Supreme Court of the United States Establishes New Standard for Standing in False Advertising Cases under the Lanham Act

Must a plaintiff be an actual competitor of the defendant to maintain a false advertising claim under the Lanham Act?  The Supreme Court of the United States recently, and unanimously, said “no.”  Although some federal circuit courts previously required a competitor relationship between plaintiff and defendant, the Supreme Court of the United States recently resolved a circuit split and set forth a new standard to determine whether a plaintiff has standing to bring a false advertising claim under the Lanham Act, 15 U.S.C. § 1125(a).

In Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873, 572 U.S. ___ (2014), the Supreme Court held that a plaintiff has standing to bring a false advertising claim under the Lanham Act if (1) the plaintiff is “within the zone of interests in a suit for false advertising,” meaning that the plaintiff alleges an “injury to a commercial interest in reputation or sales”; and (2) the plaintiff’s “injuries are proximately caused by violations of the statute.”  Lexmark, slip op., p. 13.

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Posted by Stephen Weigand
Advertising and Media
May 6, 2014

ABA Clarifies Ethical Rules Associated With Attorney Viewing of Juror Social Media

While social media can be a useful tool for attorneys, it can also be an ethical minefield.  A lawyer may be tempted to search a potential juror’s Facebook or Twitter page to assist in the jury selection process.  Is such conduct permissible?  The American Bar Association (“ABA”) recently provided some clarity on what is permitted under the Model Rules of Professional Conduct.

Last week the ABA Standing Committee on Ethics and Professional Responsibility released Formal Opinion 466, addressing the legal ethics of monitoring a juror’s social media presence.  The ABA concluded that passively viewing public information posted by a juror or potential juror is permitted, even if the social media platform generates a notification to the juror that the attorney has viewed his or her profile.  However, an attorney is not permitted to send a juror a request to access a private portion of the juror’s social media page.  If, through passive viewing of a juror’s social media, a lawyer discovers criminal or fraudulent conduct by a juror related to the proceeding, the lawyer must take reasonable measures including, if necessary, disclosure to the tribunal.

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Posted by Marleen Herring
Advertising and Media
April 28, 2014

District Courts Within the Sixth Circuit Weigh in on Discoverability of Social Media Information, Apply Traditional Discovery Rules to Emerging Forms of Technology.

The way people communicate with one another, share their documents, and store their personal information is changing rapidly.  Letters, filing cabinets, and personal diaries have given way to laptops, tablets, and social media websites.  Facebook alone has 1.15 billion users, who every single day, upload approximately 350 million pictures.  Almost inevitably, a portion of the massive amount of electronically stored information on social media websites has become relevant to state and federal lawsuits, forcing judges to apply traditional rules of discovery to new and emerging forms of technology.

District courts within the Sixth Circuit have recently issued several opinions regarding the discoverability of social media information stored on websites, such as Facebook.  Two cases in particular, Tompkins v. Detroit Metro. Airport and Howell v. Buckeye Ranch, Inc., highlight the district courts’ application of traditional rules to disputes involving evidence stored in a social media account.

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Posted by Jeff DeBeer
Advertising and Media
January 14, 2014

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