The PROCTER & GAMBLE COMPANY and The Procter & Gamble Distributing Company, Plaintiffs-Appellants, v. AMWAY CORPORATION, et al., Defendants, Amway Corporation; The Amway Distributors Association Council; Ja-Ri Corporation; Donald R. Wilson; Wow International, Inc.; Wilson Enterprises, Inc.; Ronald A. Rummel, Individually Doing Business as Rummel Enterprises; Kevin Shinn; Randy Haugen; Freedom Associates, Inc.; Freedom Tools, Inc.; Randy Walker; Walker International Network; Gene Shaw; John & Jane Does 6-10, Business Entities; Dexter Yager, Sr.; Birdie Yager; and D&B Yager Enterprises, Inc., Defendants-Appellees.
No. 99-20590.
United States Court of Appeals, Fifth Circuit.
Feb. 14, 2001.
242 F.3d 539
Before SMITH and DENNIS, Circuit Judges, and ROETTGER,* District Judge. JERRY E. SMITH, Circuit Judge.
* District Judge of the Southern District of Florida, sitting by designation.
Nonetheless, as the majority makes clear, it is for the hearing officer to weigh and interpret the evidence and make credibility determinations. Here, as the majority explains, the hearing officer weighed the evidence and decided to believe the original report. I cannot conclude that it was unreasonable for him to have interpreted the testimony not to undermine the original report. In context, that report is not so devoid of any reliability or authenticity that it could not provide “some evidence” upon which to base the decision.
For these reasons, I concur.
Charles L. Babcock (argued), David T. Moran, Carl C. Butzer, Jackson & Walker, Dallas, TX, Richard Earl Griffin, Jackson & Walker, Houston, TX, for Amway Corp.
William J. Abraham, Rick Joseph Abraham, Abraham Law Offices, Columbus, OH, Edward B. McDonough, Jr., Mark Stephen Dube, McDonough & Associates, Houston, TX, for Amway Distributors Ass‘n Council.
Robert L. DeJong, Miller, Canfield, Paddock & Stone, Grand Rapids, MI, for Ja-Ri Corp.
Byron George Lee, Kim G. Altsuler, Allison Linneman Strawn, Coats, Rose, Yale, Holm, Ryman & Lee, Houston, TX, for Donald R. Wilson, Wow Intern., Inc., Wilson Enterprises, Inc., Ronald A. Rummel, Randy Haugen, Freedom Associates, Inc., Freedom Tools, Inc., Randy Walker, Walker Intern. Network, Dexter Yager, Sr., Birdie Yager and D&B Yager Enterprises, Inc.
Warren Royal Taylor, Taylor & Taylor, Houston, TX, for Kevin Shinn and Gene Shaw.
JERRY E. SMITH, Circuit Judge:
The Procter & Gamble Company (“P&G“) appeals the dismissal of its lawsuit against Amway Corporation and other defendants for defamation, fraud, and violations of the Lanham Act, RICO, and
I.
P&G, a manufacturer and distributor of numerous household products, has been plagued by rumors of links to Satanism since the late 1970‘s or early 1980‘s. The most common variant of the rumor is that the president of P&G revealed on a television talk show that he worships Satan; that many of P&G‘s profits go to the church of Satan; and that there is no harm in such disclosure, because there are no longer enough Christians left in the United States for such devilish activities to make a difference. The rumor often was circulated in the form of a written flier that listed numerous P&G products and called for a boycott.
P&G has spent considerable time and money unsuccessfully trying to determine the original source of the rumor and to squelch it. P&G has not been able to prove how the rumor began, although it asserts here that the rumor was either started or spread by Amway1 or its distributors in the 1980‘s. P&G offered no proof that Amway originally started the rumor, but it did offer evidence showing that various Amway distributors spread it in the 1980‘s. Rather than suing Amway at that time, however, P&G worked with Amway‘s corporate headquarters, which promised to help stop the rumor.
The rumor re-surfaced on April 20, 1995, when an Amway distributor named Randy Haugen forwarded it to other Amway distributors via a telephone messaging system for Amway distributors known as “AmVox.”2 Haugen is a highly successful
There is no evidence that Haugen knew the rumor was false when he spread it; in fact, he testified that he believed it to be true. The rumor circulated in his and other distribution networks. Some Amway distributors printed fliers containing the rumor, circulating them to consumers, with a message saying, “We offer you an alternative.” The fliers also gave contact information for Amway distributors. Although P&G has received complaints and inquiries about this rumor for the last twenty years, it offered evidence to show that, at the time the rumor was circulating on AmVox, the number of complaints and inquiries increased substantially in the states in which the majority of Haugen‘s distributors live.3
Within days of the initial message containing the rumor, Haugen sent a short retraction via AmVox.4 Shortly thereafter, an Amway representative contacted Haugen and delivered a copy of a P&G “truth kit,” which explains that the rumor is false. The Amway representative asked Haugen to issue another retraction via AmVox. Using the AmVox system, Haugen then sent out a second, more detailed, retraction.5 Despite Haugen‘s retractions,
II.
In response to the spread of the rumor among Amway distributors, P&G filed a lawsuit in each of two federal district courts. In 1995, in Utah, it sued Haugen, Freedom Associates, Inc., and Freedom Tools, Inc., for spreading the Satanism rumor, claiming it lost customers as a result of the actions of Haugen and other Amway distributors. P&G later joined Amway, Randy Walker, and Walker International Network as defendants. In 1996, P&G filed a second amended complaint containing causes of action for defamation, common-law unfair competition, violations of the Utah Truth in Advertising Act, tortious interference, negligent supervision, violations of Lanham Act § 43(a),
One day after its third amended complaint was dismissed in the Utah action, P&G filed the suit at issue in this appeal, in Texas. This suit is based on the same transactions, and involves substantially the same parties, as does the Utah suit. It names Haugen, Amway Corporation, ADAC, and various other Amway Distributors (all hereinafter referred to as “Amway“) as defendants.6 The Texas complaint sought remedies for the alleged conduct of defendants in (1) spreading the Satanism rumor, (2) disparaging P&G‘s Crest toothpaste, and (3) allegedly harming sales of P&G‘s products by inducing people to become Amway distributors and consumers by luring them into an illegal pyramid scheme and misleading them as to the financial rewards of selling Amway.
P&G asserted various causes of action in
The Texas district court granted Amway‘s
P&G did not argue that repetition of the Satanism rumor constituted misrepresentation of its commercial activities until its
In March 1999, the Utah court granted summary judgment to defendants on the defamation per se, vicarious liability, and negligent supervision claims. A few days later, before the Texas case went to trial, the Utah court entered a final judgment dismissing all of P&G‘s claims.
After the final judgment from the Utah court, Amway moved for judgment as a matter of law (“j.m.l.“) in the Texas case. The district court denied the motion because it was filed after the deadline for pre-trial motions. At the close of P&G‘s case, Amway again moved for j.m.l. The court granted the motion and dismissed the § 43(a) claim against Amway, Walker, and Haugen based on the res judicata effect of the Utah court‘s decision. The Texas court dismissed the § 43(a) claim for disparagement of commercial activities against the remaining defendants (and against Amway, Walker, and Haugen for purposes of vicarious liability), because it found that P&G had not presented sufficient evidence of “actual malice,” which the court held to be a requirement of § 43(a) suits brought by “limited-purpose public figure” plaintiffs.9 The court also dis-
After oral argument had been heard in this court, the Tenth Circuit reversed the Utah summary judgment. P&G v. Haugen, 222 F.3d 1262 (10th Cir.2000). The Tenth Circuit addressed P&G‘s misrepresentation of commercial activities claim, even though P&G had not timely raised it before the Utah district court. The Tenth Circuit explained its willingness by stating that where an issue is purely a matter of law, its resolution is certain, and public interest is implicated, it should be addressed on appeal. Id. at 1271. The Tenth Circuit concluded that the repetition of the Satanism rumor raised a claim under the “commercial activities” prong of the Lanham Act, and it therefore reversed and remanded as to the Lanham Act claim and reversed the dismissal of P&G‘s Utah state law tortious interference claim. Id. at 1280.
III.
The res judicata effect of the Utah judgment is a question of law that we review de novo. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir.1997). This question—to which both sides direct most of their briefs—has largely been answered for us by the Tenth Circuit.
There is no res judicata effect from the Utah case. The final judgment has been reversed and remanded, and therefore no judgment blocks the Texas case from proceeding. Of course, at the time the Texas court dismissed, there was a final judgment in Utah, so the Texas court did not err. Now that the final judgment has been reversed and remanded, however, res judicata no longer binds us.
Amway argues that res judicata, or, alternatively, issue preclusion, settles this case, despite the Utah remand. It contends that the Tenth Circuit‘s holding that it is not vicariously liable under Utah law for the acts of its distributors precludes liability under the Lanham Act in the Texas suit. This is a bold assertion, for the Tenth Circuit did not reach this conclusion, but, instead, “le[ft] it to the district court to consider whether P&G has met those elements of a § 43(a) Lanham Act claim not before us in this appeal.” Haugen, 222 F.3d at 1276. Likewise declining to let a decision on state law vicarious liability determine the outcome of a Lanham Act claim, we conclude that neither res judicata nor collateral estoppel bars the Lanham Act claim and that the Texas case may proceed.10
IV.
P&G avers that the district court erred in ruling that P&G was required to prove “actual malice”11 to prevail on its § 43(a) claim for disparagement of commercial activities. The actual-malice standard has developed in cases involving defamation of public figures. P&G argues that strict liability and not actual malice applies in a commercial speech12 case under the Lanham Act.
Thus, to determine what P&G is required to prove to prevail on its § 43(a) claim that Amway misrepresented its associations and commercial activities, we first must determine whether the spreading of the false Satanism rumor is “commercial” speech. If we decide it is, we must decide whether the fact that the false speech was made about a “limited-purpose public figure” on an issue of public concern brings the actual-malice standard into play. This effectively would trump the traditional view that there is no First Amendment protection for false commercial speech. We review these questions of law de novo. United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir.1997).
A.
We begin by examining what is meant by, and what protections extend to, “commercial speech.” First, we consider whether the commercial speech line of cases, which mainly deals with government
As we do now, the court treated the issue as one of first impression. It began by noting that under the First Amendment, the correctness of ideas is judged not by courts, but in the marketplace of ideas.15 With regard to commercial speech, however, the court “believe[d] the subordinate valuation of commercial speech is not confined to the government regulation line of cases[,]” but instead should extend to defamation and Lanham Act cases as well. Id. at 932. The court noted that the Supreme Court
on many occasions has recognized that certain kinds of speech are less central to the interests of the First Amendment than others.... In the area of protected speech, the most prominent example of reduced protection for certain kinds of speech concerns commercial speech. Such speech, we have noted, occupies a “subordinate position in the scale of First Amendment values.” Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). It also is more easily verifiable and less likely to be deterred by proper regulation. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771-772, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976). Accordingly, it may be regulated in ways that might be impermissible in the realm of noncommercial expression. Ohralik, [436 U.S.] at 456; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm‘n of New York, 447 U.S. 557, 562-63, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980).
U.S. Healthcare, 898 F.2d at 932 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758 n. 5, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985)) (some ellipses and brackets added). Based on this language, the U.S. Healthcare court concluded that the lesser protection commercial speech receives from direct government regulation also must apply to private actions for defamation and the like.
We agree. If commercial speech receives less protection from government regulation, then it also should receive less protection from private suits, which are not much more likely than are government regulation to infringe on those values the First Amendment seeks to protect. Furthermore, private suits can be a form of government regulation.
2.
Having determined that the commercial speech line of cases should apply here, we examine it and the characteristics of commercial speech it reveals. We also review the instant facts to determine whether they meet the characteristics that the Supreme Court has said define commercial speech.
In Virginia State Board, the Court finally decided that commercial speech should receive some protection, holding that a state may not prohibit pharmacists from truthfully advertising the prices at which they sell drugs. The Court suggested, however, that instead of the strict scrutiny with which courts review most restrictions on speech, a lower standard of scrutiny is appropriate for commercial speech. The Court noted that false or misleading commercial speech should receive no protection,18 because commercial speech merely gives information to consumers about a producer‘s goods, and any false information either has no value or is harmful.
The Court since has held that speech is commercial when it is an “expression related solely to the economic interests of the speaker and its audience.” Central Hudson, 447 U.S. at 561 (citing Va. State Bd., 425 U.S. at 762 (other citations omitted)). Additionally, in defining something as commercial speech, the Court says we are to rely on “the ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Ohralik v. Ohio State Bar Ass‘n, 436 U.S. 447, 455-56, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978).
Further, although Amway argues that the Satanism rumor is a matter of public concern, which should make the speech noncommercial, the Court “ha[s] made clear that advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech.” Bolger, 463 U.S. at 68 (quoting Central Hudson, 447 U.S. at 563, n. 5). Thus, in Bolger the Court held that informational pamphlets mailed by a condom manufacturer directly to the public constituted commercial speech, even though the pamphlets spoke about matters of public concern.19
If we examine the facts of this case in light of these four characteristics, we see that the speech at issue here has some but not all of the characteristics typically found in commercial speech. The first characteristic—that commercial speech makes a qualitatively different contribution to the exposition of ideas—does not shed much light on whether the speech in this case is commercial.
It might be that spreading the Satanism rumor does not contribute to the exposition of ideas. Despite the falsity of the rumor, however, it touched on the type of issues that are at the heart of First Amendment protections, namely: religious issues and issues of how corporations act and influence society. Further, it is uncertain whether the speech was related solely to the economic interests of the speaker or whether, instead, Haugen and other distributors were sincerely, albeit mistakenly, discussing the rumor.
The second characteristic—that the speaker‘s economic motivation makes the speech more durable—favors classifying Amway‘s speech as commercial. If the Satanism rumor were true, it is doubtful that the requirement to verify it before repeating it would stop distributors from spreading the rumor about one of their competitors. We have some reservation about stating this too strongly, however, for we can imagine cases in which employees of one company might legitimately but mistakenly repeat and discuss news about
The third characteristic—that competitors have extensive knowledge of their market and products—applies imperfectly to these facts. Amway has extensive knowledge of its market and products and is in a good position to know the acts of its competitors. In this case, however, the rumor discusses P&G‘s use of its profits and its charitable giving—topics about which Amway is likely to know less because they do not relate directly to P&G‘s products or sales methods. Nevertheless, if Haugen had checked with Amway, he could have verified that the rumor was false, because Amway had been aware of its falsity since the 1980‘s.
The fourth characteristic—a parity of constitutional protection for commercial speech would invite dilution of the First Amendment—is, as the Third Circuit noted, an extrinsic reason that cannot be applied to the facts of any one case. We accordingly do not discuss it.
In U.S. Healthcare, 898 F.2d at 935, the court determined that the speech had all the characteristics of commercial speech. The court concluded that
[b]ecause the thrust of all of the advertisements is to convince the consuming public to bring its business to one of these health care giants rather than the other, there is no doubt that the advertisements were motivated by economic self interest.... [W]e believe it would have to be a cold day before these corporations would be chilled from speaking about the comparative merits of their products.
Id. The court added that
these are advertisements for products and services in markets in which U.S. Healthcare and Blue Cross/Blue Shield deal—and, presumably, know more about than anyone else. The facts upon which the advertisements are based—comparative price, procedures, and services offered—are readily objectifiable. These advertisements were precisely calculated, developed over time and published only when the corporate speakers were ready. Consequently, the advertisements were unusually verifiable.
Unlike the situation in U.S. Healthcare, the testimony here is that at least some of the speech at issue was made impulsively, without time to verify the facts. The U.S. Healthcare court stated that “[i]t is important to note that we do not have a situation in which a corporation addresses an issue of public concern involving a competitor, but does so with speech that is neither commercial nor chill resistant.” Id. In the instant case, the primary question is whether Amway‘s distributors addressed an issue of public concern involving a competitor with speech that was neither commercial nor chill-resistant.
Our analysis of the general characteristics of commercial speech and the reasons behind its less protected status demonstrates that the speech here does not sort cleanly into either category: commercial or noncommercial. Although Supreme Court precedent and the Third Circuit‘s thoughtful analysis of what is commercial speech are helpful, we still are left with a difficult issue.
We now apply the test the Court has set out to determine whether a specific instance of speech is commercial. In Bolger, the Court recognized three factors that help determine whether speech is commercial: (i) whether the communication is an advertisement, (ii) whether the communication refers to a specific product or service, and (iii) whether the speaker has an economic motivation for the speech. If all three factors are present, there is “strong support” for the conclusion that the speech is commercial. Bolger, 463 U.S. at 67.
Here we consider the Bolger factors in reverse order25 and conclude that the third—the motivation of the speaker—is determinative. This factor has not yet been decided by the trier of fact, so we remand for that to be done.
The second factor is easily satisfied—the message did refer to specific products of P&G‘s. The first factor—whether the speech is an advertisement—seems to collapse into the third factor in this case. Certainly the repetition of the rumor via AmVox was not an advertisement in the classic sense, but whether it could be considered as a negative advertisement against P&G seems to depend on the determination of the third factor—whether the speaker had an economic motivation for the speech. If Haugen or others who repeated this rumor did have economic motivations, then the message resembles an advertisement seeking to encourage downline distributors to eschew P&G and buy Amway. If the motivation was not economic, then this looks more like a case of individuals’ repeating false speech on a matter of public concern.
This question of the speaker‘s motivation will also help to clear up the difficulty in determining whether the characteristics of commercial speech summarized in U.S. Healthcare were present here. If the speakers were economically motivated, then issues of the quality of the speech, its durability, and the knowledge the speakers had of the relevant market and products become both more relevant and easier to determine.
Thus, on remand, if the trier of fact finds that the motivation behind the Amway distributors’ repetition of the rumor to other distributors was not economic, the speech is not commercial, and there can be no Lanham Act claim. On the other hand, if an economic motivation is found, the speech is commercial, and a violation of the Lanham Act may be found.26
The question whether an economic motive existed is more than a question whether there was an economic incentive for the speaker to make the speech;27 the Bolger
This does not mean that whenever the primary motivation for speech is economic, the speech is commercial.29 As the Court said in Bolger, finding all three factors merely provides “strong support” for the proposition that the speech is commercial. The difference between commercial speech and noncommercial speech is, after all, “a matter of degree.” City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 423, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We can well imagine cases in which a speaker‘s primary motivation is economic, but the speech nonetheless is protected.30
Also, in determining whether there was an economic motivation to the repetition of the rumor, the finder of fact is free to take into account, among other things, Amway‘s unique structure. Pertinent is the fact that Amway distributors make money not simply by selling Amway products to the public, but also by recruiting other distributors into the organization, who become “downline” distributors, and upon whose sales the “upline” distributors then get commissions.
This system gives the distributors a motivation not just to sell Amway products, but also to recruit distributors and to encourage their sales. Thus, when Haugen and other Amway distributors spread the Satanism rumor via AmVox to their downline distributors, they were not simply repeating a rumor to co-workers or fellow independent distributors; they were repeating a rumor to persons analogous to employees,31 in whose motivation and sales they have a direct interest. These facts, and all other relevant evidence, of course, may be used by the finder of fact in determining whether, as a matter of fact, those who circulated the Satanism rumor via AmVox acted out of economic motivation.
B.
Notwithstanding Supreme Court precedent holding that false commercial speech
That standard was developed in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There, a group of black clergymen ran an advertisement in the Times in the form of an editorial; they spoke of the civil rights demonstrations by black students then occurring in the South and of the intimidation and violence practiced against the protestors and against Dr. Martin Luther King, Jr. The advertisement complained of the police responses to the demonstrators and asked for financial donations in support of the student movement, the struggle for the right to vote, and the legal defense of Dr. King. L.B. Sullivan, the Montgomery commissioner in charge of police, sued the clergymen and the Times for civil libel, arguing that the actions ascribed to the “police” were necessarily imputed to his leadership and that some of the accusations were false. Sullivan further argued that the Times could have discovered that the allegations were false by checking its files of previously published articles.
The Court agreed that references to the police could be imputed to Sullivan and that some of them were false. Nevertheless, the Court held that proof of more than factual inaccuracies was required to prevent speech protected by the First Amendment from being “chilled.” The Court held:
The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice“—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.
Three years later, the Court extended the protection of the actual malice standard from public officials to public figures in the companion cases of Curtis Publishing Co. v. Butts and Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), the Court explained why the actual-malice standard is appropriate in defamation cases involving public officials or public figures as plaintiffs. The Court gave the reasons for the lower level of protection for these plaintiffs:
Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.
Id. at 344 (footnote omitted).
A plaintiff becomes a general purpose public figure by attaining pervasive
We are powerless to decide whether this is one of those “exceedingly rare” cases in which plaintiff P&G involuntarily has become a public figure, because that issue has not been properly raised on appeal. In its opening brief, P&G noted that the district court found it to be a “limited-purpose public figure” for the purpose of analyzing whether it must prove actual malice in its § 43(a) claim; that court decided that the rumor is an issue of public concern and has been associated with P&G long enough to render P&G a limited-purpose public figure for purposes of discussion of the rumor. P&G did not assign error to this ruling in its initial brief but, instead, asserted that the repetition of the Satanism rumor constituted commercial speech to which the New York Times actual malice standard does not apply.
Amway correctly notes that because P&G did not dispute this ruling, it is now bound thereby for purposes of this appeal. Although in its reply brief, P&G states that it “does not concede that it is a ‘public figure’ for purposes of defendants’ misrepresentations,” an “appellant abandons all issues not raised and argued in its initial brief on appeal.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994) (declining to address argument discussed only in appellant‘s reply brief). Thus, we assume for purposes of this appeal, without deciding the issue as a matter of law, that P&G is a limited-purpose public figure with regard to the Satanism rumor.
Amway makes two arguments in support of its theory that P&G must prove actual malice. First, Amway turns to the well-reasoned opinion in National Life Insurance Co. v. Phillips Publishing, Inc., 793 F.Supp. 627, 647 (D.Md.1992), in which the court noted that there is a tension in the law regarding the treatment of false speech: “While defamation tolerates some false statements, in order to give the First Amendment the ‘breathing space’ it requires; commercial speech does not forgive false speech so easily.” Id. The court opined that this tension should be considered rather than ignored when dealing with cases of false commercial speech about public figures.33
The National Life court reasoned that denying constitutional protection to all false commercial speech ignores the rationale of Gertz: that the need to protect one from false or misleading speech varies, depending on whether he is a private or public figure. The court pointed out that “[e]ven U.S. Healthcare recognized that a state has only a ‘limited’ interest in compensating public persons for injury to reputation by defamatory statements, but has a ‘strong and legitimate interest’ in compensating private persons for the same injury.” National Life, 793 F.Supp. at 648 (quoting U.S. Healthcare, 898 F.2d at 930).34 Thus, the court concluded that a
Amway‘s second argument is that the use of the actual-malice standard in commercial speech cases involving public figures avoids unrealistically treating commercial and noncommercial speech as though they do not overlap. Amway contends that such treatment ignores that political speech can arise from commercial motives or may address areas of great public concern.35
Although Amway raises legitimate points about the overlap between commercial and noncommercial speech, between economic and non-economic motivation for speech, and about the variable interest a state has in protecting a plaintiff‘s reputation depending on the plaintiff‘s status as a public or private figure, Supreme Court precedent prevents us from importing the actual-malice standard into cases involving false commercial speech.
To begin with, the Court has rejected attempts to blur the line between commercial speech and other types of expression. In Central Hudson, the majority rejected the rationale set forth in a concurrence that “[a]pparently ... would accord full First Amendment protection to all promotional advertising that includes claims ‘relating to ... questions frequently discussed and debated by our political leaders.’ ” Id. at 563 n. 5 (quoting id. at 581 (Stevens, J., concurring)). In rejecting this approach, the majority reasoned that “we think it would blur further the line the Court has sought to draw in commercial speech cases.” Id.36
Further, the Court has consistently said that speech protected in one context is not protected when the purpose of the speech is commercial. In Bolger, the Court held that “advertising which ‘links a product to a current public debate’ is not thereby entitled to the constitutional protection afforded noncommercial speech.” 463 U.S. at 68 (quoting Central Hudson, 447 U.S. at 563 n. 5). “Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues.” Id.
Somewhat more recently, in Zauderer v. Office of Disciplinary Counsel of Supreme Court, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985), the Court affirmed its Central Hudson and Bolger holdings. Zauderer was a lawyer who had been sanctioned by the disciplinary committee of his state supreme court for using deceptive newspaper advertisements. He claimed that his speech was protected because some of the advertisements contained statements regarding the legal rights of persons injured by a contraceptive device. The Court held that these statements “in another context, would be fully protected speech,” but “[t]hat this is so does not alter the status of the advertisements as commercial speech.” Id. at 637 n. 7.
Central Hudson, Bolger, and Zauderer, combined with the Court‘s plain statements that false commercial speech receives no protection,37 foreclose us from importing the actual-malice standard from defamation into the law of false commercial speech. Thus, if the trier of fact determines that the Amway distributors’ motives in spreading the Satanism rumor were economic and that the speech therefore was commercial, this false commercial speech cannot qualify for the heightened protection of the First Amendment, so P&G is not required to show actual malice in proving its Lanham Act claim.
The Tenth Circuit concluded similarly in this case, holding that the AmVox message was economically motivated and rejecting Amway‘s argument that such commercial speech should receive higher protection because it regarded a matter of public concern. P&G v. Haugen, 222 F.3d at 1275.
In the present case, we are likewise dealing with a message containing both a noncommercial, “theological” component and a commercial component. As Bolger and Fox indicate, however, the bare fact that the subject message contains a “theological” component is insufficient to transform it into noncommercial speech. If appellees had argued that a significant theological, political, or other noncommercial purpose underlay the subject message, the message might be accorded the substantially greater First Amendment protections enjoyed by “core” religious speech and the other varieties of noncommercial First Amendment speech such as political speech. See, e.g., Pleasant v. Lovell, 876 F.2d 787, 795 (10th Cir.1989) (holding “that the presence of some commercial activity does not change the standard of first amendment review” where the organization engaged in such activity had a clear political purpose (citing In re Grand Jury Proceeding, 842 F.2d 1229, 1235 (11th Cir.1988))). Significantly, appellees in the instant case have made no such claim. At no time have they argued there is any theological purpose underlying the subject message or its dissemination via their AmVox system.
Amway has argued here, as it apparently did not in the Tenth Circuit, that there was a theological concern underlying the speech. We thus are foreclosed from merely calling the speech commercial. Regardless, both the Tenth Circuit and this court are using the same test to determine commercial speech, and both reject Amway‘s argument that the actual-malice standard should apply.
We recognize that alternative methods of reconciling the law of commercial speech with that of defamation have been suggested. Professor Langvardt has suggested one tempting alternative. He posits that courts should adopt a negligence standard for private actions for false com-
Langvardt agrees with our analysis that the full protection from chill that the actual malice standard gives to core First Amendment speech is inappropriate in the context of less-protected commercial speech. He argues that, instead, a standard should be used that gives commercial speech an intermediate level of protection from chill. In his view, “negligence effectively provides an intermediate standard that falls between the polar extremes of actual malice and strict liability.” Langvardt, 78 MINN. L. REV. at 393. Under such a regime, plaintiffs would be required to prove “that the defendant failed to use the degree of care a reasonable person would have exercised, under the circumstances, to ascertain the truth or falsity of the statement before making it.” Id. at 393. To Langvardt, the use of a negligence standard recognizes that commercial speech is more durable than noncommercial speech, but it still prevents the former from being overly chilled by the possibility of private suits for strict liability under the Lanham Act.39
Langvardt would avoid Supreme Court precedent stating that false commercial speech receives no protection under the First Amendment by restricting this holding to the direct-government-regulation line of cases from which it sprang. He points out that the Court has not held—and he believes would not hold—that false commercial speech receives no First Amendment protection from private suits.40 According to Langvardt, the reason the Court would not do so is that private suits have a greater potential to chill commercial speech than do direct government regulations. He claims that private suits are not as narrowly tailored and allow large damage awards, both of which create greater potential for chill.
Although support for this theory may be found in New York Times, 376 U.S. at 279-80, in which the Court said that “[t]he fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute,” the Court has never limited its holding that false commercial speech receives no First Amendment protection. It is doubtful that the prospect of a private action is a significantly greater deterrent to a commercial speaker than is the prospect of the civil and criminal penalties available to government regulators. Further, a commercial speaker may be chilled in his speech by the prospect of having to pay the costs of a suit to have an overly broad regulation narrowed by a court.
Additionally, Langvardt‘s proposal, if adopted, would result in differing amounts of protection for false commercial speech depending on whether the speaker discusses his own goods or those of another. Langvardt acknowledges that false advertising claims by a defendant about its own
It seems, however, that this double standard would further confuse commercial speech law. The argument is not strong enough to justify differing standards of liability,41 especially in light of the admonition that we not “blur further the line the Court has sought to draw in commercial speech cases.” Central Hudson, 447 U.S. at 563 n. 5.
V.
The district court was correct in dismissing P&G‘s alter ego, single business enterprise, and vicarious liability arguments against Ja-Ri and ADAC, because P&G provided neither sufficient evidence nor sufficient argument to support its position. P&G assigns error to these dismissals based on three grounds. First, it argues that it was unfairly surprised when the court applied Michigan rather than Texas law to these claims. Second, it contends that the court overlooked sufficient evidence to hold Ja-Ri and ADAC liable under the single-business-enterprise theory and vicariously liable for Lanham Act violations of downline distributors. Third, it avers that the court erred in sua sponte entering j.m.l. in favor of Ja-Ri, which P&G claims is a reversible violation of
None of P&G‘s arguments is adequately supported in its brief. First, P&G could not have been unfairly surprised that Michigan law might be applied to ADAC‘s motion for j.m.l. ADAC moved for j.m.l. based on Michigan law on May 7, 1999—six days before P&G rested its case—and, on May 10, P&G filed a memorandum in opposition to ADAC‘s memorandum on choice of law.
Second, P&G does not describe how it was prejudiced by the application of Michigan law. It does not provide examples of how the elements of Michigan and Texas law differ. Both Texas and Michigan law require that to prevail on an alter ego theory or otherwise to pierce the corporate veil, one must prove that failing to do so would promote injustice. See Mancorp, Inc. v. Culpepper, 836 S.W.2d 844, 846 (Tex.App.—Houston [1st Dist.] 1992, no writ); Wells v. Firestone, 421 Mich. 641, 364 N.W.2d 670 (1984); Foodland Distributors v. Al-Naimi, 220 Mich.App. 453, 559 N.W.2d 379 (1996). P&G does not even claim to have offered such proof. Thus, its argument that the court overlooked evidence sufficient to find against Ja-Ri and ADAC fails.
Third, rule 50 neither prohibits a court from suggesting that a party move for j.m.l. nor forbids a court from granting j.m.l. sua sponte. The rule merely states that if there is no sufficient evidentiary basis for the issue to go to the jury, “the court may determine the issue against that party and may grant a motion for [j.m.l.] against that party ...” (emphasis added).
Finally, P&G advances not a single theory as to why Ja-Ri and ADAC should be held liable under alter ego, single business enterprise, or vicarious liability law. Instead, P&G merely asserts that they should be. “A party who inadequately briefs an issue is considered to have abandoned the claim.” Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.1994) (citation omitted).
VI.
A.
The district court is correct that P&G does not have standing to bring a § 43(a) claim based on Amway‘s alleged misrepresentations to its distributors about its allegedly illegal pyramid scheme. P&G asserted its claim based on Amway‘s alleged misrepresentations to its distributors of the financial rewards of being an Amway distributor. The court granted summary judgment based on its conclusion that P&G lacks prudential standing to bring this claim.
We review summary judgment rulings de novo. Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169, 173 (5th Cir.1999). Summary judgment is proper when, taking the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.
Standing has constitutional and prudential components. Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). To meet the constitutional standing requirement, a plaintiff must show (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision. Bennett, 520 U.S. at 162; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Prudential standing requirements exist in addition to “the immutable requirements of Article III,” ACORN v. Fowler, 178 F.3d 350, 362 (5th Cir.1999), as an integral part of “judicial self-government,” Lujan, 504 U.S. at 560. The goal of this self-governance is to determine whether the plaintiff “is a proper party to invoke judicial resolution of the dispute and the exercise of the court‘s remedial powers.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 546 n. 8, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).43
These judicially created limits concern whether a plaintiff‘s grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties. ACORN, 178 F.3d at 363.
Although Congress cannot change constitutional standing requirements, it “can modify or even abrogate prudential standing requirements, thus extending standing to the full extent permitted by Article III.” Id. (citing Bennett, 520 U.S. at 162 (other citation omitted)). We therefore look to the statute in question to determine whether Congress expressed an intent to negate the background of prudential standing doctrine.44
B.
The question whether, in § 43, Congress intended to abrogate the background of prudential standing doctrine is
(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person‘s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.
The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks, and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations.
This section makes clear that the focus of the statute is on anti-competitive conduct in a commercial context. Conferring standing to the full extent implied by the text of § 43(a) would give standing to parties, such as consumers, having no competitive or commercial interests affected by the conduct at issue.... The congressionally-stated purpose of the Lanham Act, far from indicating an express intent to abrogate prudential standing doctrine, evidences an intent to limit standing to a narrow class of potential plaintiffs possessing interests the protection of which furthers the purposes of the Lanham Act.
The court also pointed out that the Lanham Act was passed to codify statutory and common law of unfair competition that had developed before Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).46 The court analyzed the earlier unfair competition laws and noted that
C.
Also of first impression in this court is what test we should adopt in determining whether a plaintiff has statutory or “prudential” standing under the Lanham Act.48 After a survey of the caselaw of other circuits,49 we adopt the test recently set forth in Conte Bros.50 That court adopted the test for prudential standing under the Clayton Act that the Supreme Court set forth in Associated General Contractors, 459 U.S. at 538-44,51 in which the Court identified a num-
The first factor directs us to decide whether the alleged injury is of a type Congress sought to redress in providing a private remedy for violations of the Lanham Act. We conclude that P&G‘s injury based on Amway‘s alleged illegal pyramid scheme is not that type of injury. As stated in Conte Brothers:
[T]he focus of the Lanham Act is on “commercial interests [that] have been harmed by a competitor‘s false advertising,” Granite State Ins. Co. v. Aamco Transmissions, Inc., 57 F.3d 316 (3d Cir.1995), and in “secur[ing] to the business community the advantages of reputation and good will by preventing their diversion from those who have created them to those who have not.” S.Rep. No. 1333, 79th Cong., 2d Sess. (1946), reprinted in 1946 U.S.C.C.A.N. 1274, 1275.
The Lanham Act was enacted to provide protection against the unfair and misleading use of another‘s trademark.52 Given this, it seems unlikely that the injury alleged here—fraudulent misrepresentations made to potential employees to convince them to work for and buy from Amway, resulting ultimately in lower sales of some of P&G‘s products—is of a type that Congress sought to redress in providing the Lanham Act. P&G has alleged attenuated harm arising from the alleged fraudulent inducements but not alleged loss of good will or reputation as a result of Amway‘s alleged pyramid scheme.
The second factor—directness of the alleged injury—also suggests no standing. This is not the case of one competitor‘s directly injuring another by making false statements about his own goods and thus inducing customers to switch from a competitor. Rather, the injury is alleged to arise from a competitor‘s fraudulently inducing a workforce—not necessarily its competitor‘s—to work for it and sell its product by promises to the workers that they will be handsomely compensated.
There are no allegations that the workers otherwise would have worked for P&G. Instead, the attenuated claimed harm is alleged to come from the fact that an increase in sales of Amway products eventually will lead to lower sales for its competitor. If standing is allowed here, one could argue that any competitor‘s fraudulent act in running its business that gives it an advantage could be sued upon as a violation of the Lanham Act. Opening up standing to this extent would not be prudent.
The third factor—the proximity of the party to the alleged injurious conduct—also undercuts standing in this case. In Associated General Contractors, 459 U.S. at 542, the Court held that “the existence of an identifiable class of persons whose self-interest would normally motivate them to vindicate the public interest ... diminishes the justification for allowing a more remote party ... to perform the offices of a private attorney general.” The distributors who are more immediate to the injury than is P&G probably do not have standing to sue under the Lanham Act, which does not give
The fourth factor—speculativeness of the damages—also weighs against standing. In fact, P&G did not even attempt to submit evidence on lost profits resulting from Amway‘s alleged pyramid scheme. In its reply brief, P&G argues that it is not bound to submit such evidence, but that damages instead should be determined based on P&G‘s relative market share. Given the hundreds of P&G products and potential competitors, as well as the difficulty of determining what percentage of Amway‘s distributors were fraudulently induced to work for Amway, it is hard to see how any damages awarded would not be highly speculative.
Finally, the fifth factor—the risk of duplicative damages or complexity of apportioning damages—informs us to deny standing. Not only could every competitor in the market sue Amway if P&G is allowed standing here, but there would be nothing to stop other companies not in direct competition with Amway from suing based on harm suffered by having potential workers fraudulently induced away.
This analysis shows that all five factors unanimously (though to various degrees) counsel against granting standing in this circumstance. Granting prudential standing “would result in a great increase in marginal litigation in the federal courts and would not serve the underlying purposes of the Lanham Act—to ferret out unfair competition methods and protect businesses from the unjust erosion of their good will and reputation.” Conte Bros., 165 F.3d at 236.
VII.
The district court dismissed P&G‘s RICO claims under
We review de novo the dismissal of a complaint for a failure to state a claim for which relief can be granted under rule 12(b)(6). Fernandez-Montes v. Allied Pilots Ass‘n, 987 F.2d 278, 284 (5th Cir.1993). A claim may not be dismissed unless it appears beyond doubt that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992). For purposes of our review, we must accept the plaintiff‘s factual allegations as true and view them in the light most favorable to the plaintiff. Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir.1995).
In civil RICO claims in which fraud is alleged as a predicate act, reliance on the fraud must be shown: “[W]hen civil RICO damages are sought for injuries resulting from fraud, a general requirement of reliance by the plaintiff is a commonsense liability limitation.” Summit Properties, Inc. v. Hoechst Celanese Corp., 214 F.3d 556 (5th Cir.2000), cert. denied, 121 S.Ct. 896 (2001).
P&G points out that in Summit we also set out a narrow exception to this rule. “In general, fraud addresses liability between persons with direct relationships—assured by the requirement that a plaintiff has either been the target of fraud or has relied upon the fraudulent conduct of defendants.” Summit, 214 F.3d at 561. Thus, in Summit we ruled that a target of a fraud that did not itself rely on the fraud may pursue a RICO claim if the
Consequently, P&G‘s RICO claims based on Amway‘s alleged spreading of the Satanism rumor to lure customers from P&G are claims on which relief can be granted. P&G has alleged that using the wire and the mail, Amway attempted to lure P&G‘s customers away by fraud. Although P&G did not rely on the fraud, this falls into the narrow exception carved out by Summit, in which we said that “[i]n the current case, for example, the defendants’ competitors might recover for injuries to competitive position....” Summit, 214 F.3d at 561. Thus, if P&G‘s customers relied on the fraudulent rumor in making decisions to boycott P&G products, this reliance suffices to show proximate causation.
P&G‘s RICO claims for injury based on Amway‘s alleged illegal pyramid structure cannot meet the requirement that the alleged predicate acts proximately caused P&G‘s damages, however. Although some Amway distributors may have bought more P&G products “but-for” being lured into joining Amway, injury to P&G did not flow directly from such inducements. Further, there are too many intervening factors for proximate causation to be proven here. Allowing RICO claims for such tenuous causation would open floodgates similar to those that we are unwilling to open under the Lanham Act. See Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 267, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992). “Life is too short to pursue every human act to its most remote consequences; ‘for want of a nail, a kingdom was lost’ is a commentary on fate, not the statement of a major cause of action against a blacksmith.” Holmes, [503 U.S.] at 287 (Scalia, J., concurring).
We affirm the dismissal of P&G‘s RICO claims based on Amway‘s allegedly illegal pyramid scheme, and we reverse the dismissal of the RICO claims based on Amway‘s spreading of the Satanism rumor. The complaint, as pleaded, does state a claim upon which relief may be granted.
VIII.
The district court erred in dismissing P&G‘s claim for product disparagement under the Lanham Act and its claims under § 16.29 of the
This presents an interesting dilemma. The court first ruled that there was enough evidence to go to the jury on the product disparagement claim, but later dismissed the claim with the rest of the case, without explanation. We are left wondering whether the court inadvertently dismissed the disparagement claim along with the rest of the case or whether, instead, the court realized that there was not enough evidence to go to the jury. Because there is nothing in the record to resolve this puzzle, we reverse and remand the dismissal of the disparagement claim under the Lanham Act.
Amway argues in its brief that P&G has effectively waived this issue, “since P&G makes no effort in this court to show that it even had a case under either [the product disparagement or the § 16.29] claim ...” (quoting Frazier v. Garrison Indep. Sch. Dist., 980 F.2d 1514, 1528 (5th Cir.1993) (“This court is entitled to a reasoned statement of why the district court erred. By the brief nature of their claim, the [appellants] wholly fail to demonstrate any error on the part of the district court.“)).
It would have been more helpful if P&G had provided us with more information on the product disparagement claim. It is enough, however, that P&G points out that at one point the district court found that there was enough evidence of disparagement to get to a jury—including evidence that Amway had made a factually false claim that Crest scratches teeth—and then later dismissed the claim without explanation. This alone is sufficient to show reversible error.
As to the § 16.29 claim, the court dismissed it based on its finding that res judicata from the Utah case barred the claims against Haugen and Walker, and based on its ruling that P&G was required to prove actual malice to prevail on its Lanham Act claim. The court stated:
[T]he only other issue that would have been left alive in the case would have been the Section 1629 case under the business of commerce code, which essentially allows for injunctive relief without any of the other claims in the case, the Court dismisses as a matter of law the Section 1629 of the
TEXAS BUSINESS & COMMERCE CODE claim for injunctive relief.
Because we are reversing and remanding on res judicata and actual malice, the dismissal of which formed the basis for the dismissal of the § 16.29 claim, we also reverse and remand the § 16.29 claim.
IX.
The district court did not err in ruling that P&G‘s fraud claim was barred by the statute of limitations. P&G alleged a claim of common law fraud against Amway arising from falsely assuring P&G that Amway would help fight the Satanism rumor. The court granted summary judgment to Amway on this issue, finding the claim time-barred. P&G assigns error to this ruling, which we review de novo. Prytania Park Hotel, 179 F.3d at 173.
In Texas, the statute of limitations for fraud claims is four years. In Jackson v. Speer, 974 F.2d 676, 679 (5th Cir.1992), we explained:
If, however, the injured party is not aware of the fraud or the fraud is concealed, the statute of limitations begins to run from the time the fraud is discovered or could have been discovered by the defrauded party‘s exercise of reasonable diligence. Knowledge of facts that would lead a reasonably prudent person to make inquiry which would lead to a discovery of the fraud is knowledge of the fraud itself.
(Emphasis added.)
P&G claims that, even exercising reasonable diligence, it could not have discovered the fraud until 1995. Evidence submitted by Amway that was uncontroverted by P&G shows, however, that P&G knew, or reasonably should have known, by the mid-to-late 1980‘s that it could not rely on Amway‘s statements that Amway would help stop the Satanism rumor. Gerald Gendall, head of public affairs at P&G, testified that he “thought P&G should have sued Amway almost on a continuous basis.” Gendall also stated that after 1983, he did not rely on any representations that Amway was doing all it could to stop the rumor. Executive Vice-President Laco also testified that he believed P&G could have sued Amway for the acts of its distributors in the early to mid-1980‘s. Finally, John Smale, P&G‘s CEO from 1981 to 1986, testified: Q: When did you first come to the realization that you should have gone after Amway sooner? A: I don‘t—I suspect in the—I don‘t know, towards the late ‘80s as these rumors continued and as we got more and more lack of response from Amway.
Given this undisputed testimony, a reasonable jury could not have concluded that P&G did not know that it could not rely on Amway‘s representations that Amway would do all it could to combat the Satanism rumor. P&G‘s argument that Amway is estopped from arguing that this claim is time-barred because Amway concealed its fraudulent behavior was also correctly dismissed on summary judgment, for the same reason.
X.
We summarize, as follows: The judgment is reversed as to the res judicata effect of the Utah judgment. Further, the judgments of the Utah court and the Tenth Circuit do not present any issues of collateral estoppel that bind the Texas court. P&G‘s Lanham Act claim for disparagement of its commercial activities is remanded for fact-finding to determine whether the primary motivation of the Amway disseminators of the Satanism rumor was economic. If it was, then the speech is commercial; if not, the speech was noncommercial, and no Lanham Act claim is available. The judgment that P&G must prove actual malice to succeed on its Lanham Act claim for disparagement of commercial activities is reversed; no actual malice need be found.
The judgment dismissing P&G‘s alter ego, single business enterprise, and vicarious liability arguments against Ja-Ri and ADAC is affirmed. The judgment that P&G did not have prudential standing to bring a Lanham Act claim based on Amway‘s alleged misrepresentations to its own distributors is affirmed. The judgment dismissing P&G‘s RICO claims based on spreading the Satanism rumor is reversed and remanded. The judgment dismissing P&G‘s RICO claims based on Amway‘s alleged illegal pyramid structure is affirmed. The judgment dismissing P&G‘s Lanham Act product disparagement claim for the alleged disparagement of Crest toothpaste is reversed, as is the judgment dismissing P&G‘s
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings in accordance with this opinion.
Notes
| Duncan Hines | Bounce | Cheer |
| Bold | Cascade | Joy |
| Comet | Folgers | Jif |
| Dawn | Crisco | Always |
| Downy | Puritan | Attends Undergarments |
| Gain | Secret | Oil of Olay |
| Mr. Clean | Sure | Wondra |
| Oxydol | Head and Shoulders | |
| Camay | Spic-n-Span | Pert |
| Coast | Tide | Prell |
| Ivory | Top Job | Vidal Sassoon |
| Lava | Luvs | Safegard |
| Pampers | Zest | Pepto-Bismol |
| Charmin | Scope | Puffs |
| Crest | Gleem |