This blog reports frequently on the troubles marketers get into with the FTC, State AGs, the NAD, under the Lanham Act, or from class actions based on making allegedly false statements about their products or their competitors’ products. A recent $113 million jury verdict in Texas reminds us that the antitrust laws can come into play as well for such conduct, if an actor with monopoly or market power can be said to be unlawfully excluding its rivals by its advertising or marketing techniques.
Retractable Technologies (“Retractable”) developed a disposable retractable point or “safety” syringe designed to reduce the risk of accidental needle sticks for health care workers and to eliminate the possibility that syringes would be reused. Among other things, these features would help reduce the risk that health care workers would be exposed to the HIV virus and that used syringes would be re-used for illegal drug use. Becton Dickinson (“BD”) possessed a dominant share of the existing conventional disposable syringe market. In response to Retractable’s introduction of the safety syringe, BD introduced its own safety syringe. Litigation involving claims of patent infringement, monopolization, restraint of trade, and false advertising ensued.
Continue Reading Ouch, Treble Damages in False Advertising Cases?