Petition for Writ of Certiorari — BMMG, Inc. v. American Telecast Corp.

Ng (\) Supreme Court, U.8.

EILCED

oe 941848 mays

Case Number

——QFRIGE-OF THE Cici.

1995

A

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1994

BMMG, INC., ROBERT 8. MANN,

AND BOB MANN’S MALIBU GYM, INC.,

Petitioners,

Vv.

AMERICAN TELECAST CORPORATION,

WALLY ARMSTRONG GOLF, INC.,

WALLY ARMSTRONG, KENNETH ROGERS AND

GEORGE SUMMERALL,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

PETITION FOR

WRIT OF CERTIORARI

ALIOTO & ALIOTO

John I. Alioto (CASB#88545)

Margaret Mullin Weems (CASB#164030)

505 Montgomery Street, Ste. 1660

San Francisco, California 94111

Telephone: (415) 434-4433

Counsel of Record

U6

QUESTION PRESENTED

i. Whether under the Lanham Act,

nonmovant plaintiff upon a motion for

summary judgment must show that any one

particular false statement in a wholly

false advertisement, e.g. an advertisement

which promotes that which does not exist,

caused it a particular lost sale before it

is entitled to an inference of a genuine

issue of material fact in connection with

its burden to show the fact of damage.

2. Whether relevant market in an

action for damages under the Lanham Act

may be determined as a matter of law.

PETITION FOR WRIT OF CERTIORARI -i-

OLENA PRET TPL ER EIEN PRIN ETO YE Pa

a ah Bhd

LIST OF PARTIES

Petitioners BMMG, Inc., Robert S&S.

Mann, and Bob Mann’s Malibu Gym, Inc. were

the plaintiffs and appellants below.

Respondents American Telecast

Corporation, Wally Armstrong Golf, Inc.,

Wally Armstrong, Kenneth Rogers, and

George Summerall were defendants and

appellees below.

PETITION FOR WRIT OF CERTIORARI -ti-

TABLE OF CONTENTS

QUESTION PRESENTED ..+ ++ + «© « « i

S20P CF DATE 6 x hele ee eee. «6G

TABLE OF CITED AUTHORITIES ... . vi

I. OPINIONS BELOW ...+ «© «© «© « « 2

ZX. Gee BR 6 GOR ce 0 8 ee 3

III. STATUTES INVOLVED ...-+ «+ « -» 4

IV. STATEMENT OF THE CASE ..

A. Overview ...+-.-

B. Statement of Facts

Cc. Proceedings Below.

. aa — °

co oe ee *

s e a o

Hub >

V. REASONS FOR GRANTING THE WRIT. . 13

A. The trial court departed

from the accepted and usual

course of judicial

proceedings on summary

judgment by raising

plaintiff’s burden’ upon

summary judgment to such an

extent as to violate

plaintiff’s guarantee of

due process and equal

protection of the laws.

The Ninth Circuit failed to

correct this error .... 14

PETITION FOR WRIT OF CERTIORARI -tii-

ee Fe eI IO Oe ER rer ee Pir ae 7? TEE FF Oe er eae Se ree ee Oe ee ee ee ee ae 4 _"

TABLE OF CONTENTS (cont.)

1. As it is a two firm market,

material misrepresentations

in respondents’ advertising

will damage petitioners .. 15

2. Petitioners offered

evidence that respondents’

deception caused their

DOLL. * aus. wet ee ee «8686

3. The Ninth Circuit created a

conflict among the Circuits

when it affirmed the trial

court’s determination of

relevant market as a matter

OS Se” RRR SO Oa er ae ee eS

B. In an unpublished opinion,

the Ninth Circuit departed

from the accepted and usual

course of judicial

proceedings by failing to

demonstrate it applied the

appropriate de nove

standard of review and by

adopting a standard of

causation in conflict with

the purposes of the Lanham

ie ao se eS a ee ee +! Ue

PETITION FOR WRIT OF CERTIORARI -iv-

TABLE OF CONTENTS (cont. )

C. These proceedings involve a

question of exceptional

importance as the Ninth

Circuit’s decision

frustrates the purposes of

the Lanham Act, to protect

the public from false and

misleading advertising. In

practical application, it

denied petitioner equal

protection under the Lanham

Act and Federal Rules... 25

VI = CONCLUSION ° . = . > 2 °° « 2 * . 27

PETITION FOR WRIT OF CERTIORARI -y-

ses St a ls Wi

TABLE OF CITED AUTHORITIES

CASES

Supreme Court Decisions

(1986) 477 U.S. 242 - + + «+ + 23-24

’

Saees AE Wee Okt ke wt ee

Circuit Court Decisions

nr

, (7th Cir. 1991)

es. go) i ea | Fae:

Electronics Corp. of Am.

, (lst Cir. 1970)

428 F.2d 191 7. i * - - * * s . 15

Harper House, Inc.

’

(9th Cir. 1989) 889 F.2d 197 .. 19

& Tel. Corp., (9th Cir. 1989)

S72 F.2d 1416 2. 2 ee ee ee 83

(9th Cir. 1989) 873 F.2d 1338 . 23

PETITION FOR WRIT OF CERTIORARI -vi-

lady at ede on si

TABLE OF CITED AUTHORITIES (cont.)

Circuit Court Decisions (cont.)

— ’

(9th Cir. 1986) 793 F.2d 1034 . 21

District Court Decisions

Grant Airmass Corp.

’

(S.D.N.¥. 1986) 645 F.Supp. 1507 14

U-Haul] Intern., Inc.

v. Jartran, Inc., (D. Arizona 1986)

See woes SEG tt tie

Btate Court Decisions

’

(1946) 33 Cal.24 80 .....-. 22

PETITION FOR WRIT OF CERTIORARI -vii-

sea somilapt RE) kee ee

Se ee Ee ee,

STATUTES

California Business & Professions

§ 17200 Ae gS Le ae ane ee ke Sa

ee: 6 + 8 6 6 68 ee

Federal Rules of Civil Procedure,

ce oe ee i ee

$6 U.8.0. S Bhan... * «2,6 © 6 «

ie Ae, oe eee ee ee en ee

28 U.8.C. § 14292 <« o'e @ @

OTHER AUTHORITIES

6 Moore’s Federal Practice

“EO > aa ee

BS eee ae ee ee

McCarthy,

(3d ed. 1995)

§ 27 et seq. - - + + © «© © »

PETITION FOR WRIT OF CERTIORARI

-viii-

Case Number

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1994

BMMG, INC., ROBERT 8. MANN,

AND BOB MANN’S MALIBU GYM, INC.,

Petitioners,

Vv.

AMERICAN TELECAST CORPORATION,

WALLY ARMSTRONG GOLF, INC.,

WALLY ARMSTRONG, KENNETH ROGERS AND

GEORGE SUMMERALL,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEAL

FOR THE NINTH CIRCUIT

Petitioners BMMG, Inc., Robert S.

Mann, and Bob Mann’s Malibu Gyn, Inc.

respectfully pray that a writ of

PETITION FOR WRIT OF CERTIORARI -f-

certiorari issue to review the judgment of

the Ninth Circuit Court of Appeal, filed

December 1, 1994, of which rehearing

and/or rehearing en banc was denied on

February 7, 1995.

I. OPINIONS BELOW

The order denying rehearing and/or

rehearing en banc is reprinte, in the

Appendix hereto as Exhibit A, at page l.

The unreported memorandum opinion of

the Ninth Court of Appeal is reprinted in

the Appendix hereto as_ Exhibit 8B,

beginning at page 2.

The unreported memorandum decision of

the trial court (Hupp, J.) is reprinted as

Exhibit CC in the Appendix hereto,

beginning at page 6.

PETITION FOR WRIT OF CERTIORARI -2-

II. JURISDICTION

The relevant claims by petitioners

were predicated on the Lanham Act. 15

U.S.C. § 1125(a) and (a)(2). The trial

court had jurisdiction pursuant to 15

U.S.C. § 129i.

On December 1, 1994, the trial court,

The Honorable Harry L. Hupp presiding,

entered judgment in favor of the

Respondents. On June 9, 1993, petitioners

filed a timely notice of appeal. On

December 1, 1994, the Ninth Circuit Court

of Appeal filed its memorandum opinion

affirming the judgment of the trial court.

Petitioners timely filed a petition for

rehearing, which was denied by order dated

February 7, 1995.

The jurisdiction of this Court to

review the iudgment of the Court of Appeal

is invoked under 28 U.S.C. § 1254.

PETITION FOR WRIT OF CERTIORARI -$-

III. STATUTES INVOLVED

The statutes and regulations

involved, Federal Rules of Civil

Procedure, Rule 56 and the _ relevant

section of Section 43(a) of the Lanham

Act, 15 U.S.C. section 1125, are reprinted

in the appendix beginning at page 27.

IV. STATEMENT OF THE CASE

A. Overview

As stated previously, the issue

presented is whether under the Lanham Act,

a plaintiff must show that at least one

particular false statement ina completely

false advertisement, e.g. an advertisement

which promotes that which does not exist,

caused a particular lost sale before it is

entitled to an inference of a genuine

issue of material fact in connection with

its burden to show the fact of damage. In

PETITION FOR WRIT OF CERTIORARI -4-

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addition, this writ presents the issue

whether relevant market in an action for

damages under the Lanham Act may be

determined as a matter of law.

B. Statement of Facts

Petitioners were the first, and until

1991, the only producer and seller of golf

instructional videotapes via television

"“infomercial."! In late 1990, petitioners

began to use sports’ celebrity

endorsements in their infomercials. As a

result they experienced increasing sales

a. An “infomercial” is a commercial,

television advertisement which contains a

show portion, designed to be of special

interest to a limited audience, e.g.

golfers who wish to learn or improve their

game, together with a commercial portion

designed to sell the product, e.g. golf

instructional videotapes. Infomercials

are a relatively new, but extremely

significant and growing, segment of the

advertising industry. Their power is

precisely from their "educational" format.

PETITION FOR WRIT OF CERTIORARI -§-

25.0 alien

and profits. Petitioners’ three

instructional tapes run approximately two

hours and could be purchased by

infomercial viewers for approximately

$45.00, including shipping and handling.

Their tapes feature golf techniques which

emphasize that a power swing’s source is

the golfer’s legs.

The infomercial business is unlike

traditional advertising in that each show

is a separate profit and loss center.

Each show is tracked to determine its rate

of return. When the media cost of the

infomercial exceeds the income derived

from the sales of the product, it is no

longer broadcast. For example, by

December 1991, petitioners’ were

experiencing a ratio of revenue to media

expenditures of approximately 2.9

(revenue) to 1 (media expenditure) in the

PETITION FOR URIT OF CERTIORARI -6-

PA ee “

local broadcast market, 2.3 to 1 in the

national cable market and 3.9 to 1 in the

regional sports market.

In December 1991, respondents began

to broadcast the infomercial entitled

"Golfing Breakthroughs of the ‘90’s" (the

"Breakthrough Infomercial"). The

Breakthrough Infomercial falsely

advertised a set of instructional golf

videotapes which were represented to be

titled "Maximizing Your Game and

Everything About It" (the "Maximizing

Tapes"). The Maximizing Tapes could be

ordered during the Breakthrough

Infomercial for three payments of

approximately $50. The Breakthrough

Infomercial made the most fundamental

false claim--that the Maximizing Tapes

existed. Respondents did not tell

Breakthrough Infomercial viewers that the

PETITION FOR WRIT OF CERTIORARI °f-

r ie

Maximizing Tapes had not yet been produced

or that respondents had not yet commited

te producing then.

In the Breakthrough Infomercial,

Respondents made numerous” additional,

intentionally false and misleading

representations. For example, the

Breakthrough Infomercial claimed that the

celebrity endorsers had seen and used the

nonexistent tapes, that the nonexistent

tapes taught a "revolutionary,"

"breakthrough" technique whereby the power

swing’s source is in the golfer’s wrists

and not the golfer’s legs, and failed to

disclose that noncelebrity endorsements

were made by individuals with close

personal and financial ties to respondent

Wally Armstrong ("Armstrong").

From December 6, 1991 through

February 8, 1992, respondent American

PETITION FOR WRIT OF CERTIORARI -8-

Telecast Corporation ("ATC") was using the

Breakthrough Infomercial to "test market"

the nonexistent Maximizing Tapes. As

respondents’ false advertisement was

broadcast, petitioners’ sales took a

dramatic plunge. As a result of this

precipitous drop, petitioners were

financially unable to purchase television

air time. Petitioners were literally

"knocked off the air" by respondents’

false advertising campaign.

For the three month period ended

March 31, 1992, during “test marketing"

and "roll out” or general broadcast, the

respondents spent $1,888,000 to telecast

the Breakthrough Infomercial. During that

same period, respondents earned $4,546,000

in net revenues from the tape sales. For

the three months ended June 30, 1992, the

respondents spent $3,642,000 to broadcast

PETITION FOR WRIT OF CERTIORARI -9-

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the Breakthrough Infomercial and earned in

excess of $7,887,000 in net revenue from

tape sales. Respondents’ $12,433,000 in

sales for the period ended June 30, 1992

represented 77% of their revenue for that

year.

Petitioners filed their Complaint on

June 2, 1992. In late July 1992,

respondent ATC edited the Breakthrough

Infomercial. Among other things,

respondent George (Pat) Summerall’s

("Summerall") endorsement that the

Maximizing Tapes “are more comprehensive,

easier to apply than any golf video J]’ve

ever seen. . ." was deleted. Respondents

2. The Maximizing Tapes were not filmed

until two or three months after the

Breakthrough Infomercial was first

telecast. When subsequently produced, the

Maximizing Tapes did not contain the

"breakthrough" techniques that the

Breakthrough Infomercial advertised.

PETITION FOR WRIT OF CERTIORARI -10-

also identified at least one noncelebrity

endorser’s relationship to Armstrong. As

a consequence, petitioners were able to

reenter the infomercial market in

September 1992 and their revenues, media

expenditures and profitability immediately

returned to its prior, successful levels.

c. Proceedings Below.

Petitioner’s complaint in the

District Court asserted violations of the

Lanham Act, Section 43(a), 15 U.S.C.

1125(a), pendent state law claims for

violations of California’s unfair

competition and false advertising statutes

(California Business & Professions Code §§

17200 and 17500) and for common law

business torts.

The respondents moved for summary

judgment on all counts.

PETITION FOR WRIT OF CERTIORARI -11-

OG a) Werden ute Srathe. 2

In opposition to the motions,

petitioners presented evidence

controverting nearly a dozen of

respondents’ allegedly undisputed facts,

thus precluding summary judgment.

The trial court, however, granted

respondents’ motion finding, "(t)he

question is to what extent did the false

statements in the endorsements hurt sales

of plaintiffs’ product." In order to

reach this conclusion the trial court

ignored evidence in the record regarding

relevant market, and determined

petitioners’ assertion defied common

sense. The district court also ignored

its own finding that respondents’

advertisement was wholly false during the

roll-out period. The state law claims

essentially followed the reasoning and the

fate of the Lanham Act clain.

PETITION FOR WRIT OF CERTIORARI -12-

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On appeal, the Ninth Circuit found

evidence that ATC’s sales caused

petitioner to lose sales. Nonetheless,

the Ninth Circuit affirmed the district

court in an unpublished opinion, and

rehearing was denied.

Petitioners now seek certiorari.

V. REASONS FOR GRANTING THE WRIT

Petitioners’ claims were

substantively meritorious. The Central

District and Ninth Circuit denied

petitioners a fair hearing. The Ninth

Circuit denied petitioners due process and

equal protection in the following

respects:

PETITION FOR WRIT OF CERTIORARI -%3-

Pe I ie Ee OT EER, Fee A eo ttl Sl

A. The trial court departed from

the accepted and usual course of

judicial proceedings on summary

judgment by raising plaintiffr’s

burden upon summary judgment to

such an extent as to violate

plaintiff’s guarantee of due

process and equal protection of

the laws. The Ninth Circuit

failed to correct this error.

Petitioners’ burden upon. summary

judgment is to show merely that there is a

genuine issue as to any material fact.

Celotex Corp. v. Catrett, (1986) 477 U.S.

317, 324. Petitioners were not obligated

to put forward all their evidence, as at

trial, to create such a genuine issue.

That lost customers were mislead by

respondents’ false advertisment "is not

the sine gua non of a Lanham Act clain,

but rather goes to the quantum of proof."

Grant Airmass Corp. v. Gaymar, (S.D.N.Y.

1986) 645 F.Supp. 1507.

PETITION FOR WRIT OF CERTIORARI -14-

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The presumption that consumers are in

fact deceived under a "single source

exception" justifies the presumption that

a competitor was injured.

1. As it is a two firm market,

material misrepresentations in

respondents’ advertising will

damage petitioners.

Petitioners and respondents were the

only two suppliers in the market for

infomercial golf instructional videotapes.

The First Circuit has found a presumption

regarding damage will apply in a _ two

source market. McCarthy, Trademarks and

Unfair Competition (3d ed. 1995) at §

27.01[4] citing Electronics Corp. of

America v. Honeywell, Inc., 428 F.2d 191.

The Ninth Circuit’s December 10, 1994

memorandum opinion also misstated the

record to say that appellants relied on a

PETITION FOR URIT OF CERTIORARI -15-

arose Citine ss Jai

legal presumption to prove the injury

element of their case. That was not so.

2. Petitioners offered evidence

that respondents’ deception

caused their harn.

Petitioners, however, did not rely

solely on a presumption. Petitioners put

forward evidence of the causal _ link

between the Breakthrough Infomercial and

their lost sales in both the testimony of

petitioner Bob Mann and through

petitioners’ expert, Dr. Thomas Scott.?

Petitioner Mann declared,

"Defendants ’ false and misleading

Breakthrough Infomercial directly caused a

substantial decrease in sales of my video

3. There was additional supporting

testimony and foundational data of

petitioners’ business entities’ financial

officer and the testimony of a certified

public accountant.

PETITION FOR WRIT OF CERTIORARI -16-

ER 6 PCa S Nit Ae ae

tapes and related products." Dr. Scott

testified, “Ty have examined the

information in this case and based on my

findings I feel that it is reasonable to

conclude that American Telecast

Corporation’s false advertisements caused

Bob Mann Sports to lose sales." The Ninth

Circuit misstates the record when it

concluded that petitioners solely relied

on comparative sales data.

3. The Ninth Circuit created a

conflict among the Circuits when

it affirmed the trial court’s

determination of relevant market

as a matter of law.

Petitioner Mann declared

In 1992, the only two participants in

the national market for the sale of

golf instructional videotapes by

television infomercial were myself

and defendants. My infomercials and

ATC’s infomercials are in direct

competitionwith each other. My

business and my reputation were

damaged by the false representations

made in the Breakthrough infomercial.

PETITION FOR WRIT OF CERTIORARI -17-

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It was not disputed that all] of

respondents’ sales during the rollout

period relied on the completely false

Breakthrough Infomercial. There was

evidence that at least gome of those sales

were at the expense of petitioners’ sales.

Were petitioners permitted to present all

of their evidence, a reasonable jury may

have inferred that the Breakthrough

Infomercial in fact injured petitioners.

In order to avoid the conclusion that

petitioners produced actual evidence of

injury resulting from respondents’ false

and misleading advertisement, the Ninth

Circuit accepted without comment the trial

court’s determination of relevant market.‘

4. The Central District opined that,

"(pjlaintiffs say that only plaintiffs and

defendants use the infomercial method of

advertising; this may be so, but that does

not create a specialized sub-market.

(continued...)

PETITION FOR WRIT OF CERTIORARI -18-

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The Ninth Circuit thus affirmed the

Central District’s finding that

petitioners were required to prove that

specific false statements of the celebrity

endorsers caused a loss of their sales.

See, Harper House, Inc. v. Thomas Nelson,

inc., 889 F.2d 197, 210 (9th Cir. 1989).

Petitioners contend that the trial

court incorrectly determined the relevant

market. Determination of the relevant

market is a factual determination properly

left for the jury. When the Ninth Circuit

affirmed the trial court on this point, it

created a conflict among the Circuits. In

Country Floors, Inc. v. Gepner, 930 F.2d

4.(...continued)

advertising; this may be so, but that does

not create a specialized sub-market.

Obviously, plaintiffs and defendants must

compete with all golf instructional

products using differing media of

advertising."

PETITION FOR WRIT OF CERTIORARI -19-

1056 (7th Cir. 1991), the Seventh Circuit

found in a Lanham Act action that what is

the relevant market should not. be

determined by the trial court on summary

judgment “because it presents a genuine

issue of material fact." As such,

determination of relevant market should be

left to the jury. Jd. at 1066.

B. In an unpublished opinion,

the Ninth Circuit departed

from the accepted and usual

course of judicial

proceedings by failing to

Gemonstrate it applied the

appropriate de novo

standard of review and by

adopting a standard of

causation in conflict with

the purposes of the Lanham

Act.

The Ninth Circuit failed to

distinguish between the procedural posture

of parties before it in Harper House and

Jartran and petitioners. Both Harper

PETITION FOR WRIT OF CERTIORARI -20-

House and Jartran came before the Ninth

Circuit after trial. The Ninth Circuit

failed to permit petitioners the benefit

of precedent. The Jartran presumption

creates the inference on summary judgment

that respondents’ alleged deception caused

petitioners’ injury.

The expenditure by a competitor or

substantial funds in an effort to

deceive consumers and influence their

purchasing decisions justifies the

existence of a presumption that

consumers are, in fact, being

deceived.

U-Haul Intern., Inc. v. Jartran, Inc., 793

F.2d 1034, 1041 (9th Cir. 1986).

Likewise, the presumption should be

applied on summary judgment to the fact of

damage. As in tort law, this is a just

result because of the

PETITION FOR WRIT OF CERTIORARI -2t-

practical unfairness of denying

the injured person’ redress

simply because he cannot prove

how much damage each did, when

it is certain that between them

they did, let [the tortfeasors]

be the one to apportion it among

themselves. Since, then, the

adifficulty of proof is the

reason, the rule should apply

whenever the harm has plural

causes and not merely that they

acted in concert

Summers v. Tice, (1948) 33 Cal.2d 80, 85-

86.

In fact, all respondents’ sales in

the rollout period were based upon a lie.

Petitioners lost sales during that period.

There was admissible evidence that those

two events were causally connected. It

was incorrect upon motion for summary

judgment for the trial court to impose the

additional burden upon petitioners to

prove what properly should have been left

for the determination by a jury upon

weighing the evidence. Anderson v,.

PETITION FOR WRIT OF CERTIORARI -22-

Liberty Lobby, Inc., (1986) 477 U.S. 242,

252.

In sum, on a motion for summary

judgment the responsibility of

the district court is to

determine if there are triable

issues rather than to try those

issues and make findings based

on the affidavits and other

materials accompanying the

motion.

Country Floors, Inc. v. Gepner, supra, 930

F.2d at 1062.

Grants of summary judgment are

properly viewed de novo. Kruso _v.

International Tel. & Tel. Corp., 872 F.2d

1416, 1421 (9th Cir. 1989), cert. denied,

110 §.Ct. 3217 (1990). The evidence must

be viewed in the light most favorable to

petitioners to determine whether there are

any genuine issues of material fact and

whether the district court correctly

applied the law. Tzung v. State Farm Fire

& Cas. Co., 873 F.2d 1338, 1339-40 (9th

PETITION FOR WRIT OF CERTIORARI -3-

Cir. 1989). All inferences of fact must

be resolved against the movant for summary

judgment [respondents] and in favor of the

party opposing the motion [appellants). 6

Moore’s Federal Practice, Part 1, q

56.15[3}) at 56-255, 6 Moore’s Federal

Practice, Part 2, ¢ 56.27[{1] at 56-854.

The Ninth Circuit’s December 1, 1994

memorandum opinion does not indicate that

the Court applied the appropriate de novo

standard of review. The Court’s

endorsement of the trial court’s failure

to resolve issues of fact in favor of BMMG

on summary judgment--despite the presence

of expert testimony on causation,

supported by lost profits’ evidence, and

its erroneous application of Harper House

and Jartran II suggests it adopted a

standard of causation in conflict with the

purposes of the Lanham Act.

PETITION FOR WRIT OF CERTIORARI ~24-

c. These proceedings involve a

question of exceptional

importance as the Ninth

Circuit’s decision frustrates

the purposes of the Lanham Act,

to protect the public from false

and misleading advertising. In

practical application, it denied

petitioner equal protection

under the Lanham Act and the

Federal Rules.

The infomercial industry is rapidly

growing in importance as measured by

dollar volume and consumer influence. The

Lanham Act is a consumer protection law.

It is analogous to the Sherman Act. Like

the Sherman Act, the Lanham Act seeks to

protect consumers by preserving free and

fair competition in the market. To that

end, these laws properly restrict sharp

business practices. The goal of promoting

competition is not advanced, however, if

the courts are permitted to abandon their

mandate to check outlawed activity.

PETITION FOR WRIT OF CERTIORARI -B-

Congress has determined that false

advertising is a particularly detrimental

and egregious practice. The Ninth

Circuit’s decision seeks to undo the

Lanham Act in a particularly cowardly

fashion--by unpublished opinion. Further,

the Ninth Circuit sanctioned the trial

court’s disregard of this Court’s

instructions regarding the proper

administration of "summary judgment."

Certainly the scales of conscience

and fair dealing are corrupted when a

large and powerful participant in the

infomercial market is permitted to profit

by an intentional fraud. As the Jartran

trial court put it

to embrace its position would be to

reward a commercial privateer and to

encourage further predatory

advertising practices in the business

world.

PETITION FOR URIT OF CERTIORARI -26-

U-Haul Intern., Inc. v. Jartran, Inc.,

(D.Arizona 1986) 601 F.Supp. 1140, 1145.

VI. CONCLUSION

By their nature these are questions

where uniformity of decision is of great

importance and the same questions has

repeatedly been before the lower courts.

Petitioner has been denied procedural and

substantive rights. A conflict has been

created among the Circuits and federal law

has been ignored.

PETITION FOR WRIT OF CERTIORARI -27-

For all of the above-stated reasons,

petitioners respectfully requests that a

writ of certiorari issue, and that the

decision of the Ninth Circuit be subject

to full consideration and appropriate

disposition by this Court.

yy ko

/ ALIOTO & ALIOTO

John I. Alioto (CASB# 88545)

Margaret Mullin Weems (CASB# 164030)

505 Montgomery Street, Ste. 1660

San Francisco, California 94111

Telephone: (415) 434-4433

Counsel of Record

PETITION FOR WRIT OF CERTIORARI -2B-