Friday, March 14, 2008

Not the usual shark cartilage false advertising claim

Hauf v. Life Extension Foundation, 2008 WL 623802 (W.D. Mich.)

Plaintiffs Hauf and Barrow are mother and son. In 1991, a teenaged Barrow was diagnosed with brain cancer and given 3-6 months to live. Hauf procured unconventional treatment, including shark cartilage supplements. His tumor shrank. In 1993, a friend told Hauf that she could get the supplements cheaper from defendant LEF; she ordered them for about 9 months, then stopped. By 1994, Barrow fully recovered.

Plaintiffs alleged that their story attracted wide notoriety, especially among cancer patients. People from LEF received Hauf’s permission to publish a version of their story in LEF’s magazine and in its “FDA Holocaust Museum.” The story appeared in the magazine as a letter to the editor from Hauf, but Hauf alleged this was by LEF’s request and that she insisted that no monetary gain was allowed from the use of their names, likenesses, or story. In 1995, at LEF’s request, Hauf sent an update on her son, which was also published in the magazine. And in 2002, she agreed to send another update, but reiterated the no-monetary-gain limit.

In September 2005, LEF conducted a membership drive, which involved a two-page testimonial attributed to the plaintiffs and included a photo allegedly representing Hauf. The testimonial allegedly included at least three false statements: (1) “In my search to save my son’s life, someone referred me to the Life Extension Foundation;” (2) “... the people of your organization supported my search for different treatment regimens we could try;” and (3) “Through your organization, I found out about a treatment called Immune Augmentative Therapy.”

Plaintiffs sued for the usual torts.

LEF sought dismissal of Barrow’s false endorsement/association claim, arguing that the facts alleged support at most an endorsement by Hauf, not by her son. Moreover, he only appears in the materials as “Steve,” so there was no distinctiveness or consumer confusion. Barrow argued that his story is intertwined with his mother’s story and that LEF’s testimonial confused the public into thinking that a “miracle cancer survivor” and his mother endorse LEF’s products. (Hmm. So if Jon Voight endorses a product, people are likely to think that Angelina Jolie does too?) LEF responded that “a story about Barrow told by Hauf is insufficient to constitute an endorsement by Barrow of LEF’s activities,” and there’s no allegation of false statements about Barrow.

The court rejected LEF’s argument. All Barrow has to do is prove that his identity has commercial value for advertisers addressing the relevant public, and he may be able to do so among cancer patients or advocates of alternative medicine. (Comment: that’s really not all Barrow has to do. That would be a right of publicity claim. At a minimum, there’s a nominative fair use defense if the materials just describe Barrow—which at least in some circumstances could be resolved on a 12(b)(6) motion.) Barrow gets his chance to prove that the membership drive misled the public about his sponsorship or approval.
For similar reasons, his misappropriation (right of publicity) claim survived. So did his false light claim. Allegedly, given LEF’s bad reputation, being associated with it would be highly offensive to a reasonable person. The elements are “(1) the false light in which the other was placed would be highly offensive to a reasonable person; and (2) the publisher had knowledge of, or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other was placed.” Because plaintiffs alleged they don’t share LEF’s “views or goals” on alternative medicine or life extension, the court refused to dismiss the claim on a 12(b)(6) motion. For the same reasons, the court refused to dismiss the defamation claim. (I can imagine cases in which a claim that a person endorses an organization is defamatory, but I wonder if this is one of them.)

LEF also argued that Hauf’s right of publicity claim should be dismissed because her own allegations indicated she refuses to monetize her identity. The court, however, held that she could still have a pecuniary interest in her identity.

The court also refused to dismiss plaintiffs’ claim under Michigan consumer protection law, even though plaintiffs weren’t in the position of consumers. (Also, it wasn’t clear to me that membership in the LEF constituted “conduct of business providing goods, property, or service primarily for personal, family or household purposes” under Michigan law, but perhaps membership is a service.) If they suffered loss as a result of violation of the law, including mental distress, they could recover.

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