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9th Circuit Skeptical of Symantec False Ad Row

June 14, 2016

The U.S. Court of Appeals for the Ninth Circuit has affirmed dismissal of a class action false advertisement lawsuit filed against Symantec Corporation for allegedly hiding a security vulnerability, based on the plaintiff’s failure to provide specific examples of misrepresentation she relied upon. The decision upheld the previous ruling of Judge Tigar of the Northern Distrcit of California District Court. Law360 covered Fenwick’s successful representation of Symantec in the case.

Fenwick litigation partner Laurence Pulgram, who argued the case on behalf of Symantec, emphasized that the three-judge panel was “correct in highlighting the lack of a statement that was relied upon by the consumer,” as well as “the absence of a representation that was actually false, such as that Symantec's source code was secret or that the company's products could never be hacked,” Law360 reported on June 14.

Crucially, the decision gave clarification to the limits of the standard set by the 2009 In re Tobacco II decision, in which the California Supreme Court had held that it is “unreasonable to expect plaintiffs to allege individualized reliance on specific misrepresentations when a marketing campaign is particularly extensive and pervasive.” Pulgram successfully contested the plaintiff’s attempt to invoke the Tobacco II standard against Symantec, saying "if a mere branding of a product was enough to say, 'I can now sue you because you weren’t secure ... limiting claims to real cases with real losses by real people who saw real ads would be out the window. I don't think Tobacco II could ever go that far."

Speaking to the implications of the 9th Circuit’s decision, Pulgram noted that "this opinion confirms that the 'Tobacco II exception' does not swallow the rule: a plaintiff must still plead and prove a specific false advertisement she saw and relied on — excepting only an ad campaign like the tobacco companies’ decades-long saturation advertising."

The full June 14 and June 22 articles are available through the Law360 website (subscription required).