A small cautionary tale for law students

From a First Amended Complaint in a federal case:

11. For example, [defendant] began sending videos via email of plaintiff’s products purportedly malfunctioning. Attached hereto as Exhibit D is an email sent by [defendant] that attached a video of plaintiff’s product supposedly malfunctioning. On information and belief, [defendant] modified plaintiff’s product to mislead the viewer into believing that plaintiff’s product did not function properly. Such emails were commercial speech because inter alia: …

e. [Defendant] disseminated the video and email to a wide portion of the relevant purchasing public by emailing it to (NEED FACT HERE).

There were no subsequent amendments to the Complaint before the court ruled on the motion to dismiss, and here’s part of what the court said:

Moreover, plaintiff fails to allege facts showing defendant’s purported statements were sufficiently disseminated to the purchasing public. Indeed, plaintiff, in its [First Amended Complaint], appears to concede that defendant’s purported statements were not sufficiently disseminated to the purchasing public. See Doc. # 16 at 4 (In its opposition, plaintiff states defendant “disseminated the video and email to a wide portion of the relevant purchasing public by emailing it to (NEED FACT HERE).” As such, the Court GRANTS defendant’s motion as to plaintiff’s false advertising claim under the Lanham Act and DISMISSES the claim without prejudice.

My guess is that this is a recurring fear of many litigators, and mistakes do happen, even when people conscientiously proofread. Still, it’s a good story to remember when you’re filing your own documents.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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Eugene Volokh · August 12