Antitrust Law Daily Wrap Up, ADVERTISING—M.D. Pa.: False advertising, unfair competition claims dismissed with prejudice; attorney fees, costs denied, (Aug 18, 2015)

By Michael Menzhuber, J.D., LL.M.

A dental supply company’s Lanham Act false advertising and unfair competition claims against a competitor were dismissed with prejudice by the federal district court in Harrisburg, Pennsylvania, but without an award of attorney fees and costs to the defendant competitor. The competitor was denied attorney fees and costs because such an award was meant to compensate a defendant for incurring the expenses of litigation without the benefit of a final determination (Dentsply International Inc. v. Bio-Pure Products Inc., August 17, 2015, Rambo, S.).

Background. Dentsply International Inc., a dental supply company, filed a complaint against Bio-Pure Products Inc. for false advertising and unfair competition. A year after filing the complaint, Dentsply filed a motion to dismiss the action without prejudice on the basis that the action was merely in its preliminary stages. Bio-Pure did not oppose the motion to dismiss but contended that it should be with prejudice and include an award of costs and attorneys’ fees.

Dismissal of Action. The court determined that a dismissal without prejudice was appropriate because the case had not progressed far beyond the pleadings stage. However, because Bio-Pure had demonstrated financial prejudice in the form of fees and costs, the dismissal without prejudice should be conditioned on Dentsply paying all of Bio-Pure’s reasonable costs and attorney fees.

As an alternative to a dismissal without prejudice being conditioned on the payment of Bio-Pure’s reasonable costs and attorneys’ fees, Dentsply requested that the action be dismissed with prejudice in lieu of reimbursement. The court determined that this was an appropriate disposition of the action, despite Bio-Pure’s request for a reimbursement of costs and attorneys’ fees. The court noted that the purpose of an award of costs and attorneys’ fees was to compensate the defendant for having incurred the expenses of litigation without the benefit of a final determination on the controversy. This consideration was not necessary in the present case because the termination of the litigation gave Bio-Pure a final determination without the additional expense it would have had to incur by proceeding to trial on the merits.

The case is No. 1:14-cv-0848.

Attorneys: Devin J. Chwastyk (McNees Wallace & Nurick LLC) for Dentsply International Inc. Christopher J. Conrad (Marshall Dennehey Warner Coleman and Goggin) for Bio-Pure Products, Inc.

Companies: Dentsply International Inc.; Bio-Pure Products Inc.

Cases: Advertising PennsylvaniaNews