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Another note on standing

By Rebecca Tushnet

Gerald P. Meyer, Standing Out: A Commonsense Approach to Standing for False Advertising Suits Under Lanham Act Section 43(a), 2009 U. Illinois L. Rev. 295.

The proposal:

To address the concerns and criticisms of the current approaches to standing under section 43(a), courts should adopt a three-prong bright-line standard under which a plaintiff must show: (1) the injury is of the type contemplated by Congress when it enacted section 43(a) (i.e., it is commercial or competitive in nature); (2) there is a causal link between the injuries and the alleged false advertising; and (3) no other party is better suited to bring the action.

The proposal has some appeal, but the last prong suffers from vagueness: how might it be pled or proved? What if a third market participant has a bigger market share than the plaintiffs: is the plaintiff then worse than the third party such that only the market leader (or second-place finisher, if the market leader is engaging in false advertising) should be allowed to sue? If not, why not? Shouldn?t the burden be on the defendant to show someone better suited to sue for competitive injury?

And the note adds some odd ideas about using standing to get rid of cases where someone other than the plaintiff thinks the injury doesn?t justify the cost of litigation, which is particularly unnecessary in the contest of Lanham Act litigation, where attorneys? fees awards are relatively rare. The conclusion that Phoenix of Broward was rightly decided for the wrong reasons is particularly troubling, and indicates that the proposed test isn?t nearly as clear-cut as the author thinks it is.

Here?s the basic idea, also endorsed by the Phoenix of Broward court: the false advertising at issue was that McDonald?s falsely advertised that high-value prizes were available in its contests. In fact, due to fraud by employees of the agency employed by McDonald?s to administer the contest, high-value prizes weren?t available, though lower-value prizes were. The court thought that the small chance of winning the high-value prizes couldn?t have been a big factor in driving sales to McDonald?s, thus the causation was too attenuated.

The problem is that the court made this fact-intensive determination in deciding a motion to dismiss. Subfactors of the problem: First, plaintiffs should have been entitled to a presumption that the high-value prizes were important to consumer decisions, given the prominence of the high-value prizes in the advertising; McDonald?s thought the high-value prizes mattered. Second, plaintiffs should have been allowed to submit evidence that small chances of winning big prizes have a powerful impact, whether you want to call this the result of consumers? taste for risk or of their weakness in correctly evaluating low-probability but high-payoff events. Though there certainly are cases where causation is sufficiently implausible that a case can be resolved on the pleadings, this wasn?t one of them.

Full post as published by 43(B)log on May 21, 2009 (boomark / email).