Friday, September 04, 2015

Good article on gender and privacy

Not a Mackinnon-style critique of privacy; rather it's an essay by Kendra Albert about privacy anxieties being played out on the bodies of women (remember also that dad who shot the drone because he was worried about it spying on his daughter?).  Albert asks the Woolf question: what about the voices of the women involved?

Thursday, September 03, 2015

TM/right of publicity mismatch claims another video game victim

Virag, SRL v. Sony Computer Entertainment America LLC, No. 3:15-cv-01729 (N.D. Cal. Aug. 21, 2015)
 
In yet another demonstration of the ridiculous mismatch between right of publicity law and trademark law, Sony wins dismissal of trademark claims for its use of a flooring company’s mark on a sign in its racing game, but a claim of a right of publicity violation based on the argument that the mark “personifies” the company’s principal survives, including a claim for punitive damages for that alleged violation.
 
Virag is a successful Italian company in the commercial flooring business.  Mirco Virag is one of its owners and a professional racing driver with a number of victories on the European Rally Circuit; he’s driven a Virag-sponsored car in the Rally of Monza race in Monza, Italy.   Virag’s mark is displayed on a bridge over the Monza track.  Allegedly, in the international racing world, the Virag mark has become a “personification” of Mirco Virag.
 
Sony makes race car driving simulation games under the name “Gran Turismo.”  Gran Turismo 5 and 6 included a simulated version of the Monza track, including the Virag mark on the bridge.  The games have sold over 13 million copies.  Virag and Mirco Virag allegedly received negative feedback from Virag customers about the appearance of the Virag mark in the games.
 
Sony allegedly excluded some other marks that appear at the Monza Track from the game, but allegedly intentionally incorporated Virag’s mark to create a false impression of sponsorship.  (Sigh.)  Sony also got licenses or authorization from other mark owners to use their marks, but not from Virag.  This appropriation allegedly generated millions of dollars in revenue.  (Note that false advertising plaintiffs get kicked out on the pleadings for making such ridiculous claims of damages.)
 
The Virag company’s right of publicity claim: A corporation lacks a right of publicity.  No case allows it, though groups of people may have rights of publicity they collectively assign to a corporation.  Use of a mark may implicate a real human being’s right of publicity if the mark identifies that human being, but that doesn’t give the corporate markholder a right of publicity in itself.
 
Mirco Virag’s right of publicity did survive, though the court acknowledged that the facts alleged didn’t match previous right of publicity cases.  Virag didn’t allege that Mirco Virag’s name etc. appeared in the game; plaintiffs alleged that Virag the mark identified flooring.  But White says that the issue is whether an individual’s “identity” has been misappropriated, and plaintiffs alleged that, in international racing, Virag the mark “personifies” Mirco Virag.  Virag has allegedly been using Mirco Virag’s success at racing to promote itself as a flooring company for years.  And that’s enough to state a claim, at least for purposes of a motion to dismiss.

A number of thoughts apart from the overall cry of agony: (1) Marketing and linguistic research indicates that conceptual links are not necessarily bidirectional. The alleged facts may well support the claim that Mirco Virag stands for Virag the mark, but that doesn’t mean that Virag the mark stands for Mirco Virag. (Before you say Motsenbacher, take a look at the actual Motsenbacher ad.)  (2)  If ever there were a case for incidental use, this would have to be it.  (3) Because this claim is identity-based, it does not depend on Virag the mark being the same, orthographically, as Mirco Virag’s last name.  On this theory, the use of “Microsoft” implicates Bill Gates’ right of publicity; “Apple,” Steve Jobs; “Virgin,” Richard Branson, etc.  (4) I can’t wait for the next Donald Trump right of publicity case based on this theory.
  (5) Good luck applying this theory on summary judgment!  How will we distinguish evoking Virag-the-mark from evoking Virag-the-person?  What evidence will be relevant?  This is especially important because …
 
Virag’s trademark infringement/false designation of origin claims were barred by the First Amendment.  Continuing from previous paragraph: given that the First Amendment absolutely protects references to Virag-the-mark, there are several significant sub-issues.  Among them: Should there be a heightened standard of proof to find that the reference is to Virag-the-person, because if the reference is only to Virag-the-mark and the factfinder is wrong, First Amendment-protected noncommercial speech is being suppressed?  Independently, suppose a factfinder determines that, because Mirco Virag personifies Virag, there is no way to make the First Amendment-protected reference to Virag without also making a reference to Mirco Virag.  (That is, after all, the logical consequence of the “personification” theory—any means of evoking Virag would invoke Mirco Virag as well.)  If there is a First Amendment right to make the trademark reference, shouldn’t that override the right of publicity here?  (Of course, it always should do so, but we need a case to say that.  This might actually be a good vehicle because the TM/ROP doctrinal divide reaches peak ridiculousness here, which is not the judge’s fault in this case.)

Anyhow, Rogers v. Grimaldi controls.  Virag argued that the games  had “no plot, no characters, no dialog, and no meaningful interaction between the game player and the virtual world,” but were just driving simulators.  Nope.  They have “characters (the race car drivers), plot (the drama of the races), and music. And there certainly is meaningful interaction between the game player and the virtual world: how else would a game player play the games? By not interacting with them?”  Brown v. Electronic Arts found that realistic simulations of American football [nice one, judge!] were protected expressive works; so too here.
smo 6. They all are expressive works that qualify for First Amendment protection.
 
Virag argued that Rogers didn’t apply because the Virag mark didn’t have enough cultural significance to be an integral part of our vocabulary, like Barbie.  That’s not a threshold for the Rogers test, as E.S.S. demonstrated when it applied Rogers to the Play Pen strip clup in L.A. despite the fact that the mark had “little cultural significance.”  Rogers can also be applied on a motion to dismiss because the standard for artistic relevance is so low—it’s an on/off test—and because the only limit is on explicit misleadingness, which can be judged on the face of the work.
 
“[G]iven the central role of realism to Gran Turismo 5 and Gran Turismo 6, the defendants’ use of the VIRAG® mark has at least some (i.e., more than zero) artistic relevance to the games.”  The fact that Sony allegedly used the mark for commercial gain was irrelevant as long as there was artistic relevance. There were no plausible allegations of explicit misleadingness.  It was insufficient that, given their involvement in the European racing scene, consumers could allegedly think that Virag provided expertise and knowledge for the games or sponsored them. “The mere use of a mark is not explicitly misleading, even if combined with consumer confusion.”  Electronic Arts, Inc. v. Textron Inc., No. C 12-00118 WHA, 2012 WL 3042668 (N.D. Cal. July 25, 2012), was not to the contrary.  Textron refused to dismiss a claim brought by Bell Helicopter about a helicopter focused game; it preceded Brown v. EA, where the Ninth Circuit “drove home the point that a defendant must give an ‘explicit indication’ or make an ‘overt claim’ or ‘explicit misstatement’ that causes consumer confusion.”  Plus, in that case, the helicopters were allegedly a main selling point for the game (which shouldn’t matter, given Brown), whereas here the games are racing games, not flooring games, and the Virag mark was “on a bridge over a track and not on a car,” which “comes nowhere close to an explicit misstatement as to source or content.”
 
However, Virag’s request for punitive damages for the right of publicity violation survived.  Punitive damages are available against a tortfeasor who has acted with “oppression, fraud, or malice.” Malice is “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” In federal court, a plaintiff need not allege facts supporting the punitive damages claim with particularity.
 
The allegations of the complaint that Sony “intentionally and without authorization chose to incorporate the VIRAG® mark to create a false impression of sponsorship or authorization” and that Sony obtained licenses or authorization from other trademark holders to use their marks were enough to fall within the definition of malice—conduct intended to cause injury to the plaintiff.  But (1) those allegations go to the trademark claims, not the right of publicity claims, and the trademark claims are barred by the First Amendment; (2) relatedly, how could there be malice as to the ROP given the First Amendment protection for use of the mark to identify the mark owner?

Wednesday, September 02, 2015

Do implicit falsity plaintiffs have to plead the existence of a survey?

Vincent v. Utah Plastic Surgery Society, --- Fed.Appx. ----, 2015 WL 5090868, No. 13–4146 (10th Cir. Aug. 31, 2015)
 
Plaintiffs (cosmetic surgeons) sued defendants (plastic surgeons) for false advertising under the Lanham Act and monopolization under the Sherman Act by running billboard ads called “Public Safety Announcements,” allegedly promoting the deceptive message that cosmetic surgery is safer when performed by plastic surgeons rather than cosmetic surgeons.   The Sherman Act claim failed.
 
The holding of note: plaintiffs conceded they were bringing implied falsity claims.  Because this requires a showing of actual deception, they needed extrinsic evidence to show that “a statistically significant part of the commercial audience holds the false belief allegedly communicated by the challenged advertisement.” But the complaint didn’t plead any specific facts about consumer deception.  The allegation that “Defendants’ false and misleading statements have created confusion among Plaintiffs’ clients, potential clients, and will continue to do so if permitted to continue,” unsupported by even a single relevant fact, was insufficient. 
 
Nor did generally pleading that they suffered damages in the form of lost sales and potential customers suffice to allege sufficient facts to prove an entitlement to damages.  By way of example, “the complaint does not indicate how much Plaintiffs’ profits have decreased since Defendants began their advertising campaign; it does not quantify or estimate the decrease in goodwill; it does not quantify the number of potential customers who allegedly have been lost because of Defendants’ statements or how that number would be measured.”

Tuesday, September 01, 2015

Announcement: Howard U Entertainment/Sports Law conference, Sept. 18-19

On September 18-19, 2015 Howard University School of Law is hosting a national conference focusing on entertainment, arts, and sports law. It will be held at the Marriott Marquis in Washington, DC. The conference agenda is below. Online registration is available here:  http://newglobaleas.com. The gala dinner and awards ceremony honoring Professor Spencer Boyer is on Friday night. The tickets for that event are available here: http://www.law.howard.edu/1952.
 
New Global Paradigm for Entertainment, Arts, and Sports Law Conference Agenda
 
Friday, September 18, 2015
 
9:00 am – 9:10 am – Opening remarks
Course Directors:
Danielle Holley-Walker, Dean, Howard University School of Law
Aubrey “Nick Pittman, Managing Partner, The Pittman Law Firm. P. C.
 
9:10 am – 10:30 am
The New Frontier in Sports Agency
This panel will provide a wide-ranging discussion on the business of sports agency, including the changing landscape of player agency and the benefits, if any, of sports participation or legal training in handling sports agency issues and the changing standards that apply to agents.
Panelists:
Mason P. Ashe, President, Ashe Sports & Entertainment Consulting, Inc.
Andrew Brandt, Director, Moorad Center for Sports Law, Villanova University; Columnist, Sports Illustrated, TheMMQB.com; NFL Business Analyst, ESPN
Donald Dell, Group President, Lagardère Unlimited Americas
Rand E. Sacks,Principal, The Sacks Group, PLLC
Leigh Steinberg,Principal, Steinberg Sports and Entertainment
William “Bill” Strickland, Senior Managing Partner, Stealth Sports, Stealth SME
 
10:30 am – 11:50 am
Assessing and Protecting Intellectual Property Rights Globally
Experienced practitioners and academicians will discuss the top legal and business trends in the intellectual property area of the entertainment and sports industries. Discussions will include those issues surrounding the many challenges in obtaining and protecting intellectual property rights domestically and internationally, and litigating infringement and contract cases. 
Panelists:
Tonya M. Evans, Associate Professor of Law, Widener University Commonwealth Law School
Russell Frackman, Partner, Mitchell Silberberg & Knupp LLP
Jonathan D. Goins, Partner, Lewis Brisbois Bisgaard & Smith LLP
Loren E. Mulraine, Bone McAllester Norton P.C. and Professor of Law, Belmont University College of Law
 
11:50 am – 12:00 pm
Break
 
12:00 pm – 1:20 pm (Lunch)
Inside the NCAA’s Legal Division
Speaker:  Donald Remy, Esq., NCAA Executive Vice President and Chief Legal Officer
 
 
1:30 pm – 3:15 pm
Trending Topics in Television and Digital Media 
This panel will include discussion of trending topics surrounding business and legal affairs matters across all aspects of television and digital media, including negotiation of deals for the acquisition of original and off-network television series and movies; television production of scripted, reality, sports and live programming; digital programming, content creation, production and advertising; current regulatory and other legal positions, policies and trends in the areas of conventional and subscription television broadcasting, radio broadcasting, telecasting via satellite communications, multi-point distribution or cable television, as well as other related programs or informational delivery systems.
Panelists:
Rhonda Edwards-Powell, Vice President, Business and Legal Affairs, Scripps Networks Interactive Inc.
Aleena Maher, Senior Vice President, Business & Legal Affairs, Viacom Media Networks
Crystal Morales, Vice President, Business Affairs, Turner Broadcasting System
 
3:15 pm – 3:30 pm
Break
 
3:30 pm – 5:30 pm
Fireside Chat with Players’ Association Executives
This panel includes player association executives and practitioners discussing the challenges and successes of player associations on issues such as collective bargaining, player compensation, antitrust issues, player safety and player discipline issues. 
Panelists:
Anthony “Tony” Clark, Executive Director, Major League Baseball Players Association (“MLBPA”)
Donald Fehr, Executive Director, National Hockey League Players’ Association (“NHLPA”)
Michele A. Roberts, Executive Director, National Basketball Players Association (“NBPA”)
DeMaurice F. Smith, Executive Director, National Football League Players' Association (“NFLPA”)
 
7:00 pm – 10:00 pm
Reception and Awards Gala
 
Saturday, September 19, 2015
 
9:00 am – 10:30 am
The Business of Entertainment & the Arts 
This panel includes business executives, academicians and practitioners who will offer views on a broad range of business and legal topics related to the entertainment industry. Whether you are thinking about starting a business or are facing the challenges of being in business, this panel will be informational.
Panelists:
Serona Elton, Associate Professor, University of Miami Frost School of Music and Vice President, Business Solutions at Warner Music Group
Charles King, CEO and Founder, Macro Ventures and Former William Morris Super Agent
Edward Woods, Senior Partner, Edwards Woods, P.C.
 
10:30 am – 11:45 am
Inside the Company’s Business and Legal Affairs Division
This panel will provide an insider’s view into the company’s business and legal affairs division, as well as outline specific examples of business developments that require both the application of traditional legal skills as well as collaboration with business counterparts.
Panelists:
Joseph Dimona, Vice President Legal Affairs, Broadcast Music, Inc.
Melanie S. Jones, Director, Business & Legal Affairs, Discovery Communications, LLC.
Danielle Robinson, Counsel, Radio One
 
11:45 am – 12:00 pm
Break
 
12:00 pm – 1:25 (Lunch)
CLE Speaker: TBD
 
1:30 pm – 3:00 pm
A Primer on Counseling Entertainment Industry Clients
Experienced attorneys and business executives will debate the key legal, business and ethical issues that confront entertainment clients. The panelists will discuss practicing entertainment law in a secondary market versus a primary market and how to gain knowledge and experience starting out in entertainment law. The panel will also provide overviews on the predominant issues involved in personal management and agency contracts, artist-record company agreements, producers and writer agreements, TV and Film contracts, music publishing and book publishing and much more.
Panelists:
Ricky Anderson, Managing Partner, Anderson and Smith, P.C.
Reggie Osse, Partner, Wade Osse Waldon, LLP; Radio Personality, The Combat Jack Show
 
3:00 pm – 3:15 pm
Break
 
3:15 pm – 4:45 pm
Hottest Topics in Sports Law
From safety concerns to injury issues, from play to discipline, from on-the-field to off-the-field activities, and everything in-between, these Panelists will discuss issues involving sports figures, teams, leagues, and colleges ontoday’s and tomorrow’s hottest topics.
Panelists:
Timothy Davis, Executive Associate Dean for Academic Affairs and Professor of Law, Wake Forest University School of Law
N. Jeremi Duru, Professor of Law, American University’s Washington College of Law
Bret M. Kanis, Hightower Law Firm
Daryl Washington, The Washington Law Firm, P.C.
Brandon Wright, Director of Compliance, University of Maryland 

Monday, August 31, 2015

court rejects stay, orders recall in pregnancy test false advertising case

Church & Dwight Co., Inc. v. SPD Swiss Precision Diagnostics, GmbH, 2015 WL 5051769, No. 14–CV–585 (S.D.N.Y. Aug. 26, 2015)
 
The court previously found that SPD engaged in false advertising; SPD moved to stay or modify any injunction pending appeal and the court declined to do so.
 
An applicant for a stay of an injunction pending appeal “must establish more than a ‘mere possibility’ both of irreparable injury absent a stay and of success on the merits of the appeal” to prevail.  As for irreparable harm, it was undeniable that the injunction would cause SPD some harm.  Monetary cost alone isn’t sufficient to justify a stay.  The cost of a recall here, $3.6 million, wasn’t insignificant, but SPD didn’t explain how it would irreparably harm the company.  SPD also argued that a recall would cause loss of consumer trust and goodwill.  The court found the magnitude of any such loss to be speculative; SPD had no evidence that health care providers would change their views on the quality of the product based on a false advertising recall, or that consumers would view the product as unsafe or believe it was no longer approved by the FDA.  SPD would “certainly endeavor to communicate to customers that any recall has no bearing on safety.”  In any event, damage to consumer goodwill wouldn’t be from the injunction or recall, but because of SPD’s “intentional deception of an egregious nature.”   These speculative injuries didn’t rise to the level of irreparable harm.
 
SPD argued that it was likely to succeed on the merits of an appeal, because there’s a post-Pom Wonderful question of first impression in the Second Circuit on whether the FDA’s pre-approval of advertising for a medical device precludes Lanham Act false advertising claims, as well as a serious question as to whether C & D was entitled to a “presumption of consumer confusion as to all of SPD’s advertising based on ... intentional deception ... tied to only specific pieces of advertising.” 
 
So far, all courts to have consider Pom Wonderful have applied it equally to medical device labeling; the case only strengthens the non-preemption conclusion.  Nor did the court here rely only on a presumption of consumer confusion; it also pointed to C&D’s consumer surveys, so that undercut the seriousness of the second legal question. Ultimately, SPD didn’t show that the balance of the equities weighed heavily in favor of granting the stay, especially given its intentionally false advertising.
 
As for injury to C&D, SPD argued that its proposed plan to “place curative sleeves on the packaging ... would eliminate or mitigate any loss C&D might suffer from any misleading message on existing packaging.” But without an injunction in force, SPD would be under no obligation to place sleeves on the packaging and its product would remain on store shelves without corrective labeling for the duration of the stay. That would prolong C&D’s harm, especially in light of the bifurcation of the liability and damages stages of the case, which would delay C&D’s ability to obtain damages.
 
The public interest was also served by preventing consumer deception.
 
As for the content of the injunction, SPD wanted to sleeve the existing packages with a new package at their retail locations.  The essential difference was what happens between entry of the injunction and the preparation of new packaging—SPD needs FDA approval to put new packaging on the product, which SPD estimated would take two weeks, and then 5-6 more weeks to deliver the new packaging to retailers.  With sleeving, current misleadingly packaged product would remain on the shelves for at least 7-8 weeks, whereas a recall could begin immediately and be completed within 4 weeks.  SPD had already completely ceased shipping the product in its existing packaging; sleeving would allow SPD to sell out its current inventory, obviating the need for either recall or sleeving.  “Given the intentional nature of SPD’s false advertising and the interest of avoiding consumer confusion, the Product should not be allowed to remain on the shelves for weeks before steps are initiated to correct false advertising. Thus, this Court concludes that ‘sleeving’ is not an appropriate remedy.”
 
Thus, the court ordered a recall.
 
SPD also sought a stay to seek FDA approval for its new packaging. The court acknowledged the necessary delay brought on by FDA involvement, but “allowing intentionally false and misleading packaging to remain on store shelves for a longer period of time in order to accommodate SPD’s FDA approval schedule is not an appropriate solution,” especially since SPD could’ve begun seeking approval for new packaging as of the court’s July 1 opinion, but didn’t.  Nor would the court grant a temporary stay to seek a stay from the Second Circuit.
 

Friday, August 28, 2015

Upset tummies at P&G: Sixth Circuit affirms class certification on "snake oil" theory

Rikos v. Procter & Gamble Co., --- F.3d ----, 2015 WL 4978712 (6th Cir. June 16, 2015)
 
A court of appeals affirms the certification of a consumer protection class action, a rarity worth noting.
 
Plaintiffs bought Align, P&G’s probiotic nutritional supplement, and found that the product did not work as advertised—that is, it did not promote their digestive health. They sued for violation of various state unfair or deceptive practices statutes, and  the district court certified five single-state classes from California, Illinois, Florida, New Hampshire, and North Carolina. “While there is a consensus within the medical and scientific communities that utilizing bacteria as a therapeutic measure in human disease is promising, current knowledge of the use of bacteria for these purposes remains fairly primitive.” Overall “[m]edical understanding of probiotics in humans is still in its infancy.” Align is a nonprescription supplement sold in a capsule that is “filled with bacteria and [otherwise] inert ingredients.”
 
P&G initially had trouble convincing consumers of Align’s value, given its premium price point, though it eventually launched Align nationwide through a comprehensive advertising campaign, which included in-person physician visits, television and print advertisements, in-store displays, and product packaging.
 
Commonality: P&G argued that there was no common injury, only anecdotal evidence that Align didn’t work for the named plaintiffs.  Consumer satisfaction, and repeat purchases, showed Align’s benefits—along with at least some studies that appeared to concluded that Align was effective in promoting digestive health.  Dukes doesn’t require plaintiffs to show that all class members were in fact injured at the certification stage—rather that their claims depend on a common contention capable of classwide resolution.  The common question here was whether Align is “snake oil” and thus does not yield benefits to anyone.  If true, that would make P&G liable to the entire class “every class member was injured in the sense that he or she spent money on a product that does not work as advertised.”  Consumer satisfaction isn’t the right way to think about injury in the false advertising context.  It’s misleading to state that a product is effective when that effectiveness rests solely on a placebo effect. See, e.g., FTC v. Pantron I Corporation, 33 F.3d 1088 (9th Cir. 1994).
 
Typicality: basically the same, though P&G framed its argument as being that “many of the unnamed class members have no interest in pursuing restitution, nor in crippling the product. Indeed, this lawsuit may be antithetical to their interests.” That didn’t make the named plaintiffs atypical in the relevant sense.
 
Predominance:  P&G alleged that some putative class members weren’t exposed to its marketing campaign; they may have bought Align based on advice from a family member, friend, or physician.  But the plaintiffs all bought Align because it allegedly promoted digestive health. “That is the only reason to buy Align.” And there was evidence showing that P & G undertook “a comprehensive marketing strategy with a uniform core message, even if its packaging has changed somewhat over time: buy Align because it will help promote your digestive health.”  P&G argued that doctors could recommend Align based on their independent judgment, but P&G developed the probiotic and the campaign that promoted it to doctors.
 
Reliance and causation: under each state’s laws, the plaintiffs could prove what was necessary on a classwide basis as long as (1) the alleged misrepresentation that Align promotes digestive health is material or likely to deceive a reasonable consumer, and (2) P & G made that misrepresentation in a generally uniform way to the entire class.  California is Tobacco II.  Illinois’ ICFA requires a showing of damage to the plaintiff as a result of the deception—that is, proximate cause from the false advertising.  If the challenged representation was made to all putative class members and was material, it’s capable of classwide proof.  Florida’s FDUTPA case law is divided, but many courts have held that it doesn’t require proof of actual, individualized reliance, only a showing that the practice was likely to deceive a reasonable consumer, at least as long as there’s a generally uniform material misrepresentation.  New Hampshire’s Consumer Protection Act also doesn’t require proof of individual reliance or causation; materiality is a proxy for causation and an objective question that can be answered classwide.  North Carolina’s UDTPA requires reliance, but reliance can be proved circumstantially, and a consumer protection class action can be certified on those grounds, especially since the alleged misrepresentation here was the reason to buy Align.  Plaintiffs were prepared to show materiality and the existence of a generally uniform misreprentation; that sufficed.
 
P&G argued that Align actually works, at least for some consumers, which is to say that the scientific evidence might show that Align provides benefits for some purchasers, but not all, requiring individualized proof of injury.  But this is a factual dispute; plaintiffs argued that P&G’s studies were flawed and that Align didn’t work, at least not any more than placebo.  Plaintiffs’ theory was not that the effectiveness of Align was variable, but that it hadn’t been shown that Align worked for anyone.  P&G’s effectiveness argument went solely to the merits, and plaintiffs provided enough evidence to support plaintiffs’ theory of liability. The fact that the common answer might be that Align does work for some people doesn’t transform the classwide issue into one precluding certification.  If there’s an identifiable subclass of people for whom it works or doesn’t work, the district court could even revisit the issue of certification.
 
The court’s holding was is consistent with the Supreme Court’s recent decision in Halliburton Co. v. Erica P. John Fund, Inc., ––– U.S. –––– (2014), which held that, at the class-certification stage, defendants in private securities fraud class actions must be able to present evidence rebutting a particular presumption of classwide reliance available in these kinds of cases. “The Halliburton Court’s holding is limited to allowing rebuttal evidence on issues that affect predominance, not evidence that affects only the merits of a case,” and P&G’s evidence went only to the merits; in any event, P&G was allowed to put forth its evidence, so Halliburton was satisfied.
 
Relatedly, P&G argued that plaintiffs failed to present a viable theory of classwide damages under Comcast Corp. v. Behrend, ––– U.S.–––– (2013).  If Align is snake oil, then there’s no problem with the damages theory; a full refund of the purchase price would satisfy Comcast, since “there is no reason to buy Align except for its purported digestive benefits—‘[i]t is a capsule filled with bacteria and inert ingredients. If, as alleged, the bacteria does nothing, then the capsule is worthless.’” Even if some customers were satisfied, for whatever reason, “either 0% or 100% of the proposed class members were defrauded. There is no evidence that some proposed class members knew of the alleged falsity of Defendant’s advertising yet purchased Align anyway.”
 
P&G also contested class standing, on similar grounds (Align may have worked for some of them).  There was no need to enter a circuit split over whether it’s sufficient for a named class plaintiff to have standing, given the snake oil theory of the case.
 
Further, the proposed class was sufficiently ascertainable.  Carrera v. Bayer Corp., 727 F.3d 300 (3d Cir. 2013), is not the law of the Sixth Circuit, and there was no reason to follow Carrera, given the strong criticism to which that decision has been subject and the Third Circuit’s subsequent caution against a broad reading of that case.  Ascertainability requires the court to be able to resolve the question of class membership with reasonable accuracy by reference to objective criteria.  Purchases of Align in California, New Hampshire, Illinois, North Carolina, or Florida could be determined with reasonable—but not perfect—accuracy. “Doing so would require substantial review, likely of internal P & G data. But as the district court pointed out, such review could be supplemented through the use of receipts, affidavits, and a special master to review individual claims.”  Here, customer membership cards and records of online sales—more than half of Align’s sales—could be used; also, P&G’s studies showed that “an overwhelming number of customers learned about Align through their physicians,” so verification could be accomplished through a signed statement from a customer’s physician.
 
A concurrence by Judge Cohn suggested bifurcating the proceedings and first looking for whether there was scientific evidence that Align promotes digestive heath for anyone, which might allow early dismissal of the case.
 
A dissent by Judge Cook would have found that the district court abused its discretion by failing to conduct a rigorous inquiry into certification.  Plaintiffs didn’t offer proof in support of their argument that Align was “snake oil” that produces nothing more than a placebo effect.”[A]ll the available evidence tends to show the opposite: that consumers benefit more or less from Align based on their individual gastrointestinal health. P & G’s scientific studies and anecdotal evidence tend to show, at the very least, that patients suffering from irritable bowel syndrome (IBS) benefit from Align.”  The certified class included both IBS patients and healthy consumers, so plaintiffs failed to show that their theory of liability lends itself to common investigation and resolution.  Whether Align works similarly for each class member “is relevant to certification and therefore not beyond the scope of the court’s rigorous analysis.” Also, the majority therefore affirmed a class definition that included a “clutch” of members without standing.  Plaintiffs’ “promise to conduct the definitive trial of Align that accounts for all variables of human physiology” was insufficient under Dukes and its progeny.

Wednesday, August 26, 2015

Fifth Circuit upholds mandatory self-abnegating disclosure to correct competitor's harassment

Test Masters Educational Services, Inc. v. Robin Singh Educational Services, Inc., No. 13-20250 (5th Cir. Aug. 21, 2015)
 
The parties, test prep companies, have competing claims to TESTMASTERS as a trademark, and have been litigating for over a decade.  Plaintiff TES operates under the name Testmasters; it was founded in 1991, initially concentrating on engineering licensing exams but expanding to others, including the LSAT. Until 2002, TES offered live courses only in Texas, primarily in Houston; it has since expanded outside Texas.  Singh started offering test preparation courses under the name “TestMasters” in 1991. Singh initially offered only LSAT courses in California, but has since expanded to offer courses nationwide for a variety of exams.
 
Singh applied for registration in 1995; the PTO first denied the application on the basis of other similar marks, but approved the application “after determining that none of the three marks were still in use.” At that point, Singh discovered that TES already owned the domain name “testmasters.com” and sent TES a demand letter.  Litigation ensued, and continued.  In 2002, the Fifth Circuit held that TESTMASTERS was descriptive, that TES’s rights to the mark were limited to Texas, and that Singh had failed to prove that the mark had acquired secondary meaning.  After the second lawsuit, in 2005, Singh was enjoined from interfering with TES’s use of the mark in Texas, and Singh was permitted to challenge TES’s claim to the mark outside of Texas.
 
Also, TES applied for nationwide registration in 2001; Singh opposed.  In 2011, after a lot of stuff I’m sure everyone involved wishes they could’ve skipped too, the TTAB denied the applications, holding that the mark was descriptive and that TES had failed to demonstrate “substantially exclusive use” of the descriptive mark. In April 2013, the district court affirmed the TTAB’s decision, granted Singh summary judgment on TES’s infringement claims, and dismissed Singh’s infringement counterclaims based on collateral estoppel.  There was also a contempt issue, of which more below.
 
On appeal, TES argued that Singh lacked standing to oppose the registration, because he’d previously lost on the secondary meaning issue.  But he’d only been enjoined from pursuing registration, not from claiming trademark rights, so he had standing.  TES further argued that it had presented enough evidence of secondary meaning in “unrestricted geographic and subject matter areas” to survive summary judgment.  It had not.  The evidence showed that both parties had used the mark for a while, and that Singh’s company was larger and did significantly more business outside Texas.  Both parties advertised extensively, TES mostly to engineering students and Singh primarily to LSAT takers.  TES’s survey was flawed because, though it asked engineering exam-takers whether they associated “Testmasters” with one company, it didn’t determine which one that was for the 50.7% who said yes.  Plus, the survey was directed only at people taking engineering exams and half of those polled were from Texas. As for direct consumer evidence, the court of appeals agreed with the district court that “[e]ach party’s evidence shows that, in its strongest subject matter area, it is well-known and there may be some consumer confusion.”
 
What TES needed to show to prove its case was that the mark had “secondary meaning on a nationwide basis for all test preparation courses.” At most, it showed that the mark has acquired a secondary meaning for professional engineering examinations, not any other test preparation services.
 
Singh argued that the district court erred in finding him collaterally estopped from claiming secondary meaning.  It didn’t.  Singh claimed that the passage of 13 years changed things enough to justify giving him another bite at the apple: among other things, his annual revenues increased from just over $3 million in 2001 to an average of $14 million between 2008 and 2010. But “[e]vidence of increased business success alone is insufficient to show a significant intervening change” to justify rejecting collateral estoppel.
 
The court of appeals vacated a contempt order against Singh’s lawyer, Daniel Sheehan, but not against Singh.  In 2003 and 2004, the district court enjoined Singh from registering the mark, interfering with TES’s attempt to register the mark, and using the mark in Texas/directing the mark at Texas; then added an order barring Singh from “threatening, or harassing [TES], its employees, its staff, or TES’s counsel, counsel’s employees, or counsel’s staff.” (A bar on direct communication was reversed by the court of appeals; the threat/harassment prohibitions were upheld.)
 
According to TES, Singh continued to advertise in Texas, instructed employees to post negative comments about TES on various websites, and aided in the posting of defamatory videos online. One posting referenced a state-court paternity suit involving TES’s founder, calling him a “deadbeat dad” and mentioning the minor child involved in the suit by name.  At the contempt hearing, the court ordered Singh’s lawyer incarcerated to get Singh to remove the postings, which Singh took steps to do; the court also ordered Singh to remove the harassing posts. 
 
TES then requested additional contempt sanctions, which were granted in part, and the district court ordered Singh to publish a “remedial posting” on “ripoffreport.com” in response to the “deadbeat dad” post he had previously made, requiring him to post: “Robin Singh and Robin Singh Educational Services previously posted on March 25, 2010, a Complaint Review of Dr. Haku Israni and his website testmasters.com. Singh and Dr. Israni were involved in litigation at that time and Singh would now like to retract his prior complaint. No credence should be paid to that complaint or any of its contents.”
 
Singh argued that the contempt sanctions and remedial order violated the First Amendment. The court of appeals disagreed.  Harassment isn’t protected by the First Amendment, even when the harassment is published on the internet and not directly communicated to the target.
 
Singh also argued that the remedial statement violated his First Amendment right not to speak, and that he was forced to say things that were simply untrue, because he didn’t “wish” to retract his complaint and believed that credence should be given to his claims.  Singh’s statements were commercial speech.  Though the post focused on TES’s founder’s personal life, “Singh must have made it with the economic interest of harming TES.”  A required disclosure related to commercial speech need only be “reasonably related to the [government’s] interest in preventing deception of consumers.” Because the original posting was deceptive, the district court’s order was reasonably related to its interest in preventing consumer deception by correcting the misleading information.  Singh’s objection to the language indicating he’d like to retract the statements didn’t identify a “relevant” falsehood.  “Whether Singh enjoyed taking this medicine is an insignificant question of phrasing.”
 
[Note that under the panel opinion in the NAM v. SEC case, this result couldn’t occur.  The Ripoff Report complaint isn’t “advertising” even if it is commercial speech, and the like/credence wording would seem to trigger the controversiality/not purely factual limit as interpreted therein.]

Monday, August 24, 2015

DC Circuit panel doubles down on invalidating conflict minerals disclosure

Nat’l Ass’n of Mfgrs v. SEC, No. 13-5252 (D.C. Cir. Aug. 18, 2105)
 
After the AMI en banc decision, the panel granted rehearing of National Association of Manufacturers v. SEC, 748 F.3d 359 (D.C. Cir. 2014).  The panel, over a dissent, confirmed its initial ruling that the conflict mineral SEC disclosure rule was unconstitutional, in the process saying some dumb things about what constitutes commercial speech (the panel didn’t think product labels count) and some very troubling things about legislative factfinding (apparently not allowed in the face of controversy).  Basically, the panel majority strongly disagrees with the AMI en banc, so there.
 
The AMI en banc majority held that Zauderer covers more than mandatory disclosures that cure misleading advertising, and also covers disclosures that serve other governmental interests, such as allowing consumers to choose American-made products.
 
The majority here began by responding to the dissent, which pointed out that US law has a lot of disclosure requirements for securities issuers, and First Amendment challenges to them really died in the 80s.  But—SEC, get nervous—“Charles Dickens had a few words about this form of argumentation: ‘“Whatever is is right”; an aphorism that would be as final as it is lazy, did it not include the troublesome consequence, that nothing that ever was, was wrong.’” And anyway, even the SEC agrees that the conflict minerals disclosure regime is very different from the “economic or investor protection benefits” that SEC rules ordinarily strive to achieve.
 
Zauderer doesn’t cover all commercial speech, only “advertising or product labeling at the point of sale,” so Central Hudson applied.  The Supreme Court, after all, didn’t apply Zauderer in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) or United States v. United Foods, Inc., 533 U.S. 405 (2001), and corporations generally have free speech rights.  The conflict minerals disclosures are supposed to be made on company websites and reports to the SEC, so they aren’t advertising, even assuming they’re commercial speech.  [Like I said, get nervous, SEC.]
 
The dissent takes this on very well, but I also find the majority’s analysis here disingenuous; there is a large and contentious literature about what constitutes commercial speech, but Hurley is not part of it, because no one thought that Hurley’s parade involved commercial speech.  The distinction Hurley made was commercial/noncommercial, not advertising/commercial speech that is not advertising; “advertising” is standard shorthand for commercial speech. 
 
The majority noted the dissent’s objection to the anomalous result that requiring producers to put the conflict minerals disclosure on their product boxes—a much more onerous requirement—is judged by more relaxed standards than the SEC reporting requirement, but said that was AMI’s fault for “stretching Zauderer to cover laws compelling disclosures at the time of sale for reasons other than preventing consumer deception.”  And the disingenuousness intensifies!  Apparently Zauderer doesn’t apply when a commercial entity engages in false or misleading commercial speech that isn’t “advertising”?  That is nonsensical.  The panel majority doesn’t like AMI, I get it, but there are reasonable ways to limit AMI and unreasonable ones.  Perhaps this is basically a dare to the overall circuit to take this case en banc if the government so desires, but the reasoning is just embarrassing.
 
Anyway, even if AMI and Zauderer applied, the conflict minerals disclosure would still violate the First Amendment, because it might not work to end war in the Congo.  Though the court assumed that “ameliorat[ing] the humanitarian crisis in the DRC” was a sufficient interest under AMI and Central Hudson, disclosure hadn’t been shown to be effective at achieving that interest.  Statements by two Senators, members of the executive branch, and a United Nations resolution were insufficient, especially given the cost of compliance, which was in the billions, and hundreds of millions of dollars each year. (I do not understand what the cost of compliance has to do with effectiveness, but let’s just call that a conflation of several Central Hudson steps; it’s hardly the worst offense of this opinion.)  The prospect that companies will simply avoid mineral suppliers with a connection to the DRC wouldn’t reduce the humanitarian crisis: “The idea must be that the forced disclosure regime will decrease the revenue of armed groups in the DRC and their loss of revenue will end or at least diminish the humanitarian crisis there. But there is a major problem with this idea – it is entirely unproven and rests on pure speculation.”
 
In commercial speech cases the government cannot rest on “speculation or conjecture.”  Congress didn’t hold pre-enactment hearings on the likely impact of disclosure, and post-enactment hearings contained testimony both pro and con.  Post hoc evidence suggested that the law may have backfired: “miners are being put out of work or are seeing even their meager wages substantially reduced, thus exacerbating the humanitarian crisis and driving them into the rebels’ camps as a last resort.”  Other sources support the disclosure, but its effectiveness was not “proven to the degree required under the First Amendment to compel speech.”
 
[Part of the problem is the failure of the government to defend an investor’s interest in refusing to participate directly in or benefit directly from harm-generating activities, even if that refusal does not stop the harm and only allows the investor to walk away from Omelas.  The best explanation of this interest as a distinct one in legal terms is Douglas Kysar’s Preferences for Process: The Process/Product Distinction and the Regulation of Consumer Choice.  Disclosure, which allows investors (and potentially consumers) to make this choice to implicate or not implicate themselves, directly furthers that exact interest.]
 
That was enough to doom the regulation, but the disclosure was also not “purely factual and uncontroversial,” as required by Zauderer and AMI.  You could read this phrase as descriptive rather than definitional in Zauderer, but AMI said it was a separate requirement for upholding the disclosure, and the panel was, after all, bound by AMI.  [OK, now the majority is just acting like a jerk.  Brutus is an honorable man and all that.]
 
“Uncontroversial” must mean something different than “purely factual.”  It has to be controversial for some reason other than a dispute about factual accuracy.  We could understand this as a fact/opinion divide,
 
[b]ut that line is often blurred, and it is far from clear that all opinions are controversial. Is Einstein’s General Theory of Relativity fact or opinion, and should it be regarded as controversial? If the government required labels on all internal combustion engines stating that “USE OF THIS PRODUCT CONTRIBUTES TO GLOBAL WARMING” would that be fact or opinion? It is easy to convert many statements of opinion into assertions of fact simply by removing the words “in my opinion” or removing “in the opinion of many scientists” or removing “in the opinion of  many experts.” It is also the case that propositions once regarded as factual and uncontroversial may turn out to be something quite different.
 
A footnote discussed changing scientific opinions on the contribution of dietary cholesterol to blood cholesterol, and when the assessment of factual correctness ought to be made, at enactment or at the time of challenge/controversy.  [Though it did not discuss the extensive body of law that deals with whether starting a factual statement with “in my opinion” means that the statement is one of opinion and not fact.   Spoiler: no.  So the minor premise is wrong too.  In my opinion.]
 
Anyway, the AMI en banc viewed country of origin of disclosures for meat as “uncontroversial,” but that was puzzling, rather than providing guidance.  There was definitely a dispute about those disclosures, since they were challenged at the WTO.  [Again, disingenuous.  AMI didn’t give a great definition of “uncontroversial” by any means, but no one disputed that meat required to be labeled as having been slaughtered in the US was in fact slaughtered in the US—unlike the cholesterol example.  Those origin labels were the paradigmatic disclosures that were controversial “for reasons other than dispute over factual accuracy.”  I also note that we’re not going to hear about biased disclosure regulations surrounding abortion in this discussion, because abortion’s First Amendment is just different.]
 
The dissent’s alternative was to read “uncontroversial” as “accurate,” which made the phrase redundant.  “Is there such a thing as a ‘purely factual’ proposition that is not ‘accurate’?  [Well, yes.  “My car is red” is a purely factual proposition.  It is not accurate, at least if I said it.]  Accurate information can also be misleading, anyway, so it’s a bad line.
 
Nor could the statutory  definition  of “conflict free” save the law, because the government doesn’t get to force companies to use its preferred language.  [FDA, get more nervous.]  As NAM said, “companies could be compelled to state that their products are not ‘environmentally sustainable’ or ‘fair trade’ if the government provided ‘factual’ definitions of those slogans – even if the companies vehemently disagreed that their [products] were ‘unsustainable’ or ‘unfair.’” The majority continued:
 
A famous example of governmental redefinition comes to mind:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH
George Orwell, Nineteen Eighty-Four.
 
[Professor Tushnet is impressed, and wonders where, rhetorically, there is to go from here.] “Conflict free” is an ideological statement, since gold doesn’t fight conflicts; the disclosure requires companies “to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups.”  Companies are allowed to disagree with that assessment, even by remaining silent.
 
Judge Srinivasan dissented.  There are lots of “garden-variety” disclosure obligations for securities issuers that no one [but the majority] thinks are a First Amendment problem.  The conflict minerals disclosure “provides investors and consumers with useful information about the geographic origins of a product’s source materials”—an interest specifically upheld as time-honored in AMI.  The term “DRC conflict free” is statutorily defined; if the issuer can’t determine, after investigation, that a product is “DRC conflict free” under the statutory definition, it must say so in a report disclosing that the product has “not been found to be ‘DRC conflict free.’”
 
The requirement to make that disclosure, in light of the anticipated reaction by investors and consumers, aims to dissuade manufacturers from purchasing minerals that fund armed groups in the DRC region. That goal is unique to this securities law; but the basic mechanism—disclosure of factual information about a product in anticipation of a consumer reaction—is regular fare for governmental disclosure mandates.
 
There was no First Amendment objection to the source-investigation obligation.  Nor was there a challenge to the obligation to list products that fail to qualify as “DRC conflict free” in a report for investors. They just objected to the requirement to describe the listed products with the catchphrase “not been found to be ‘DRC conflict free.’” But the prescribed shorthand phrase couldn’t materially change the constitutional calculus.  This shorthand “comes amidst a set of mandated disclosures about the measures undertaken to determine the source of minerals originating in the DRC or adjoining countries.” So the meaning would be apparent in context, and the SEC also allowed issuers to elaborate however they wanted, including the statement that this is “a phrase we are obligated to use under federal securities laws to describe products when we are unable to determine that they contain no minerals that directly or indirectly finance or benefit armed groups in the DRC or an adjoining country.” At that point, there would seem to be nothing arguably confusing or misleading about the content of the Rule’s mandated disclosure.
 
The basic rule is that, “when the government requires disclosure of truthful, factual information about a product to consumers, a company’s First Amendment interest in withholding that information from its consumers is ‘minimal.’”  That’s enough to sustain this rule.  Though the disclosure “invites public scrutiny,” that’s also true of other requirements, such as required calorie count or nutritional information.  Even under Central Hudson, this requirement would survive, given that commercial speech is valued for different reasons than non-commercial speech—it helps consumers through providing them information.
 
Whether Zauderer or Central Hudson applies depends on whether a regulation adds information to the flow of truthful commercial speech, or suppresses some truthful commercial speech. Under that standard, Zauderer obviously applies.  The speech at issue is commercial: it requires manufacturers to disclose information about product composition. The fact that this disclosure appears on websites and annual reports filed with the SEC doesn’t change its status as commercial speech; United States v. Philip Morris USA, Inc., 566 F.3d 1095 (D.C. Cir. 2009) (per curiam), “treated corrective statements about products required to be included on the company’s website as commercial speech” in response to Philip Morris’ argument that such disclosures couldn’t be commercial speech because they were unattached to ads.  Philip Morris held that commercial speech “include[s] material representations about the efficacy, safety, and quality of the advertiser’s product, and other information asserted for the purpose of persuading the public to purchase” (or, given the corrective disclosures at issue, not to purchase) “the product.” 
 
The newly minted subclassing of Zauderer to only some instances of commercial speech contradicted Zauderer’s core rationale, which is that First Amendment protection for commercial speech is justified only by its informational value to consumers.  Its results were silly—“[a]fter all, if faced with the choice between an annual website report and product packaging, a seller would predictably opt for the former,” but the majority’s approach made it easier to impose a packaging disclosure requirement than a website disclosure.  As I noted above, this had nothing to do with AMI, since the new rule applies to anti-deception disclosures as well.  Zauderer “unsurprisingly used the word ‘advertising’ numerous times in the relevant part of the opinion, but only because that was the particular factual context in which the case arose. For what it’s worth, the Court also used ‘commercial speech’ and ‘commercial speaker’ a number of times in the same part of the opinion when explaining the rationale for the relaxed First Amendment standard it set forth, and it also did so when framing the question it addressed in that part of its opinion.”  Nor did AMI even stop to address whether “labels” were more like “advertising” than like “non-advertising commercial speech,” because Zauderer applies to commercial speech.  Hurley isn’t a commercial speech case, and United Foods merely described Zauderer’s outcome.
 
Under Zauderer, this disclosure was purely factual and uncontroversial—a standard that must be assessed in light of Zauderer’s rationale, which is the value of commercial speech in providing consumers with useful information about products and services. That value is supported by the disclosure of purely factual and accurate information; thus Zauderer requires that the factual disclosure must be non-deceptive, and cannot prescribe “what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”  The disclosure must be uncontroversially factual: there could be no “disagree[ment] with the truth of the facts required to be disclosed.” “[E]ven if the disclosure qualifies as ‘purely factual,’ it would still fall outside of Zauderer review if the accuracy of the particular information disclosed were subject to dispute.”  The meaning of “uncontroversial” should be tethered to the core question of whether the disclosure is “factual.” Were it not so, AMI should have come out the other way, as the panel majority recognized.
 
Under those principles, the requirement to identify whether a product has “been found to be ‘DRC conflict free’” calls for disclosure of “purely factual and uncontroversial” information, because “DRC conflict free” is a defined term of art.  It’s not misleading, especially in its context, which is a description of the manufacturer’s attempts to identify the source of the minerals it uses.  The SEC, for example, approved this language:
 
Because we cannot determine the origins of the minerals, we are not able to state that products containing such minerals do not contain conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country. Therefore, under  the federal securities laws we must describe the products containing such minerals as having not been found to be ‘DRC conflict free.’ Those products are listed below.
 
That’s not a confession of an ethical taint.  The fact that the issuer would prefer not to say anything doesn’t distinguish this from many other disclosures, like calorie counts, nutritional information, and disclosures about the presence of mercury. “Such disclosures of course can elicit a reaction by consumers—that is often the point, as with the country-of-origin rule upheld in AMI—but the disclosures still remain factual and truthful.” 
 
Under this rule, the government can’t misleadingly redefine “peace” to mean “war”—a consumer would have no reason to suppose that this redefinition had occurred.  Likewise, statements of opinion such as “this product is environmentally unsustainable” are outside Zauderer, as compared to “this product releases x units of ozone in y hours,” a pure fact.  There could be difficult questions at the margin, but that’s standard.  Also, “constitutional protections outside of the First Amendment might constrain the government’s ability to compel disclosures—for instance, if the disclosures facilitated private discrimination. See Palmore v. Sidoti, 466 U.S. 429 (1984).”  But that didn’t matter here.
 
The dissent would also have found that the disclosures survived Central Hudson.  The government’s interest isn’t just to promote peace in the DRC.  It’s to do so “by reducing funding to armed groups in the DRC region from trade in conflict minerals.” And, like country of origin labeling, the disclosure rule “operates on the basis of assumptions about the reaction of investors to disclosures about a product’s place of origin.”  This is a substantial government interest.  The disclosure directly advances that interest.  AMI held that “evidentiary parsing is hardly necessary when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait.”  The requirement of due diligence on product supply chains plus disclosure of the results of that due diligence “encourages manufacturers voluntarily to reduce their reliance on conflict minerals from the DRC and adjoining countries,” and disclosure further enables consumers and investors to exert pressure on manufacturers to minimize the use of conflict minerals from the DRC region.  This was a sufficiently reasonable fit between means and ends.
 
Moreover, deference to the political branches’ predictive judgment was more warranted in the arena of foreign affairs.  Nor did the cost of implementation affect the reasonability of the means chosen.  Recall that the production audit doesn’t raise First Amendment questions; once that’s done, obligating issuers to use a shorthand phrase and put it on their website/in SEC reports isn’t unduly burdensome.  [Yes!  Food manufacturers don’t get to include the cost of determining the calorie count of a food in the costs of disclosure—at least not if we don’t want the First Amendment to become super-Lochner.]
 
Even if there were uncertainty about Congress’s predictive judgments about the effect of the disclosure on the conflict in the DRC, the court should defer to the political branches’ assessments, and Congress determined that trade in conflict minerals was helping to finance conflict.  In Holder v. Humanitarian Law Project, 561 U.S. 1 (2010), the Court deferred to the political branches’ foreign policy judgments even under strict scrutiny; the more so here. Plus, constitutionality should not turn on a post hoc referendum on a law’s effectiveness at a particular point in time. “Otherwise, a law’s constitutionality might wax and wane depending on the precise time when its validity is assessed.”  The relevant question is whether, at enactment, the disclosure regime was reasonably designed to reduce the funding of armed groups in the DRC. [This is different from assessing the truthfulness of the disclosure over time, which is the cholesterol example.]
 
Moreover, the rule was having its desired effect even if its larger effects were uncertain: companies in the US were now avoiding DRC-sourced minerals, which was the direct aim. Unintended ripple effects shouldn’t invalidate the law; those should be for the political branches to judge.