Should Rule 9(b) Govern Pleading of Lanham Act False Advertising Claims?

In Cocona, Inc. v. Singtex Industrial Co., Ltd., 2014 WL 5072730 (D. Colo. Oct. 9, 2014), the U.S. District Court for the District of Colorado joined the ongoing debate about whether heightened pleading is required for Lanham Act false advertising claims. Noting the absence of any prior authority from the Tenth Circuit or the District of Colorado, and acknowledging that district courts in other jurisdictions are split on this issue, the Cocona Court followed the Ninth Circuit’s approach to Rule 9(b) in Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003) to hold that “Rule 9(b) applies to false advertising claims under the Lanham Act only insofar as the factual averments allege intentional or knowing misrepresentations. Such averments must be pled with particularity. To the extent the Lanham Act claim is based entirely on ‘a unified course’ of such conduct, the entire claim must be pled with particularity.”

Under that standard, the Cocona Court found that Rule 9(b) applied to the portions of the plaintiff’s false advertising claim arising out of the defendant’s knowing misrepresentations of how the defendant’s fabric product compared to the plaintiff’s product, but that Rule 8(a) applied to the portions of the plaintiff’s false advertising claim based on the defendant’s misleading statements about the traits of the defendant’s own product.

The decision of courts to apply Rule 9(b) is surprising since neither an intent to deceive nor a false statement is required to state a Lanham Act false advertising claim. Requiring heightened pleading also may not be practical given that “[a]dvertising is often conducted by large corporations through other corporate advertisers [and] [t]he specific personnel involved in producing and authorizing the allegedly false advertising within the corporate structure will typically be unknown, absent discovery.” Priority Int’l Animal Concepts, Inc. v. Bryk, 2012 WL 6020044, at *5 (E.D. Wis. Dec. 3, 2012) (“[a] business injured by false advertising should not be deprived of a remedy to address such harm simply because it has yet to discover all of the details as to who is responsible and whether they acted with intent or not, especially since these facts are not even material to the claim”).

Despite these legal and practical considerations, district courts remain divided on whether Rule 9(b) or Rule 8(a) governs the pleading of Lanham Act false advertising claims. Until there is further clarity from the courts of appeals or the Supreme Court, plaintiffs should pay careful attention to the potential for heightened pleading requirements in choosing where to sue.