Antitrust Law Daily Wrap Up, ADVERTISING—D. Colo.: Law firm not liable for advertising rates and fees, (Nov 25, 2013)

By Jody Coultas, J.D.

Attorney Stephen Berken failed to state Lanham Act false advertising claims against Michael Jude and his law firm Jude Law, LLC for allegedly falsely advertising the firm’s rates and fees, the federal district court in Denver has held (Berken v. Jude, November 22, 2013, Matsch, R.). Berken also failed to state a Colorado Consumer Protection Act (CPA) claim based on a failure to show an actual injury.

Both attorneys practice consumer bankruptcy law in Denver. Jude Law placed ads on Google Words, so that its advertisements would appear whenever someone searched Google for information on Denver bankruptcy. After Berken had clients leave for Jude Law, Berken filed the claims alleging that Jude Law’s advertising of a flat $500 fee for Chapter 7 bankruptcies was false and constituted deceptive business practices.

Lanham Act. Berken could not state a Lanham Act claim against Jude Law on the basis of false endorsement or association, according to the court. The complaint did not allege that Jude Law’s advertising caused confusion or mistake as to Jude Law’s affiliation, connection, or its association with another lawyer or law firm, or as to the origin, sponsorship or approval of Jude’s services by another person.

The court held that there was no reasonable basis for the claim that Berken was injured by the advertising. To recover money damages in a non-comparative advertising case, a plaintiff must prove an actual injury stemming from the advertisements in question. The clients that retained Judge Law stated that the advertising had nothing to do with their decision to defect from Berken. Thus, Berken could not obtain money damages.

Berken also was denied a preliminary injunction against Judge Law for failure to prove a likelihood that the advertising caused or will cause an injury, according to the court. Courts may presume injury when the parties are “obvious competitors” with respect to the service being misrepresented. Berken charged substantially more than Jude Law, and the two parties provide the same services in the same market. Thus, Berken was therefore entitled to a presumption that the advertisements caused him injury. However, Berken failed to support that presumption with any evidence of injury. There was no evidence that the advertising resulted in lost clients. Berken failed to put forth consumer testimony, consumer surveys, or market studies showing if or how the ads affected consumer behavior in shopping for legal services for bankruptcies.

Consumer Protection Act. Berken’s CPA claim failed because he did not show that he suffered injury as a result of the advertising, according to the court. There was no evidence that Berken had been injured or was likely to be injured by the alleged misrepresentations.

The case is No. 12-cv-02555-RPM.

Attorneys: Richard B. Wynkoop (Wynkoop Law Office, PLLC) for Stephen E. Berken. Alan D. Avery (Jaudon & Avery, LLP) for Michael Jude and Jude Law, LLC.

Companies: Jude Law, LLC; Google, Inc.

Cases: Advertising StateUnfairTradePractices ColoradoNews