media interviews weren't commercial speech for Lanham Act purposes

Vincent v. Utah Plastic Surgery Society, No. 2:12–CV–1048,  2013 WL 4782354 (D. Utah Sept. 5, 2013)

Plaintiffs are cosmetic surgeons—a specialty “dedicated exclusively to the enhancement of appearance through surgical and medical techniques” but “performed by surgeons from a variety of disciplines.”  Plastic surgery, by contrast, is “dedicated to the reconstruction of facial and body defects.”  Plaintiffs alleged a comprehensive effort by various doctors and plastic surgery associations to eliminate cosmetic surgeons from competing in the cosmetic surgery market.

Defendants allegedly placed billboards along an interstate designed to look like PSAs, e.g., a young woman with a distressed look on her face with the caption “I didn’t know ... [m]y ‘Cosmetic Surgeon’ wasn’t a Plastic Surgeon.” The billboards also displayed, among other things, the logo of the American Board of Plastic Surgery (ABPS).  Plaintiffs also challenged messages found on the Utah Plastic Surgery Society’s website, including “Cheaper, Faster, Scarier” and “Lack of Training Can be Deadly in Cosmetic Surgery.” That website also had the ABPS emblem, along with brief profiles of each of the UPSS’s member physician.  Also, one of the individual defendants, Fairbanks, gave a TV interview stating that “there is a dentist doing breast augmentation and an ob-gyn doing lipo.”  Fairbanks said that patients believe these physicians are plastic surgeons when in fact they are not unless they are board certified.  Another defendant allegedly told one plaintiff’s PR spokesman that defendants intended to run an ad campaign against plaintiffs, using billboards to target plaintiff Vincent by stating: “Did you know your Tummy Tuck was done by a dentist.”

ABPS challenged the court’s jurisdiction over it for lack of sufficient state contacts.  Although the Lanham Act doesn’t provide for nationwide jurisdiction, the Sherman Act does.  Only due process limited the exercise of jurisdiction, and in a federal question case the Fifth Amendment controls.  In such circumstances, the burden is on the defendant to show that its liberty interests actually have been infringed, and that using the plaintiff’s chosen forum will make litigation “so gravely difficult and inconvenient” as to put the defendant at a severe disadvantage.

ABPS had no offices or employees in Utah, didn’t own any property in Utah, and wasn’t registered to do business there.  It certifies doctors in the plastic surgery field, using a written exam and an oral component.  The oral component hadn’t been administered in Utah since the 1970s.  ABPS corresponds with Utah doctors about certification and mails an annual newsletter, but denied involvement with the ad campaign at issue.

The court found that ABPS had “very few” contacts with Utah.  Nonetheless, defending in Utah wouldn’t be particularly difficult, because ABPS already operated across state boundaries and had access to counsel.  “Further, given modern advances in technology and transportation, the distance from Pennsylvania to Utah does not support a finding of inconvenience.”  And judicial economy would be served by adjudicating claims against all defendants together.  Given the remedial nature of the Sherman Act, it should be construed broadly; to the extent ABPS was involved in a violation of the antitrust laws, its effects would be felt beyond the states in which ABPS concededly operated.  Thus, ABPS failed to show that its liberty interests had been infringed at a constitutionally significant level.

However, the court then dismissed the antitrust claims, because nobody wins those.

It also dismissed the Lanham Act claim, which was based on (1) “I did not know ... [m]y ‘Cosmetic Surgeon’ wasn’t a ‘Plastic Surgeon;’ “ (2) “Cheaper, Faster, Scarier;” and (3) “Lack of training can be deadly in Cosmetic Surgery.”  Plaintiffs argued that, in combination with other facts, including Fairbanks’ statement to the news, these statements falsely implied that plaintiffs weren’t qualified to perform cosmetic surgery.

But, while the billboards and internet ads were commercial speech, the statements to the news station weren’t.  The statement didn’t “eschew” the purchase of a product or service from one source over another.  (?)  It didn’t have a “clear commercial component”; it didn’t directly reference plaintiffs or promote defendants’ products over plaintiffs’. (What did it do?)  So it wasn’t commercial speech for Lanham Act purposes.

As for the billboard and internet ads, they were statements by commercial competitors designed to influence the purchasing decisions of potential cosmetic surgery patients, disseminated to a broad audience.  But they weren’t literally false: the statements just encouraged awareness on the part of people seeking cosmetic surgery—at most, they encouraged consumers to use a plastic surgeon instead of a cosmetic surgeon.  (Yes, but was the reason given for that choice factual?  I think the court wants to say this is negative puffery/not specific enough to be actionable.)  They also weren’t implicitly false.  The use of the term “Public Safety Announcement” and the seals of various plastic surgery entities “lend the ads an added layer of credibility,” but didn’t imply that plaintiffs weren’t qualified to perform cosmetic surgery.  (I’d think that safety would be a pretty important consideration for my surgeon.)  Also, the ads didn’t target plaintiffs.  Noncommercial statements by certain defendants didn’t show that plaintiffs were the focus of the covered ads.

Also, plaintiffs failed to adequately plead damages, which can’t be presumed without literal falsity.  A mere allegation of a “cooling” in business since the ad campaign began was insufficient.