McDonald's brief and reply in 11th Circuit appeal

Prior posts here and here. Again courtesy of appellants' lawyers, I have put the McDonald's brief and the appellants' reply here. Among other issues, the parties debate whether I am an extremist pundit or a respected academic. Probably more important is McDonald's argument that intervening cause, in this case fraud by the agency McDonald's employed to administer its prize scheme, can absolve McDonald's from liability for its ads that stated (falsely, because of the fraud) that anyone had the chance to win large sums. Unsurprisingly, I am sympathetic to appellants' reply that fraud by McDonald's own agent is not the type of intervening cause that can excuse liability, even assuming that the Lanham Act recognizes an exception from its strict liability scheme for "intervening causes."

There isn't much case law on point. There may be an analogy to various rules on comparative advertising. For example, the FTC requires that comparative price advertising be based on truthful comparisons to prices that are actually being used by competitors in the area. A comparison of an electronic store's current prices for flatscreen TVs to its competitor's prices of 6 months ago, for example, is likely to be deceptive because of the substantial drop in prices over that period. This is a case where the ad is false because of an independent cause -- the change in the competitor's pricing -- and courts should have no problem holding that such an "intervening cause" cannot excuse the advertiser's liability. Cf. LensCrafters, Inc. v. Vision World, Inc., 943 F. Supp. 1481, 1491-92 (D. Minn. 1996) (defendant’s comparative “This Week’s Eyewear Price Check” using its competitor’s prices from weeks, and even months, before could be literally false, even with a small print listing of the actual survey dates).