Monday, March 10, 2014
Securities law and advertising law
Ann Lipton (Duke) has a post up on the import of Halliburton II, a securities case about the fraud on the market doctrine, with at least potential relevance to advertising law. Another of her posts considers the securities law distinctions among facts, opinions, and puffery. (Cert in the case she discusses was in fact granted.) Lanham Act cases distinguish between fact and nonfact. While opinions are actionable under securities law and Lanham Act cases generally put opinions on the nonactionable side of the line, the differences aren’t really as great as they might seem, as Lipton details, because courts call so much in securities an opinion. Also, the FTC and state consumer protection laws are more willing to recognize liability for "opinions," using reasoning similar to the defamation standard, which also allows liability when an opinion implies the existence of undisclosed defamatory facts. The classic situation in advertising law is when the speaker claims special expertise in an area and the audience is not sophisticated in that area, and those mostly come up in FTC cases, or in state consumer protection law cases where a pitch is individualized and thus purportedly customized for the individual’s needs.