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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 808

## Text

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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-

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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-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_1733%3A1. Public record. Not legal advice.