ONY, Inc. v. Cornerstone Therapeutics, Inc.
720 F.3d 490
2d Cir.2013Background
- ONY, Inc. and Chiesi are major surfactant producers; Curosurf and Infasurf are competing products for neonatal RDS; Premiers’ study formed the data set; physician defendants presented findings at conferences; article published in Journal of Perinatology Sept. 2011 based on that data; ONY alleges five false factual statements and deceptive promotion, plus injurious falsehood and interference claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the article’s conclusions can support Lanham Act liability. | ONY argues conclusions are false advertising. | Defendants contend statements are scientific conclusions, non-actionable. | No Lanham Act liability for non-fraudulent scientific conclusions. |
| Whether New York General Business Law § 349 claims lie from the article’s content. | ONY asserts deceptive practices in publication. | Article content is non-actionable opinion. | No § 349 liability; same reasoning as Lanham Act applies. |
| Whether tortious interference with prospective economic advantage lies from distribution of conclusions. | Disseminating article findings harmed ONY’s economy. | Distributing accurate conclusions cannot be tortious interference absent misstatement. | Dismissed; no additional misstatements alleged. |
Key Cases Cited
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (U.S. 1990) (distinguishes fact from opinion in defamation analysis)
- Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995) (summary of arguments; opinions in scientific discourse treated cautiously)
- Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724 (1st Cir. 1992) (matters capable of verification but within academic discourse)
- In re Rationis Enters., Inc. of Pan.,, 261 F.3d 264 (2d Cir. 2001) (threshold issues; pragmatism in addressing jurisdiction before merits)
- Boule v. Hutton, 328 F.3d 84 (2d Cir. 2003) (First Amendment considerations in Lanham Act interpretation)