Do implicit falsity plaintiffs have to plead the existence of a survey?

Vincent v. Utah Plastic Surgery Society, — Fed.Appx. —-,
2015 WL 5090868, No. 13–4146 (10th Cir. Aug. 31, 2015)
 
Plaintiffs (cosmetic surgeons) sued defendants (plastic
surgeons) for false advertising under the Lanham Act and monopolization under
the Sherman Act by running billboard ads called “Public Safety Announcements,”
allegedly promoting the deceptive message that cosmetic surgery is safer when
performed by plastic surgeons rather than cosmetic surgeons.   The
Sherman Act claim failed.
 
The holding of note: plaintiffs conceded they were bringing
implied falsity claims.  Because this
requires a showing of actual deception, they needed extrinsic evidence to show
that “a statistically significant part of the commercial audience holds the
false belief allegedly communicated by the challenged advertisement.” But the
complaint didn’t plead any specific facts about consumer deception.  The allegation that “Defendants’ false and
misleading statements have created confusion among Plaintiffs’ clients,
potential clients, and will continue to do so if permitted to continue,” unsupported
by even a single relevant fact, was insufficient. 
 
Nor did generally pleading that they suffered
damages in the form of lost sales and potential customers suffice to allege
sufficient facts to prove an entitlement to damages.  By way of example, “the complaint does not
indicate how much Plaintiffs’ profits have decreased since Defendants began
their advertising campaign; it does not quantify or estimate the decrease in
goodwill; it does not quantify the number of potential customers who allegedly
have been lost because of Defendants’ statements or how that number would be
measured.”

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