FALSE ADVERTISING/LANHAM ACT: JURY FINDS NAME-BRAND MANUFACTURER LIABLE TO STORE-BRAND COMPETITOR FOR $13.5 MILLION

          In another example of the value of the Lanham Act to businesses whose competitors make false advertising claims, a Virginia jury has found the manufacturer of the Enfamil baby formula, Mead Johnson & Co., liable under the Act for $13.5 million in damages to a competing manufacturer of a similar, store-brand product for what the latter claimed were false statements disparaging of its own product made in the Enfamil  ad campaign.  PBM Products, LLC v. Mead Johnson Nutrition Co.,E.D.Va., No.3:09–CV–269.  The challenged ads were said to imply that Enfamil had health benefits that the store-brand product lacked, stating,  "It may be tempting to try a less expensive store brand, but only Enfamil LIPIL is clinically proven to improve brain and eye development,” and “There are plenty of other ways to save on baby expenses without cutting back on nutrition.”  The jury determined that these statements were false and misleading including in their disparagement by inference of the competing product.  In addition to jury's monetary award to the competitor, PBM Products, the judge ordered Mead Johnson to refrain from further making such claims, and ordered the company to retrieve from the public domain all advertising material containing the claims.

          The Lanham Act provides very powerful remedies to persons or entities harmed by various types of false and misleading activities pertaining to their products or services.  The most widely known provisions of the Act are those prohibiting trademark infringement; but section 43(a)(1)(B) of the Act also provides for remedies more generally when false or misleading statements are made in advertising or promotions that create a likelihood of harm to the the business of another company or person.  Under the Act such victims may obtain court orders stopping the improper activity, and also may recover very considerable monetary damages from the violator, consisting not only of any monetary harm suffered by the victim but also the profits of the violator, as well as the costs of the lawsuit.

GERMANY V. ITALY LAWSUIT TO TEST SOVEREIGN IMMUNITY RULES

          A pending a lawsuit filed late last year by Germany against Italy before the International Court of Justice provides a very interesting occasion for treatment by the Court of the rules of international law pertaining to sovereign immunity.  Germany contends that Italy is violating those rules by permitting (recently via the Italian Supreme Court) the litigation of claims and entry of judgments in Italian courts (and the registration there of foreign judgments) against Germany by Italian citizens and others involving alleged wrongful actions taken by the German military and officials during World War II, such as the forced deportation of such persons to Germany and their subjection to forced labor there during the War.  Briefing is proceeding  pursuant to a Court-ordered schedule, to culminate at the end of this year, with oral arguments and a decision possible next year.  The German contentions are stated in the German application filed with the Court, equivalent to a complaint in domestic US litigation.  Germany claims that these actions of the Italian courts violate rules of international law providing for the immunity of foreign governments in the courts of another countries.

          Historically, the main exceptions recognized to that sovereign immunity have been for claims relating to actions of foreign governments constituting commercial activity.  However, more recently, some countries have also begun to assert jurisdiction over foreign states (and exceptions to sovereign immunity) for claims related to non-commercial activities, such as alleged involvement in terrorism and violations of certain international human rights.  It is on the latter basis that Italian courts have recognized jurisdiction over the claims against Germany, even approving the attachment of Italian real estate owned by German Government entities in connection with enforcement of the judgments obtained against that Government.  A number of commentators have criticized this result, and the courts of other countries have reached the opposite result.  The ICJ itself has previously sustained a sovereign-immunity-based challenge by a country to an assertion of criminal jurisdiction over one of its top national officials by other country based on the alleged involvement of that official in gross human rights violations. E.g., Dem. Rep. Congo v. Belgium.

          The outcome of the Germany v. Italy case will be of particular interest to American international lawyers, as the United States law, particularly in the Foreign Sovereign Immunities Act, (28 USC 1602-1607) and recent amendments thereto contains assertions of extraterritorial jurisdiction, including for attachment of foreign sovereign assets, and corresponding exceptions to foreign sovereign immunity (e.g., for so-called state-sponsored terrorism) that are similar in important espects to those contained in Italian law being challenged by Germany.  An interesting analysis of the pending ICJ case is provided in a recent publication of the American Society of International Law.

SUMMARY JUDGMENT FOR FIRM CLIENTS IN CASE INVOLVING BANKING AND FINANCIAL INSTRUMENTS REGULATIONS

A Fulton County, GA Superior Court judge recently awarded summary judgment to clients of the Roger C. Wilson Law Firm on all claims by those clients in a case involving state and federal banking and financial instruments regulations, and state law rules governing administration of estates.  Judge Alford Dempsey entered summary judgment in favor of Firm clients Mark and Reid Tuvim, acting individually and as administrators of their mother's estate, ruling that a number of financial instruments made by the Tuvims' deceased mother were properly assets of the estate and did not pass to a corporate entity under purported terms of the underlying instruments.  This followed a ruling of the Georgia Supreme Court earlier this year also in favor of the Firm clients, in which the Supreme Court reversed a trial court's earlier rulings and verdict to the contrary.  (The case was transferred to Judge Dempsey after appeal, solely as part of an administrative re-allocation of cases in the Superior Court, having nothing to do with this case.)  In a ruling of first impression in important respects, a majority of the Supreme Court agreed with the Tuvims' argument that to transfer those assets to a corporate entity would in the circumstances of this case directly contravene federal and state banking and financial instruments laws.  The Court also sided with the Tuvims in their arguments that equitable doctrines such as cy pres, constructive trust, and unjust enrichment were not properly applicable to circumvent these state and federal financial rules.  After remand by the Supreme Court, further litigation ensued over certain aspects of these issues.  Upon further briefing and oral arguments, Judge Dempsey ruled in favor of the Tuvims on all claims.

TRAGIC VICTIMS OF OVER-CRIMINALIZATION AND OVER-FEDERALIZATION

Although they occurred in the summer, another review of the videotape of the U.S. Congressional hearings on over-criminalization of conduct and over-federalization of criminal law, and the heartbreaking testimony therein by several individual citizens whose lives were destroyed by a marauding federal criminal law enforcement regime, suggests the need to post a link to those hearings, which makes available the written statements submitted by prominent experts and the oral testimony given by those experts as well as, harrowingly, by two private citizens from Middle America Central Casting.  In addition to the fine analyses provided by the experts, including former high-ranking federal law enforcement officials Richard Thornburgh and Stephen A. Saltzburg, there is the unforgettable testimony of Kathy Norris (beginning at elapsed time 41:50 of the hearings video) and Krister Evertson (beginning at 55:15), the two individuals whose lives were devastated by overreaching federal law enforcement agents and prosecutors.  No one genuinely concerned about individual civil liberties in modern America can watch this testimony without a sinking stomach.

COLUMBUS LAWYER ACQUITTED OF FEDERAL CRIMINAL CHARGES

In a tremendous defense victory, a Columbus, GA lawyer has been acquitted by a federal jury of money-laundering, bribery, drug conspiracy, and other charges brought against him by federal prosecutors, after a six-day trial and twelve hours of jury deliberations in a Columbus federal court.  The jury acquitted the lawyer, Mark Shelnutt, a Columbus criminal defense lawyer, of all thirty-six charges included in the indictment, which were brought against him by prosecutors in connection with his representation of a defendant in an earlier drug case.  Mr. Shelnutt was represented by Savannah lawyer Tom Withers of the Atlanta and Savannah law firm Gillen, Withers, & Lake. See here for a full description of the case and trial. The acquittal occurred just several weeks after the Eleventh Circuit U.S. Court of Appeals ruled in favor of a defendant lawyer in similar circumstances in the case U.S. v. Velez.

WILSON WINS SUPREME COURT VICTORY FOR CLIENTS IN CASE OF FIRST IMPRESSION

The Roger C. Wilson Law Firm, PC  has won a substantial victory for several of its clients before the Georgia Supreme Court in a complex case involving federal and state banking, financial, and estate laws, Tuvim, et al. v. United Jewish Communities, et al., no. S09A0006,decided June 15, 2009. In the case, handled on appeal by Roger C. Wilson, the Supreme Court ruled in favor of the Firm clients on all claims presented there and reversed a lower court’s decisions to the contrary.
 

The principle issue in the case was the propriety of a corporation being a “pay-on-death” beneficiary on certain financial instruments (trust and deposit bank accounts and federal government bonds) so that the corporation would receive the assets from those instruments after the death of the person who created them. Roger C. Wilson argued to the Court that under both state and federal law, corporations are forbidden from being such a beneficiary on those kinds of
instruments. Consequently, he argued, upon the death of the person who created those instruments, the assets underlying them should pass not to such corporation but instead to the
individual heirs of the deceased person.

The Supreme Court agreed and ruled in favor of the Firm’s clients, the individual heirs in this case.

The case also involved additional issues under Georgia law applicable to administration of estates. The lower court had ruled at trial that even if corporations were disqualified as pay-on-death beneficiaries on the financial instruments at issue in this case, the underlying assets should nevertheless pass to the corporation involved, and not to the individual heirs, based on other doctrines of Georgia law known as cy pres and unjust enrichment. On appeal Roger C. Wilson challenged those rulings too, arguing that those doctrines are inapplicable in this case.
 
The Supreme Court agreed and ruled in favor of his clients on these issues as well. Thus, on all substantive claims and issues involved in the case on appeal, the Supreme Court agreed with
Roger Wilson’s arguments, ruled in favor of his clients, and reversed the rulings and judgments of the lower trial court to the contrary.

SECOND JURY DEADLOCKS AND FAILS TO CONVICT WILSON CLIENT IN CRIMINAL CASE

A second jury has deadlocked and failed to convict a client of Roger C. Wilson of criminal charges relating to alleged driving under the influence of alcohol in a second trial in Coweta County, Georgia State Court.  Wilson defended the same client in a previous trial for the same charges in the same court.  In that earlier trial the jury also deadlocked and failed to convict the client of the charges.  It was discovered that the earlier jury was deadlocked 4 to 2 to acquit when a mistrial finally was declared.  Notwithstanding that, the Coweta prosecutors chose to re-try the case.  It was in that re-trial, also tried by Roger C. Wilson that the second jury ended up deadlocked and thus also failed to convict the Wilson client on the same charges.

The case involved a single-vehicle accident in the late hours of the night.  Allegedly the client was tested and determined to have a blood/alcohol content of more than three times the legal limit.  The client also allegedly made incriminating statements to the investigating police officers shortly after the crash.  However, during extensive pretrial investigation by the defense, it was discovered that multiple critical items of evidence had been destroyed or lost by the police authorities involved, including all audio and video recordings of the investigation and interrogation of the client made by those authorities from multiple recording sources:  on the front of the police car, inside the car, and on the investigating officer himself.

Based on that destruction or loss of evidence by the State, Wilson sought to have excluded at trial any testimony by the police officer regarding allegedly incriminating statements by the client (because the police had destroyed all evidence by which the allegations concerning such statements could be confirmed).  However, the judge refused those requests, leaving only the possibility of  arguing to the jury regarding the unfairness of these circumstances.

Additionally, on cross-examination at trial it was established, and finally admitted by the police witness, that the written reports of the investigation contained several false statements, including regarding the identification of the defendant client.  The defense also obtained and presented to both juries important information from a witness who had arrived at the scene of the crash before police did, and from whom trial testimony was obtained that significantly supported the defense in the case.

Post-trial interviews with jurors suggested that these circumstances played a significant part in their refusal to convict the client in either of the two trials.