Circuit Split on False Advertising Standing: Eighth Circuit Passes on Justice Alito's Test
The Eighth Circuit did not take sides on a circuit split on false advertising standing in American Ass'n of Orthodontists v. Yellow Book USA, 434 F.3d 1100 (8th Cir. 2006). The AAO is a national trade organization of orthodontists. They sued Yellow Book for false advertising because Yellow Book lists general dentists under the heading "Dentists-Orthodontists."
The circuits are split as to the proper test for standing for a false advertising claim: (1) some circuits hold only a competitor may have false advertising standing; (2) other circuits apply a more flexible multi-factor tests that permits noncompetitor standing. The Eighth Circuit noted the split but declined to select a test because the AAO would fail to establish standing under either test.
One of the tests presented by the Eighth Circuit was crafted by Justice Alito in a pair of decisions: Joint Stock Society v. UDV North America, Inc., 266 F.3d 164 (3rd Cir. 2001) and Conte Bros. Automotive, Inc. v. Quaker State Slick-50, Inc., 165 F.3d 221 (3rd Cir. 1998). This test has been adopted in the Fifth Circuit and recently by the Northern District of Georgia in a suit involving McDonald's.
