By Andrew Abraham

As the current presi-dent of MATA, I amhonored to represent anorganization I have beeninvolved with my entirelegal career. I am veryproud to be a triallawyer and to be part ofa group that works every

day to make the world safer for people onevery level. There is no more honorablework in our society as that which keepspeople safe and holds those responsiblewho do harm. As difficult as it may be, weshould all be proud to represent consumers againstlarge corporations.

I have advocated for years that MATA(and AAJ) should play a larger role inadvocating to the general public theneed for a strong civil justice system. It isan unfortunate fact that most in our so-ciety view personal injury lawsuits — and lawyers — as an economic drain with no social value.

MATA can and should be at the forefront of a

statewide effort of letting the public know how muchsafer their lives are because the “ambu-lance chasers” of the world have forcedcorporate America to pay more attentionto safety. Our children’s pajamas do notignite, our cars do not explode in side im-pacts and breast cancer and colon cancer

are much more likely to be detected earlier due to theefforts of the “ambulance chasers.” It is high time we let

By Roger T. Manwaring

The “Gob-bler” was ACMECo.’s most pop-ular vacuumcleaner and formany years hadgenerated brisksales nation-wide of replace-

ment bags and air filters. Bag andfilter sales plummeted, however, af-ter Knokoff Parts, Inc. began sellingits own, much less expensive bagsand filters, claiming that they were

“Gobbler Bags” and “Gobbler Fil-ters” and that they “fit the Gobbler.”

In fact, the Knokoff bags and fil-ters were of lesser quality and re-duced the effectiveness of the Gob-bler because they “fit” only veryloosely into the Gobbler’s bag andfilter slots. Can ACME sue Knokofffor false advertising?

1. Federal lawTo establish a claim for false ad-

vertising under §43(a) of the federalLanham Act, 15 U.S.C. §1125 (a), aplaintiff must demonstrate that (1)the defendant made a false or mis-

leading description of fact or repre-sentation of fact in a commercial advertisement about his own or an-other’s product; (2) the misrepresen-tation is material, in that it is likely toinfluence the purchasing decision;(3) the misrepresentation actuallydeceives or has the tendency to de-ceive a substantial segment of its au-dience; (4) the defendant placed thefalse or misleading statement in in-terstate commerce; and (5) theplaintiff has been or is likely to be in-jured as a result of the misrepresen-tation, either by direct diversion of

November 2011 | Vol. 5, No. 2

A Supplement to Massachusetts Lawyers Weekly

By J. Michael Conley

Since our lastreport in the Feb-ruary 2009 MATAJournal, the Ami-cus Committeehas continued tobe active and productive.

Old businessCases pending at last report had

mixed results. In Law v. Griffith, 457Mass. 349 (2010), the MATA - sup-ported position briefed by Mike Najjar — that it was error for a trialjudge to exclude a plaintiff’s evi-dence of medical charges just be-cause the amount actually paid wasless than the face value of the bill —prevailed. Meanwhile, in Foresta v.Contributory Retirement Appeal Board,453 Mass. 669 (2009) — MATA briefby Deborah Kohl — the court reject-ed an employee’s argument, sup-ported by MATA, that his entitle-ment to accidental disabilityretirement should be based on hisjob description, and not on injury-related changes in duties.

Newer business — cases briefedand decided

In Sikorski’s Case, 455 Mass. 477(2009), MATA, with valuable assis-tance from Boston College law stu-dent Soyoung Yoon, submitted anAmicus brief in support of a highschool teacher who had been injuredwhile acting as a volunteer chaper-one for a high school ski club tripand sought workers compensationbenefits.

The employer opposed the claimasserting that the injury was recre-ational and not work related. The SJCruled in favor of the injured teacher,reasoning that it was customary forteachers to serve as chaperones onsuch ski trips, that the school encour-aged such service and that the ski

trip advanced the school’s broad ed-ucational mission. MATA and Yooncompleted an outstanding draft ami-cus brief, honing in on the policy im-plications of the decision — the im-portant role of extracurricularactivities in secondary education andthe essential function of volunteerteachers to allow such activities to occur.

MATA supported a police officerwho was injured in a traffic accidenton his way to responding to anemergency call. The call arose when anegligently discharged patient wasstruck by a vehicle while walkinghome from hospital. brought negli-gence action against In Leavitt v.Brockton Hosp., Inc. 454 Mass. 37(2009), the SJC ruled that the hospi-tal owed no duty to officer, and thatthe officer’s injuries were caused by anegligent motorist, not the hospital.

MATA submitted an amicus briefin support of the plaintiff in the land-mark case of Papadopoulos v. TargetCorp., 457 Mass. 368 (2010), assistedby Tom Murphy, Professor Tom Careyand Boston College law studentRyan McLaughlin.

The SJC’s ensuing decision abol-ished the anachronistic “natural ac-cumulation” rule in snow and ice cas-es and put an end to the misuse ofthe so-called “open and obvious” rulein cases other than those based onfailure to warn.

In Joule, Inc. v. Simmons, 459Mass. 88 (2011), MATA joined inthe amicus brief of the AmericanCivil Liberties Union on a case inwhich the SJC ruled that an arbi-tration agreement binding on anemployee did not preclude MCADfrom proceeding with its own in-vestigation and resolution/remedi-ation of the employee’s complaintof unlawful discrimination.

Mike Najjar was principal author ofMATA’s memorandum in support ofFurther Appellate Review and amicus

False advertising under the Lanham Act

PRESIDENT’SMESSAGE

Amicus Committeeupdate

Continued on page 6

©iStockphoto.com/René Mansi

Wake up and smell the ‘Hot Coffee’

Continued on page 10 Continued on page 8

2 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS NOVEMBER 2011

In the September white paper “What YouNeed to Know about… Punitive Damages,”the national nonprofit consumer group Centerfor Justice & Democracy “examines the truthabout punitive damages” and argues that “theimposition or threat of punitive damages is socritical in the fight against reckless corporatebehavior that any effort to restrict them under-mines the safety of us all.”

According to the Center for Justice &Democracy’s executive director, JoanneDoroshow, “Punitive damages, which areawarded by juries to stop egregious wrongdo-ing, are one of the least understood features ofthe civil justice system. Conservative free-mar-ket economists have written that punitive dam-ages help deter non-cost-justified misconductso they are essential to a fair, safe and efficientsociety. We found that contrary to conventionalwisdom, punitive damages are extremely rare.Their social importance lies not in their fre-

quency, but in signaling to big companies thatthe financial consequences of acting recklesslycan be severe.”

According to author Emily Gottlieb, deputydirector for law and policy at the Center for Jus-tice & Democracy, the white paper debunksmany common myths about punitive damagesand “shows how punitive damages, either actu-al or potential, factor into corporate decisionmaking about product safety.” Among the report’s findings are:

• Punitive damages are rarely sought andrarely awarded (5 percent of civil cases, 3percent of tort cases with plaintiff winners).Most punitive damage awards are quitemodest ($64,000 median in civil cases,$55,000 median in tort cases).

• History shows that the imposition or threatof punitive damages has caused corporationsto take dangerous products and services offthe market and operate more safely. Manu-facturers support caps on punitive damagesbecause caps allow them to precisely budgettheir potential liability as a cost of doingbusiness; however, if it becomes cost-effec-tive for companies to simply pay victims and

their families for deaths or injuries ratherthan fix the problem, the essential functionof punitive damages to deter unsafe corpo-rate conduct is undermined.

• Since the 1990s, the U.S. Supreme Court hasbeen placing arbitrary limits on punitive dam-ages remedies; moreover, 38 states havepassed laws that impede consumers’ ability toseek punitive remedies. Legislative restrictionsinclude: 1) outright bans on punitive damages;2) damages caps; 3) mandatory apportion-ment of punitives to state funds; 4) height-ened burdens of proof; and 5) bifurcated trials.

• Congress is considering federal legislation(H.R. 5) that would make it virtually impos-sible for medical malpractice and drug-injuryvictims to obtain punitive damages fromdoctors, hospitals, nursing homes, pharma-ceutical companies or medical device manu-facturers, and would impose these federallimits in every state, overturning state law.

• Many who have pushed for restrictions onconsumers’ ability to seek punitive dam-ages, including major companies pushingfor caps on damages and other liability lim-its, do not hesitate to demand punitivedamages when they feel their own interestshave been compromised.

• Federal and state tax laws generally allowcorporations to deduct punitive damagespayments. Allowing companies to deductpunitives as “ordinary and necessary busi-ness expenses” effectively rewards and subsi-dizes grossly irresponsible or intentional be-havior, undermining their purpose to deteregregious misconduct.

Author Emily Gottlieb writes, “The availabili-ty of punitive damages protects us all by hold-ing wrongdoers accountable for egregious mis-conduct and deterring its future occurrence.Laws that restrict punitive awards place thepublic at serious risk, and lawmakers should notbe misled by falsehoods spread by corporate

special interests about this most valuable andimportant feature of our civil justice system.”

The full study can be found at http://center-jd.org/archives/studies/PunitiveDam-agesWhitePaper2011F.pdf

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The Center for Justice & Democracy is a non-profit, tax-exempt group founded by consumer ad-vocates to protect the civil justice system. More in-formation about the CJ&D is available on theorganization’s website, centerjd@centerjd.org.

PRESIDENTAndrew Abraham, Esq.

SECRETARYCharlotte E. Glinka, Esq.

PRESIDENT-ELECTTimothy C. Kelleher III, Esq.

IMMEDIATE PAST PRESIDENT Kimberly E. Winter, Esq.

TREASURER J. Michael Conley, Esq.

EDITOR-IN-CHIEFJ. Michael Conley, Esq.

PUBLISHERS/EDITORSPaul D. Dullea, Esq.

Sheila Sweeney

PRINTING AND PRODUCTIONMassachusetts Lawyers Weekly

Center for Justice & Democracy debunks common myths about punitive damages

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NOVEMBER 2011 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 3

Keep your uninsured/underinsured

arbitrations interest-ing

The Massachusetts Academyof Trial Attorneys

Cordially Invites youto a free screening

of the Award-winningdocumentary film

“Hot Coffee”

Wednesday, November 30th6:00 - 8:00 PM

Boston Public LibaryRabb Lecture Hall

Copley Square, Boston

THIS EVENT IS FREE AND OPEN TO THE PUBLIC

PLEASE RSVP TO info@massacademy.com

Amicus Committee

J. Michael Conley

Education Committee

Rhonda Maloney

Federal Legislation Committee

Douglas K. Sheff

Fundraising Committee

Saba B. Hashem

Key Person List Committee Chair

Gary W. Orlacchio

MATA Journal Editor

J. Michael Conley

Membership Committee

Kathy Jo Cook

Stanley D. Helinski

State Legislation Committee

Timothy C. Kelleher III

Jeffrey Catalano

Jonathan A. Karon

Auto Section

Michael Najjar

Medical Negligence Section

Frank J. Riccio

New Lawyers Section

Brendan Carney

Workers Compensation Section

Judson L. Pierce

Sean C. Flaherty

Women’s Caucus

Kimberly A. Dougherty

Lauren Barnes

MATA Committee & Section chairs

By J. Michael Conley

In Bolman v. PlymouthRock Assurance Corp., (Ap-peals Court No. 2011-P-0237) MATA member LoriA. Cianciulli contends —we think correctly — thatas a matter of law, unin-sured and underinsuredmotorist coverage

claimants are entitled to pre-award interest onarbitrated claims.

MATA has filed an amicusbrief in support of the proposi-tion, arguing that since interestis clearly recognized as a com-ponent of compensatory dam-ages, there is no reason that it should be un-available as part of the measure of suchdamages as defined by G.L.c. 175, §113L andthe Auto Policy.

The case was scheduled for argument onNov. 1. We suggest that in the meantime,claimants’ attorneys keep the issue of pre-award interest preserved in UM/UIM arbitra-tions that come up before Bolman is decided.(Copies of MATA’s amicus brief are available

through the MATA office).

“Hot Coffee” DVDs are hereHopefully, “Hot Coffee” is cold news by now

for most or all MATA members. This powerfuldocumentary by Susan Saladoff, according toVariety, “takes the subject of tort reform (yawn,right?) and the Republican assault against triallawyers and turns the conversation upsidedown, emerging as a powerful piece of advoca-cy journalism that challenges some of the facileimagery of greedy litigants and stupid juries.”

The film places a spotlight on the corporateinfluence undermining ordi-nary citizens’ rights in the civiljustice system. And it is enter-taining. Hot Coffee was wellreceived at many film festivals

and this summer was shown on HBO. As ofNov. 1, the film is available on DVD. If you havenot seen it, get the DVD for yourself. If youhave seen the film, you already likely under-stand why we should buy the DVD to circulateto family, friends, clients and anyone else whowill watch.

See this issue’s President’s Message for An-drew Abraham’s inspiring call to arms regard-ing this film.

EDITOR’S NOTE

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www.ALC123.com • 413-786-7925Members of MATA’s New Lawyers Section rolled up their sleeves to volunteer at Cradles to Crayons.

From left: David Hoey, Mike Conley, Rhonda Maloney, U.S. Rep. John Tierney,Michael Rezendes, Jonathan Karon, Doug Sheff and Paul Dullea at the AnnualCherry Blossom Tour

From left: Paul Dullea, Michael Conley, Jonathan Karon, Chris Milne, U.S. Rep.James McGovern, Doug Sheff and Rhonda Maloney at the Annual CherryBlossom Tour

MATA past President Kimberly Winter, Lt. Gov. Timothy P. Murray and MATAPresident Andrew Abraham

MATA Happenings

NOVEMBER 2011 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 5

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6 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS NOVEMBER 2011

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the public know what we do for them. I had a Latin teacher who said that luck is

when opportunity meets preparation. In thissense, I feel lucky to be the president of MATAwhen the film “Hot Coffee,” produced by Ore-gon trial attorney Susan Saladoff, has enteredthe public’s conscience. The award-winningdocumentary was named after a controversialand much-debated 1992 legal case involving awoman named Sheila Liebeck, from Albu-querque, N.M., who spilled a cup of McDonald’sscalding hot coffee on her lap.

Liebeck suffered horrific third-degree burnsthat required years of expensive treatment andmade her the joke of late-night talk shows, anduntil this documentary was made, served as thelaughable example of America’s civil justice sys-tem gone wrong.

“Hot Coffee” exposes the multi-million dol-lar campaign that was launched by McDon-ald’s to cover up the true facts of its negligencein exposing its customers to a dangerous prod-uct and its arrogance in thinking it would getaway with it.

When the jury in the McDonald’s case cameback with a verdict in the millions, jurors statedthey felt it was warranted by both of the in-juries Liebeck sustained. The national ridiculethat she suffered was the result of an elaborate

public relations campaign designed to hide thefacts and frame the issue as a civil justice sys-tem gone wild. “Hot Coffee” uncovers thedepth and expense of this carefully plannedand elaborate campaign that basically lied tothe public and let them believe those lies foralmost two decades.

When I went to see the film at the BostonMovie Festival, the crowd was largely laypeo-ple. Saladoff asked her audience before we sawthe film if anyone believed the McDonald’scase was frivolous. Almost every hand wentup. She then asked the same question after wehad seen the documentary and no one raisedtheir hand. The difference was astounding, asis the impact of this film.

Beyond telling the truth about the actualhot coffee case, the movie shines the light onthe well-organized and funded attempts togut the right to a trial by jury and to immunizelarge multi-national corporations from theirconsumers.

The movie covers caps on damages for med-ical malpractice cases, unseating judges acrossthe country who do not adhere to the idea thatcorporations can injure with impunity, and thelatest attack on the jury trial: mandatory arbi-tration contracts created to remove a worker’sor consumer’s right to a jury trial, no matterhow egregious the conduct.

At MATA, we feel so strongly that this movieis important that we will be taking many stepsto spread the message. MATA will have publicshowings throughout the state, and we are inthe process of inviting press, political leadersand other thought leaders to see this movie.

MATA cannot do the job alone, though. Iimplore anyone who cares about the civil jus-tice system, who thinks that corporationsshould be held accountable when they ignoresafety rules and that juries, not politicians,should set community standards of care, tonot only watch the movie but do your best tolet the public see the truths contained there-in. Some examples of what people can do:

• Have a showing at your home or officewhere you invite non lawyers, local press,politicians and other influential people inthe community.

• Post the link to the movie on your website. It can be viewed at our website, massacademy.com

• Write to your local papers either an editorialor a letter to the editor espousing the virtuesof “Hot Coffee.” Feel free to cut and pasteportions of this article.

• To those that run radio or television ads, do-nate one ad a week to publicizing the movie.

• Encourage your law school to make themovie mandatory viewing for graduation.

“Hot Coffee” is an expose that finally tells theAmerican public what really happens whencorporations decide they do not want to be re-sponsible for the harm they do and the lengthsto which these companies will go just to avoidresponsibility.

“Hot Coffee” was bought by HBO and isnow shown across the country. People are fi-nally seeing a documentary that tells the truthabout the facts behind the headlines. It maychange the way the public sees the trial bar andmore importantly, it may make them under-stand the rights they lose whenever they aredenied access to a jury trial.

As a proud trial lawyer, I know what we doevery day makes this a safer country. I knowthat if the U.S. Chamber of Commerce had itsits way, we would go back to the 19th century,when big businesses could kill their workerswith impunity, sell poisons to the public with-out recourse and contaminate the environ-ment without worry. The civil justice system isworth fighting for — and if not us, then who?

I hope all of you can see fit to take the timeto let the public know what “Hot Coffee” is allabout. Perhaps then, “trial lawyer” will be abadge of honor, not an insult.

Continued from page 1

Wake up and smell the ‘Hot Coffee’

NOVEMBER 2011 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 7

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8 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS NOVEMBER 2011

sales or by a lessening of goodwill associatedwith its products. Cashmere & Camel Hair Manu-facturers Institute v. Saks Fifth Avenue, 284 F. 3d302, 310-11 (1st Cir. 2002). See also Clorox Compa-ny Puerto Rico v. Proctor & Gamble Commercial Co.,228 F. 3d 24, 33 n. 6 (1st Cir. 2000); AmericanMedical Systems, Inc. v. Biolitec, Inc., 774 F.Supp.2d 375, 390 (D. Mass. 2011).

Only competitors, not consumers, havestanding to bring a Lanham Act false advertis-ing claim. Edquist v. Bidz.com, Inc., 2011 WL841047, *1 (D. Mass. 3/8/11), citing PodiatristAss’n, Inc. v. La Cruz Azul De P.R., Inc., 332 F. 3d6, 19 (1st Cir. 2003).

a. A statementA false advertising claim may be based not just

on false statements, but also on visual imageswhich convey claims (e.g. images in an orangejuice commercial which convey the claim that theproduct is produced by squeezing fresh orangesdirectly into the carton). Gillette Co. v. NorelcoConsumer Products Co., 946 F. Supp. 115, 128 (D.Mass. 1996), citing Coca-Cola Co. v. TropicanaProducts, Inc., 690 F. 2d 312, 317 (2d Cir. 1982).

b. Which is false or misleadingThe plaintiff must show that the defendant

has made a false or misleading statement offact. Thus, statements of mere opinion are notactionable. Gillette, 946 F. Supp. at 136-37 (ca-pacity for verification is the most importantquestion in determining whether a statement isone of fact).

In determining whether a statement is false,the court looks to the advertisement in its fullcontext. The focus, however, is on the individ-ual advertisement, not an ad campaign as awhole. Hipsaver Co., Inc. v. J. T. Posey Co., 490 F.Supp. 2d 55, 67 (D. Mass. 2007).

A false advertising plaintiff must show thatthe advertisement is either literally false or,while true or ambiguous, is nevertheless mis-leading. Cashmere, 284 F. 3d at 311. As dis-cussed below, whether a claim is “literally false”impacts the burden on the plaintiff to proveother elements of the false advertising claim.

Notably, a claim may be literally false evenif the false statement is implied rather thanexplicit.

[A]lthough factfinders usually base literal fal-sity claims upon the explicit claims made by an advertisement, they may also consider anyclaims the advertisement conveys by ‘neces-sary implication.’ … [A] claim is conveyed bynecessary implication when, considering the

advertisement in its entirety, the audiencewould recognize the claim as readily as if it hadbeen explicitly stated.

Cashmere, 284 F. 3d at 315, quoting Clorox,228 F. 3d at 34-35.

For example, in Cashmere, the plaintiffs al-leged that the defendant department store wasmarketing as “cashmere” clothes which con-tained only recycled, rather than virgin, cash-mere. The court held that the statement was lit-erally false because consumers would view theterm “virgin” as necessarily implied when a gar-ment was labeled “cashmere.” Cashmere, 284 F.3d at 316.

However, not “all messages implied by anadvertisement will support a finding of literalfalsity … The greater the degree to which amessage relies upon the viewer or consumer tointegrate its components and draw the appar-ent conclusion, … the less likely it is that afinding of literal falsity will be supported.”Clorox, 228 F. 3d at 35. (internal quotationmarks omitted).

The method by which to prove literal falsityalso differs depending on whether or not theclaim is a so-called “establishment claim.”Spalding Sports Worldwide, Inc. v. Wilson SportingGoods Co., 198 F. Supp. 2d 59, 66-67 (D. Mass.2002); Gillette, 946 F. Supp. at 121-22.

An establishment claim asserts that scientifictests or studies establish that a product works,while a non-establishment claim is a claim ofgeneral superiority and does not rely on tests orstudies. Id. A plaintiff can show that an estab-lishment claim is literally false simply by prov-ing that the tests or studies relied upon to vali-date the claimed fact do not do so.

This can be done in two ways. “First, theplaintiff may demonstrate that the test is notsufficiently reliable to permit one to concludewith reasonable certainty that [it] established theclaim made. … Second, the plaintiff may showthat the tests, even if reliable, do not establishthe proposition asserted by the defendant.”Spalding, 198 F. Supp.2d 59, 66-67. (internal cita-tions and quotation marks omitted). The factthat the defendant conducted the tests in goodfaith is not a defense. Gillette, 946 F. Supp. at 122.

The plaintiff’s burden is greater with regardto a non-establishment claim. “The plaintiffmust prove actual falsity of the challengedclaim.” Gillette, 946 F. Supp. at 122.

In the hypothetical, Knokoff’s claims con-cerning the replacement bags and filters arenon-establishment claims because they do notrely on studies or testing. Therefore, ACMEmust show that the bags and filters do not, infact, “fit” the Gobbler.

ACME can argue that Knokoff’s claims thatits filters and bags “fit” ACME’s Gobbler are lit-erally false by necessary implication. WhileKnokoff’s bags and filters do fit into the Gob-bler’s bag and filter slots, they do so only loose-ly, not snugly as do ACME’s own bags and fil-ters, as required to take full advantage of theGobblers vacuuming abilities. ACME’s positionwould be that use of the term “fit” necessarily

implies a snug fit similar to that of the ACMEparts originally installed in the Gobbler. SeeHolmes Group, Inc. v. RPS Products, Inc., 424 F.Supp. 2d 271, 290 (D. Mass. 2006) (holding that“advertisement that the filter ‘fits’ a Holmes airpurifier necessarily implies a secure fit”).

c. In a commercial advertisementThe false statement must be part of a com-

mercial advertisement. The courts have adopt-ed a four-part test for commercial advertising:

[A] representation must (a) constitute com-mercial speech (b) made with the intent of influencing potential customers to purchasethe speaker’s goods or services (c) by a speakerwho is a competitor of the plaintiff in some lineof trade or commerce and (d) disseminated tothe consuming public in such a way as to con-stitute “advertising” or “promotion.” EncompassIns. Co. of Massachusetts v. Giampa, 522 F. Supp.2d 300, 311 (D. Mass. 2007), quoting PodiatristAss’n, 332 F. 3d at 19. See also Gillette, 946 F.Supp. at 133.

Thus, where the plaintiff and defendant arenot competitors, there will be no viable LanhamAct claim. Nor can the plaintiff succeed if the al-legedly false statements are made not to influ-ence a purchasing decision, but are conveyed topurchasers after the sale has been completed.Gillette, 946 F. Supp. at 135 (“Advertising or pro-motion implies that the statements are made toinfluence a consumer in his or her choice topurchase a product. Statements made inside theproduct’s packaging, available to consumersonly after the purchase has been made, do notaffect the choice to purchase, that choice havingbeen made at an earlier point. The court thusconcludes that Norelco’s package inserts are not“commercial advertising or promotion” as thatphrase is used in section 43(a)”).

In the hypothetical, the statements weremade as part of commercial advertising andreached consumers in time to influence theirpurchase decisions.

d. MaterialityIn addition to showing that the defendant’s

statement is false or misleading, a Lanham Actfalse advertising plaintiff must show that thedeception is likely to influence a consumer’spurchasing decision. Cashmere, 284 F. 3d at311; Clorox, 228 F. 3d at 33 n. 6. It is not neces-sary to show that the deception actually influ-ences the purchasing decision, only that it islikely to do so. Cashmere, 284 F. 3d at 313;Clorox, 228 F. 3d at 33 n. 6. “One method of es-tablishing materiality involves showing thatthe false or misleading statement relates to an‘inherent quality or characteristic’ of the prod-uct.” Cashmere, 284 F. 3d at 311-12; Holmes, 424F. Supp. 2d at 292.

However, mere puffery is not actionable be-cause, by definition, such statements do not in-fluence purchasing behavior. “Puffing is exag-gerated advertising, blustering, and boastingupon which no reasonable buyer would rely.”Clorox, 228 F. 3d at 38. See also Gillette, 946 F.

Supp. at 130. In contrast, “a specific and meas-urable advertisement claim of product superi-ority … is not puffery.” Id.

In the present case, Knokoff’s claims that itsbags and filters are “Gobbler Bags” and “Gob-bler Filters” and that they “fit the Gobbler” arespecific statements of fact, not puffery. Thestatements concern an inherent quality orcharacteristic of the bags and filters and are,therefore, material to the purchasing decisionsof the target audience, those customers who al-ready own a Gobbler vacuum.

e. Consumer deception A false advertising plaintiff must prove that

the defendant’s statements actually deceive orhave a tendency to deceive a substantial seg-ment of the audience. “The relevant ‘con-sumers’ are those groups of people to whomthe advertisement was addressed,” Cashmere,284 F. 3d at 312 n. 11, (i.e. the target audience).The segment which is deceived need not be amajority. Any “not insubstantial” segment issufficient. Gillette, 946 F. Supp. at 128.

Where the plaintiff has shown only that theadvertisement, while true or ambiguous, is never-theless misleading, the plaintiff must also provedeception (or tendency to deceive) through rele-vant evidence. Usually this evidence is in theform of “surveys, which establish that consumerswere misled by the alleged misrepresentations.”Cashmere, 284 F. 3d at 313-14. “To satisfy its bur-den, the plaintiff must show how consumershave actually reacted to the challenged advertise-ment rather than merely demonstrating howthey could have reacted.” Clorox, 228 F. 3d at 33;Gillette, 946 F. Supp. at 128.

Where, however, the plaintiff shows that thedefendant’s statements are literally false (orfalse by necessary implication), the plaintiff cantake advantage of a legal presumption thatconsumers have been deceived. Cashmere, 284F. 3d at 314; Clorox, 228 F. 3d at 33; AmericanMedical Systems, 774 F. Supp. 2d at 390. “Com-mon sense and practical experience tell us thatwe can presume, without reservation, that con-sumers have been deceived when a defendanthas explicitly misrepresented a fact that relatesto an inherent quality or characteristic of thearticle sold.” Cashmere, 284 F. 3d at 315.

By showing that Knokoff’s claims are literallyfalse by necessary implication, ACME can takeadvantage of this presumption of consumerdeception.

Similarly, even if the statements are not liter-ally or by necessary implication false, there is apresumption that consumers have been de-ceived if the plaintiff proves that the defendantintended the advertisement to deceive. Cash-mere, 284 F. 3d at 311 n.8.

f. Interstate commerceA plaintiff asserting a false advertising claim

under the Lanham Act must show that the de-fendant’s statements were placed in interstatecommerce. In the present hypothetical, this re-quirement is satisfied because both ACME and

False advertising under the Lanham ActContinued from page 1

Roger T. Manwaring is an attorney at Barron &Stadfeld in Boston. He is the head of the Barron &Stadfeld Legal Research and Writing Service,which provides cost-effective, outsourced legal re-search and writing to attorneys in private and cor-porate practice. Learn more about the service atwww.barronstad.com. He can be reached atrtm@barronstad.com or connect with him viaLinkedIn.

NOVEMBER 2011 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS 9

Knokoff sell their products nationwide andKnokoff presumably advertised its replacementbags and filters in multiple states.

g. InjuryIn order to recover monetary damages for

false advertising, the plaintiff must show actualdamage to its business. Holmes, 424 F. Supp.2dat 292, citing Cashmere, 284 F. 3d at 311. In con-trast, to obtain injunctive relief a plaintiff needonly show a likelihood that defendant’s state-ments will cause consumer confusion or de-ception. Id.

“A precise showing [of injury] is not re-quired, and a diversion of sales, for example,would suffice.” Cashmere, 284 F. 3d at 318, quot-ing Quabaug Rubber Co. v. Fabiano Shoe Co.,Inc., 567 F.2d 154 (1st Cir. 1977). A lessening ofgoodwill associated with the plaintiff’s productsalso constitutes injury. Cytologix v. Ventana Med-ical Systems, Inc., 2006 WL 2042331, *5 (D.Mass. 7/20/06), quoting Cashmere, 284 F. 3d at310-11; Clorox, 228 F. 3d at 33 n. 6. A plaintiffsatisfies the injury element “if he puts forwardevidence from which a fact-finder can draw a‘reasonable inference’ of a causal connectionbetween the misrepresentation and the harmsustained.” Hipsaver, 490 F. Supp. at 67.

ACME will need to offer evidence thatKnokoff sold its replacement bags and filters topersons who would otherwise have purchasedACME products.

h. Lanham Act remediesA Lanham Act plaintiff can obtain injunctive

relief. 15 U.S.C. §1117(b). Most Lanham Actfalse advertising claims are litigated as motionsfor preliminary injunction. Damages may alsobe awarded if proven. A successful plaintiff un-der the Lanham Act can recover, subject to eq-uitable principles: “(1) the defendant’s profits[disgorgement], (2) any damages sustained bythe plaintiff, and (3) the costs of the action.” 15U.S.C. §1117(a). Treble damages may also beawarded in egregious cases. Expert testimony isoften crucial in establishing damages.

2. Massachusetts lawFalse advertising is not actionable under

Massachusetts common law, Thornton v. Har-vard University, 2 F. Supp. 2d 89, 95 (D. Mass.1998). G.L.c. 266, §91 prohibits misleading ad-vertising, but does not provide a private right ofaction for damages (any aggrieved party canobtain injunctive relief). Id. See also Chelen v.Philips Electronics North America, 20 Mass. L.Rep. 652, 2006 WL 696568 (Mass. Super.3/1/06); Mullins v. Corcoran, 2003 WL 25335521(Mass. Super. 1/6/03).

However, a victim of false advertising can ob-tain damages in an action under the Massachu-setts unfair business practices act, G.L.c. 93A,§§2, 11. Skinder-Strauss Assoc. v. MCLE, Inc., 914F. Supp. 665, 681-82 (D. Mass. 1995) (“[C]ourtshave confirmed that ch. 93A makes misleadingor false advertising actionable by a competitordamaged by such advertising”). See AbruzziFoods, Inc. v. Pasta & Cheese, Inc., 986 F. 2d 605,605-06 (1st Cir. 1993). A c. 93A, §11, plaintiff canobtain damages (which the court may double or

treble if the violation was willful or knowing),injunctive relief and reasonable attorneys’ fees.

Regulations promulgated under c.93A at940 CMR 6.04 state generally:

(1) Misleading Representations. It is an unfairor deceptive act for a seller to make any materialrepresentation of fact in an advertisement if theseller knows or should know that the materialrepresentation is false or misleading or has thetendency or capacity to be misleading, or if theseller does not have sufficient information uponwhich a reasonable belief in the truth of thematerial representation could be based.

The regulation then lists numerous specificpractices which are deemed unfair or decep-tive. 940 CMR 6.04 (2). The U.S. District Courtfor the District of Massachusetts has notedthat, “[t]he elements of a claim under chapter93A, for the most part, mirror the elements of asection 43(a) [Lanham Act] claim” and “theonly difference between section 43(a) andchapter 93A, as to false advertising claims, isthe additional element that the plaintiff mustdemonstrate that the defendant ‘knows orshould know’ that a statement it has made isfalse or misleading….” Empire Today, LLC v. Na-tional Floors Direct, Inc., 2011 WL 2161898, *10(D. Mass. 6/2/11), citing Gillette, 946 F. Supp. at120 n. 3.

The Supreme Judicial Court has further de-fined an advertisement as deceptive when “ithas the capacity to mislead consumers, actingreasonably under the circumstances, to act dif-ferently from the way they otherwise wouldhave acted (i.e. to entice a reasonable consumerto purchase the product.)” Aspinall v. PhilipMorris Cos., 442 Mass. 381, 396 (2004). See alsoHager v. Vertrue, Inc., 2011 WL 4501046, *5 (D.Mass. 9/28/11).

In Aspinall, the Court held that “a successful

[c.93A] action based on deceptive acts or prac-tices does not require proof that a plaintiff re-lied on the representation … or that the defen-dant intended to deceive the plaintiff, … oreven knowledge on the part of the defendantthat the representation was false.” Id. at 394.Further, “advertising need not be totally false inorder to be deemed deceptive in the context ofc.93A. … The criticized advertising may consistof a half truth, or even be true as a literal mat-ter, but still create an over-all misleading im-pression through failure to disclose material in-formation.” Id. at 394-95.

In our hypothetical, Knokoff’s advertise-ments claiming that its bags and filters, were“Gobbler Bags” and “Gobbler Filters” and thatthey “fit the Gobbler” would satisfy the decep-tiveness element of a 93A claim because theyare material statements of fact which Knokoffknows or should know are misleading andwhich have the capacity to mislead consumersinto acting differently than they otherwisewould have. Of course, ACME would still haveto establish the other elements of a 93A claim(e.g. injury) in order to bring a viable claim un-der state law for false advertising.

A free-market economy thrives on competi-tion and encourages every business to advertiseaggressively, highlighting the value of its prod-ucts or services and the flaws in those market-ed by others. The assumption is that con-sumers, armed with accurate information, willmake informed purchasing decisions and com-panies offering better products and services willprosper. The system breaks down, however,when a business makes false or misleadingclaims, gaining an undeserved advantage. For-tunately, a competing business victimized byfalse advertising can pursue a remedy underthe Lanham Act and Massachusetts law.

False advertising under the Lanham Act

The following firms have committed to giving a percentage of their fees to a MATA reservefund to ensure the longevity of the organization and continued ability of MATA to preservethe rights of your clients and succeed in obtaining its mission of keeping Massachusetts families safe.

Baker & AbrahamCooley Manion Jones LLPEpstein, Lipsey & Clifford

Feinberg & Alban, PCLaw Offices of John B. Flemming

Karon & DalimonteKazarosian Law Offices

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If you are interested in participating in this program or would like more information onprogram specifics, please contact Paul Dullea at the MATA office.

MATA Guardians

MATA has developed partnerships with the following companies. Theirservices have been determined to be of the highest quality and cost benefi-cial for our members. Their generous support of MATA helps us to completeour mission. Please consider using them whenever possible. More detailedinformation can be obtained on our website at www.massacademy.com orthrough the MATA office.

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10 MASSACHUSETTS ACADEMY OF TRIAL ATTORNEYS NOVEMBER 2011

brief in Golchin v. Liberty Mut. Ins. Co., 460 Mass.222 (2011), in which the court largely straight-ened recent confusion in auto insurance cases byreaffirming that payment of optional MedPaycoverage is not limited by the existence of healthinsurance; rather MedPay is “available where PIPbenefits are exhausted or unavailable.”

In Wentworth v. Henry C. Becker Custom Bldg.Ltd., 459 Mass. 768 (2011), the SJC ruled that ageneral contractor’s payment of workers’ com-pensation benefits (due to hiring a subcontrac-tor lacking the coverage) did not immunize orrelease it from a third-party wrongful deathclaim. Tom Murphy, Tom Bond and John Mor-rissey assisted with MATA’s brief in support ofthe prevailing plaintiff.

Tim Kelleher prepared an excellent amicusbrief for MATA in support of the unsuccessfulproduct liability plaintiffs in Hatch v. Trail KingIndus., Inc., 10-2153, 2011 WL 3795604 (1stCir. Aug. 29, 2011). A discussion of the caseappears in the Sept. 8 issue of Massachusetts

Lawyers Weekly.Metro. Prop. & Cas. Ins. Co. v. Morrison, 460

Mass. 352 (2011), represented another mixedoutcome for MATA. The SJC construed expan-sively the “intentional and criminal acts” exclu-sion of a homeowners policy contrary to thestricter interpretation urged by MATA. Howev-er, the court agreed with MATA’s position thatan insurer who has wrongfully refused to de-fend its insured cannot re-litigate coverage is-sues driven by facts determined in the underly-ing civil action.

Coming attractions: briefed and argued,decisions pending

In Juliano v.Simpson, SJC-10843, MATA sub-mitted an amicus brief in a social host negli-gence case. Professor Tom Carey wrote theMATA brief arguing that in light of existingsocial values and legislative policy judgments(as expressed by G.L.c. 138, §34), traditionalnegligence principles compel the conclusionthat one who owns or controls premises or

property has a duty not to knowingly allowunderage individuals to possess alcoholic beverages on it.

The MATA brief was joined by MothersAgainst Drunk Driving and two district attor-neys. The argument of the case on Sept. 6 isavailable for viewing on the Suffolk UniversityLaw School website.

Most recently, MATA filed an amicus briefin Bolman v. Plymouth Rock Assurance Corp.,Appeals Court No. 2011-P-0237. In thiscase (argument date Nov. 1), MATA sup-ports a plaintiff’s request for a ruling thatpre-award interest is part of “damages” un-der Massachusetts auto insurance statutesand the underinsured motorist coverage ofthe Massachusetts auto insurance policy,and thus should be awarded in UM andUIM arbitrations.

To provide or receive helpCopies of MATA amicus briefs are available

through the MATA office. Similarly, requests

for MATA amicus assistance may be directed tothe MATA office or to me at michael@kenney-conley.com. All help is welcome. We would behappy to hear from any member interested inparticipating on the Amicus Committee or inassisting with its efforts.

Finally, please note that many of MATA’samicus briefs do not start with a litigant’srequest, but rather from our learning in oth-er ways that an important issue is in play.Accordingly, MATA members and other in-terested parties are requested to alert us toany important pending appellate cases thatimpact MATA’s mission to preserve theAmerican jury system; to protect the healthand safety of Massachusetts families; to im-prove the quality of legal representationthrough education; to educate the publicabout consumer issues; to uphold the honorand dignity of the legal profession; and touphold and defend the Constitution of theUnited States and the Commonwealth ofMassachusetts.

Amicus Committee updateContinued from page 1

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MATA Holiday BallDecember 7, 2011 – Boston Harbor Hotel

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