False advertising occurs when one competitor makes a false statement in an advertisement or promotion about a product or service that it sells or that a supplier or competitor sells. When this occurs, a harmed competitor (or in some cases a harmed supplier) can bring suit for false advertising under the Lanham Act, which is codified at 15 U.S.C. §§ 1051 et seq.
To prevail on a claim, the following matters must be proved by the victim of false advertising (usually a harmed competitor, but sometimes a harmed supplier): (1) the false advertiser ran or displayed an advertisement or promotion that stated or implied one or more false facts about its own offerings or those of a competitor or supplier; (2) the false advertisement misled or had a tendency to mislead a significant share of the prospective purchasers to whom it was shown—which can be proved by customer surveys, expert testimony, and customer testimony; (3) the misleading statement in the false advertisement likely affected the purchasing decisions of those misled by it (proved by the same evidence listed directly above); (4) the harmed competitor or supplier therefore lost sales to the false advertiser or suffered harm to its goodwill, i.e., its sales and profits were “diverted” to the false advertiser—which can be proved under a relaxed standard; and (5) the advertisement affected interstate commerce—a requirement that can usually be satisfied under the modern definition of interstate commerce.
A harmed competitor can also seek related redress under California Business & Professions Code Section 17500 if the false advertising deceives customers or harms a business located in California.
We have substantial experience litigating claims for false advertising on behalf of plaintiffs and defendants.
Our Ability to Accept Large Cases
Several times we have been opposed by teams of highly capable attorneys fielded by leading global law firms. In any such matter, or whenever the need arises, we can quickly assemble our own team of first-rate professionals who have worked with us successfully on prior occasion, and we can also procure essential litigation services from reliable outside service-providers, so that we are never outmatched or overwhelmed even by the largest or most pro-active global firm. We think that our work in these matters has reflected favorably on us, and we have obtained successful results for our clients in exceedingly difficult, sprawling, and complex antitrust controversies. All the while, we are able to maintain our reasonable billing arrangements because of the manner in which our practice is structured and our lean fixed costs.
Our Articles on Antitrust Law
Mr. Markham and Mr. Bona have given lectures on antitrust law for other attorneys (MCLE classes) and written extensively about antitrust law. Mr. Markham provides occasional commentary in his blog about antitrust issues that make the news, and Mr. Bona does this same in his own blog. Below you will find links to three articles on antitrust law written by Mr. Markham that have become reference sources for other attorneys and the general public:
Senator Klobuchar’s Bill Really Might Become Law. Senator Amy Klobuchar (D-Minn.) has proposed a landmark antitrust bill, entitled the “Competition and Antitrust Law Enforcement Reform Act,” which after negotiation and modification might well receive bipartisan...
The Qualcomm Case Isn’t Even a Close Call: Qualcomm Blatantly Misused Its Standard-Essential Patents to Restrain Trade and Monopolize Markets. By William Markham
The Extraordinary Qualcomm Case. The defining antitrust issues of our time are at stake in the landmark case of Fed Trade Comm'n v. Qualcomm Inc., (N.D. Cal. 2017, Case No. 17-CV-00220-LH) ("Qualcomm"). Qualcomm specifically concerns standard-essential patents and...
The DOJ’s Investigation of the Auto Producers’ Draft Agreement with California: It Is Misguided and Likely an Abuse of Power. By William Markham
The United States Department of Justice has reportedly begun an antitrust investigation of four major automakers for possible unlawful collusion in violation of United States antitrust law. The cause of this investigation? The automakers tentatively agreed with the...
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