Phil Cannella is a leader in the insurance industry. As a leader, he has come under scrutiny not only from regulatory agencies but also those envious of his success.
It is a sad commentary on the state of our civilization that fair competition is so hard to find. This is for the simple reason that those who cannot succeed on their own will often resort to underhanded ventures in order to make a gain. In some cases, this means unfairly taking advantage of a competitor.
In the case of Phil Cannella, he became the target of several competitors who saw his increased market share as a threat to their survival. These predators became determined to remove Phil Cannella from the picture by taking him out of business. To accomplish this, they launched an Internet defamation campaign designed to ruin his reputation online so that when a prospective client conducted an internet search on him they would find this “new truth” and would decide not to invest with him. It was a successful campaign and resulted in much lost business.
In order to restore his good name, Phil Cannella filed a lawsuit in federal court to discover the identity of these anonymous internet posters. After discovery was completed and the identities of the key people known, he amended his complaint and he cited violations of the Lanham Act. To define this and put it in perspective, this statement from the judge presiding on the case explains it well:
“Section 43(a) of the Lanham Act was enacted to promote honesty and fair play in the commercial context and ‘to stop the kind of unfair competition that consists of lying about goods or services.’ See Castrol Inc., v. Pennzoil Co., 987 F.2d 939, 941 (3d. Cir. 1993).”
After Phil Cannella’s legal team filed the complaint in court, the defendant attempted to get the case dismissed on the basis that it lacked legal grounds to the claims. But Phil Cannella’s sword of truth knows no boundaries when it comes to bringing the truth and piercing the veil of evil. Cannella’s legal team provided a very complete answer to this motion to dismiss and once the judge reviewed the matter his response was eye-opening.
“For Plaintiffs to establish liability under Section 43(a), they must demonstrate that the Moving Defendants’ statements were either literally false or literally true or ambiguous, but had the tendency to deceive consumers….
“A literal false statement must be unambiguous and can either be false explicitly or through implication when considering the advertisement in its entirety.… A determination of literal falsity rests on an analysis of the message in context. Johnson & Johnson-Merck Consumer Pharm. Co. v. Rhone-Poulenc Rorer Pharm.,Inc., 19 F.3d 125, 129 (3d Cir. 1994).”
“If a plaintiff cannot show the statements were literally false, plaintiff has the burden to demonstrate that the statements were ambiguous and actually deceived its consumers. QVC Inc. v. Your Vitamins Inc., 439 F. App’x 165, 168 (3d Cir. 2011).
To carry plaintiff’s burden, a plaintiff may not merely assert that consumers “could” be deceived, but must plead actual deception. See Castrol, 987 F.2d at 943. Additionally, opinions are not actionable, and only statements of fact capable of being proven false and/or verifiable are actionable under the Lanham Act. Robert Bosch LLC v. Pylon Mfg. Corp., 632 F. Supp. 2d 362,366 (D. Del. 2009).”
The documentation provided to the judge was very expertly compiled and when the judge looked it over he found that it met the needed standards to proceed on in the justice system and that the claim should not be dismissed.
“The court finds that Plaintiffs have alleged at least some statements that are explicitly factual and are capable of being verified…. These statements are not opinion and are capable of being verified…. Plaintiffs have still met their burden by pleading consumer deception.… In addition, Plaintiffs have asserted that in view of the false and misleading statements made by Defendants, prospective customers cancelled appointments with Plaintiffs and that existing clients terminated contracts with Plaintiffs. Therefore, Plaintiffs have pled both actual consumer deception and a false or misleading statement made by the Moving Defendants.”
Phil Cannella is pressing forward to ascertain the truth behind the attack and bring the sword of truth to bear upon those who peddle in lies.
