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Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2012 - June 3, 2013

June 3, 2013

Today the Supreme Court granted certiorari in one case of interest to the business community:

Lanham Act—Standing to Bring False-Advertising Claim

Section 43(a) of the Lanham Act (15 U.S.C. § 1125(a)) creates a federal private cause of action for false advertising and unfair competition. This cause of action encompasses, among other things, false statements made by competitors about each other’s products. Section 43(a) grants standing to bring a claim to “any person who believes that he or she is or is likely to be damaged” by the allegedly false advertising or unfair competition. 15 U.S.C. § 1125(a)(1)(B). Although the grant of standing appears quite broad on first reading, it has been circumscribed to varying degrees by courts applying prudential limitations on its scope. Today, the Supreme Court granted certiorari in Lexmark International, Inc. v. Static Control Components, Inc., No. 12-873, to resolve a circuit split concerning the proper test for determining whether a plaintiff has standing to bring a claim under Section 43(a).

The case arises from a lawsuit that Lexmark filed against Static Control alleging that Static Control was infringing on Lexmark’s patents covering microchips in toner cartridges for laser printers. Static Control counterclaimed under Section 43(a), alleging that Lexmark falsely told Static Control’s customers that Static Control’s microchip was infringing on Lexmark’s patents. Lexmark moved to dismiss Static Control’s claim, arguing that Static Control lacked standing under Section 43(a).

The district court granted Lexmark’s motion to dismiss Static Control’s Section 43(a) claim, following the Third, Fifth, Eighth, and Eleventh Circuits in holding that the test for standing to bring a false-advertising claim is the same rigorous five-factor test used in analyzing standing to sue for antitrust violations under the Sherman and Clayton Acts as set forth by the Supreme Court in Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519 (1983).

The Sixth Circuit vacated and remanded. See Static Control Components, Inc. v. Lexmark Int’l., Inc., 697 F.3d 387 (6th Cir. 2012). The court rejected the five-factor test, as well as the so-called “categorical approach,” used by the Seventh, Ninth, and Tenth circuits, which requires that the plaintiff be in competition with the alleged false advertiser. The Sixth Circuit instructed the district court on remand to apply the less rigorous “reasonable interest” test employed by Second Circuit, under which the plaintiff must show only (1) a reasonable interest in being protected against the allegedly false advertising and (2) a reasonable basis for believing that that interest is likely to be damaged by the allegedly false advertising.

The Supreme Court granted review in order to resolve this circuit split.

The Supreme Court’s decision in this case will be significant for businesses, as Section 43(a) claims have been raised and litigated with increasing frequency against businesses across a wide spectrum of industries. The decision has the potential to greatly expand or limit the universe of potential plaintiffs in these actions.

Absent extensions, which are likely, amicus briefs in support of the petitioners will be due on July 25, 2013, and amicus briefs in support of the respondents will be due on August 26, 2013. Any questions about this case should be directed to Andrew J. Pincus (+1 202 263 3220) in our Washington office.

Mayer Brown's Supreme Court & Appellate practice ordinarily distributes a Docket Report when the Supreme Court grants certiorari in a case of interest to the business community and a Docket Report-Decision Alert when the Court decides such a case. We hope that you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Richard B. Katskee, their general editor, at rkatskee@mayerbrown.com or +1 202 263 3222).

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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 

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