Luman v. Theismann, 647 Fed.Appx. 804 (9th Cir. 2016)
Plaintiffs sued NAC Marketing Company and Joe Theismann for their
advertising statements about NAC’s Super Beta Prostate product, bringing
warranty claims as well as the usual California statutory claims. Because one plaintiff’s individual claim for
monetary relief was unpaid when he joined the lawsuit, he satisfied the injury
in fact requirement and had standing to sue under Campbell–Ewald Co. v. Gomez,
–––U.S. ––––, 136 S.Ct. 663 (2016). This portion of the case was remanded for
further proceedings, though plaintiffs lacked standing to pursue injunctive relief
because they didn’t allege any intent to purchase the product in the future and
couldn’t show a likelihood of future injury.
As for Theismann, he was “merely the celebrity spokesperson
for NAC and not the seller of SBP,” the district court properly dismissed the
claims against him, given the California Commercial Code’s definition of a
seller as “a person who sells or contracts to sell goods” and a sale as “the
passing of title from the seller to the buyer for a price”; Theismann never had
or passed title to the product.
Query whether secondary liability could be appropriate in the right circumstances. What level of fault would be appropriate for a celebrity spokesperson?
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