VBS Distribution, Inc., et al. v. Nutrivita Laboratories, Inc., et al.

The Lanham Act authorizes a civil cause of action for false advertising “by any person who believes that he or she is or is likely to be damaged by such act.” 15 U.S.C. §1125(a). In the decision below, the Ninth Circuit panel majority held that a plaintiff in a false-advertising claim must provide evidence of “actual injury” in order to proceed to trial. That holding creates a circuit split on the question and stands at odds with binding Ninth Circuit precedent on a question for which uniform application is essential. The panel majority issued its decision in a nonprecedential memorandum disposition. It did so in the face of: (1) a dissenting opinion on a question of law; (2) a third-party request for publication; and (3) a vote to grant rehearing by the dissenting judge. As a result, the order below sets out a legal rule that conflicts with all authority on point but does so purportedly without disturbing precedent in a one-off decision applicable to only the parties below. In short, it represents a form of appellate decision-making that bears none of its hallmarks. The questions presented are: 1. Whether a plaintiff in a false-advertising case must demonstrate “actual injury” to state a claim under the Lanham Act.