Advertising law cases in California can be filed under a multitude of different causes of action. This article seeks to discuss just some of the ways in which advertising cases can be filed, and the type of cases which, to a large extent, have not yet been pursued as fully as one would expect.
Perhaps the first cause of action that comes to mind to use to obtain a remedy for an individual harmed by advertising would be a cause of action for fraud. To take a fictional example, say an advertiser, and by virtue of their advertisement on a television program on a certain station, advertises that they have the cure for cancer, male baldness, bad breath and being able to keep the weight off, all in one simple drug or in their book. The advertiser uses a spokesman, the advertiser uses a specific television station, and in a relatively new twist in this age of the internet, the advertiser also promotes his or her website which after purchasing the drug or the book, the purchaser learns he must also subscribe to the advertisers website either to learn additional details or be kept up to date with side effects of the drug.
Even if the book or drug sold is sold at a price of $34.95, and even if the internet subscription is even $10/month, this is not going to amount to sufficient damages for an attorney to take the case on contingency. And if the individual who bought the book or drug doesnt have tens of thousands of dollars to pursue such a case on his or her own, the case may never be brought and the advertiser may simply go on advertising his or her amazing product.
An action by the FCC against such an advertiser will be unlikely to help the consumer. If the advertiser makes a deal with the FCC, while such a settlement may be in the millions of dollars, the money will simply go to the government and the advertiser will likely simply promise never to make such advertisements again. In reality, the advertiser may also find some new product to advertise or seek to advertise it in a different way and one not covered by the settlement with the FCC, such as by using 800 or 900 numbers.
Businesses or individuals harmed by network television affiliates overcharging for their air time may also feel powerless to bring an action for being excluded from the marketplace or being overcharged as a result of price-fixing or monopolization.
What these examples have in common is that by virtue of class actions and/or antitrust class actions, the claims of these individuals can be made on behalf of a class of similar damaged individuals or entities. With hundreds or thousands and in some cases, millions of similarly injured plaintiffs, the case, while increasing in complexity and cost, can also become sufficiently attractive that one law firm, or multiple law firms working in conjunction, are able to pursue such a case and bring the advertiser to the bargaining table.
In the event the damages caused by the advertising are large enough or specific enough against a single plaintiff such that a class action is not needed or would not be appropriate, additional defendants may be considered. In the case of the advertiser of the book or drug, if the advice contained in the book or the drug not only was misleading but caused serious bodily harm or death, the plaintiff may want to consider a negligence action and consider whether the television network or the spokesman also had some culpability for putting their name behind the product. Where the television station or spokesman is sharing in the profits from the book or drug in exchange for advertising dollars, this may especially warrant consideration.
If you have a situation in which the advertising practices of an individual, entity or a television station are causing you or your business harm, or are favoring your competitors to your disadvantage, and you believe others have been similarly harmed or damaged, call your
advertising law attorney.
