product contained Helioplex® during the period at issue were not false on their face. Plaintiff will be permitted a response as to its position on the evidence and representations presented.
