LegalZoom.com Inc v. Rocket Lawyer Incorporated

Filing 177

PROPOSED JURY INSTRUCTIONS (Annotated set) filed by Defendant Rocket Lawyer Incorporated.. (Attachments: # 1 Disputed Proposed Jury Instructions)(Jones, Michael)

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Patricia L. Glaser (SBN 55668)
[e-mail]
Fred D. Heather (SBN 110650)
[e-mail]
Aaron P. Allan (SBN 144406)
[e-mail]
GLASER WEIL FINK HOWARD
AVCHEN & SHAPIRO LLP
10250 Constellation Blvd., 19th Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
LEGALZOOM.COM, INC.
Forrest A. Hainline III (SBN 64166)
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
GOODWIN PROCTER LLP
Three Embarcadero Center, 24th Floor
San Francisco, California 94111
Tel.: [phone]
Fax.: [phone]

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Michael T. Jones (SBN 290660)
[e-mail]
GOODWIN PROCTER LLP
135 Commonwealth Drive
Menlo Park, California 94025-1105
Tel.: [phone]
Fax.: [phone]

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[Addt’l counsel listed in signature block]

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Attorneys for Defendant
ROCKET LAWYER INCORPORATED
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
LEGALZOOM.COM, INC., a Delaware Case No. 2:12-cv-09942-GAF-AGR
corporation,
UNDISPUTED JURY
Plaintiff,
INSTRUCTIONS
PTC:
November 10, 2014
v.
1:30 p.m.
Trial:
December 9, 2014
ROCKET LAWYER
Judge:
Judge Gary A. Feess
INCORPORATED, a Delaware
Courtroom: 740
corporation,
255 East Temple Street
Los Angeles, CA 90012
Defendant.
Action Filed: November 20, 2012

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Pursuant to the Court’s Case Management and Scheduling Order, dated April

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11, 2013, Plaintiffs LegalZoom.com, Inc. and Defendant Rocket Lawyer

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Incorporated hereby provide their undisputed jury instructions

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Dated: October 28, 2014

Respectfully submitted,

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By:

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Attorneys for Defendant
ROCKET LAWYER INCORPORATED

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/s/ Michael T. Jones
Forrest A. Hainline III
[e-mail]
Hong-An Vu (SBN 266268)
[e-mail]
Michael T. Jones (SBN 290660)
[e-mail]
Brian W. Cook (Pro Hac Vice)
[e-mail]
GOODWIN PROCTER LLP
Three Embarcadero Center
24th Floor
San Francisco, California 94111
Tel.: [phone]
Fax.: [phone]

Dated: October 28, 2014

Respectfully submitted,

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By:

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/s/ Fred D. Heather
PATRICIA GLASER
FRED HEATHER
AARON ALLAN

Attorneys for Plaintiff
LEGALZOOM.COM, INC.

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ACTIVE/78363877.8

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TABLE OF UNDISPUTED INSTRUCTIONS

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Page

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1: Duty Of Jury .......................................................................................................... 1

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Authority: 9th Cir. Civ. Jury Instr. § 1.1B

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2: Conduct Of Jury .................................................................................................... 2

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Authority: 9th Cir. Civ. Jury Instr. § 1.12

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3: Outline Of Trial ..................................................................................................... 4

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Authority: 9th Cir. Civ. Jury Instr. § 1.19

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4: Claims And Defenses ............................................................................................ 5

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Authority: 9th Cir. Civ. Jury Instr. § 1.2

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5: No Transcript ......................................................................................................... 6

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Authority: 9th Cir. Civ. Jury Instr. § 1.13

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6: Taking Notes ......................................................................................................... 7

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Authority: 9th Cir. Civ. Jury Instr. § 1.14

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7: What Is Evidence................................................................................................... 8

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Authority: 9th Cir. Civ. Jury Instr. § 1.6

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8: What Is Not Evidence............................................................................................ 9

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Authority: 9th Cir. Civ. Jury Instr. § 1.7

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9: Ruling On Objections .......................................................................................... 10

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Authority: 9th Cir. Civ. Jury Instr. § 1.10

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10: Evidence For Limited Purpose .......................................................................... 11

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Authority: 9th Cir. Civ. Jury Instr. § 1.8

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11: Direct And Circumstantial Evidence................................................................. 12

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Authority: 9th Cir. Civ. Jury Instr. § 1.9

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12: Credibility Of Witnesses ................................................................................... 13

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Authority: 9th Cir. Civ. Jury Instr. § 1.11

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13: Use Of Interrogatories Of A Party .................................................................... 14

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Authority: 9th Cir. Civ. Jury Instr. § 2.10

ACTIVE/78363877.8

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14: Deposition In Lieu Of Live Testimony ............................................................. 15

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Authority: 9th Cir. Civ. Jury Instr. § 2.4

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15: Stipulations Of Fact ........................................................................................... 16

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Authority: 9th Cir. Civ. Jury Instr. § 2.2

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16: Expert Opinion .................................................................................................. 17

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Authority: 9th Cir. Civ. Jury Instr. § 2.11

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17: Charts And Summaries Not Received In Evidence .......................................... 18

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Authority: 9th Cir. Civ. Jury Instr. § 2.12

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18: Charts And Summaries In Evidence ................................................................. 19

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Authority: 9th Cir. Civ. Jury Instr. § 2.13

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19: Bench Conferences And Recesses .................................................................... 20

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Authority: 9th Cir. Civ. Jury Instr. § 1.18

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20: Burden Of Proof—Preponderance Of The Evidence ........................................ 21

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Authority: 9th Cir. Civ. Jury Instr. § 1.3

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21: Burden Of Proof—Clear And Convincing Evidence ........................................ 22

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Authority: 9th Cir. Civ. Jury Instr. § 1.4

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22: Elements Of False Advertising (Lanham Act — Federal Law)........................ 23

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Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.

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1997); Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1054 (9th Cir.

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2008); 15 U.S.C. § 1125(a)(1)(B).

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23: Proof Required For Falsity ................................................................................ 24

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Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.

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1997)

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24: Proof Required For Literal Falsity .................................................................... 25

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Authority: Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir.

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2007); Scotts Co. v. United Indust. Corp., 315 F.3d 264, 275 (4th Cir. 2002)

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25: Requirement To Consider Advertisement In Context....................................... 26

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Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1139 (9th Cir. 1997);

ACTIVE/78363877.8

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Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995); Order Re: Pl’s Mot. Summ.

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J. at 7, ECF No. 44.

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26: Statements Of Opinion And Puffery ................................................................. 27

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Authority: Smithkline Beecham Consumer Healthcare, L.P. v. Johnson & Johnson-

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Merck, 906 F. Supp. 178, 185-86 (S.D.N.Y. 1995); Am. Home Prods. Corp. v.

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Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y. 1987).

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27: Proof Of Consumer Deception .......................................................................... 28

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Authority: Smithkline Beecham Consumer Healthcare, L.P. v. Johnson & Johnson-

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Merck, 906 F. Supp. 178, 185-86 (S.D.N.Y. 1995); Am. Home Prods. Corp. v.

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Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y. 1987).

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28: Proof Of Consumer Deception .......................................................................... 29

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Authority: Order Re: Pl’s Mot. Summ. J. at 10, ECF No. 44; William H. Morris Co.

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v. Group W, Inc., 66 F.3d 255, 258 (9th Cir. 1995).

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29: Requirement To Show Influence On Purchasing Decision .............................. 30

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Authority: Rice v. Fox Broad. Co., 330 F.3d 1170, 1181 (9th Cir. 2003); Cook,

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Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 244 (9th Cir.

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1990).

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30: Requirement To Show That Defendant-Party’s Conduct Caused Harm .......... 31

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Authority: Rice v. Fox Broad. Co., 330 F.3d 1170, 1181 (9th Cir. 2003); Cook,

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Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 244 (9th Cir.

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1990).

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31: Damages – Proof ............................................................................................... 32

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Authority: 9th Cir. Civ. Jury Instr. § 5.1

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32: Plaintiff-Party’s Actual Damages – Lost Profits ............................................... 33

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Authority: BAJI § 10:3 Special Instruction 5; Novell Inc. v. Network Trade Center,

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25 F. Supp. 2d 1233, 1240 (D. Utah 1998); Morley-Murphy Co. v. Zenith

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Electronics Corp, 142 F.3d 373, 381 (7th Cir 1998).

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33: Proof To A Reasonable Certainty ..................................................................... 34

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Authority: BAJI § 10:3 Special Instruction 6; Richfield Oil Corp. v. Karseal Corp.,

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271 F. 2d 709, 728 n.4 (9th Cir. 1959).

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34: False Advertising — California Law ................................................................ 35

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Authority: California Business and Professions Code § 17500; California Antitrust

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& Unfair Competition Law (Third) Volume 2: Unfair Competition, §14.03-14.05.

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35: Duty Of Jury ...................................................................................................... 36

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Authority: 9th Cir. Civ. Jury Instr. § 1.1C

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36: Duty To Deliberate ............................................................................................ 37

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Authority: 9th Cir. Civ. Jury Instr. § 3.1

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37: Communication With Court .............................................................................. 38

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Authority: 9th Cir. Civ. Jury Instr. § 3.2

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38: Return Of Verdict .............................................................................................. 39

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Authority: 9th Cir. Civ. Jury Instr. § 3.3

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39: Interstate Commerce 40Authority: 15 U.S.C. § 1125(a); Summit Tech. v. High-

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Line Medical Instruments, Co., 933 F. Supp. 918, 934 (C.D. Cal. 1996).

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ACTIVE/78363877.8

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UNDISPUTED INSTRUCTION NUMBER 1

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DUTY OF JURY

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Ladies and gentlemen: You are now the jury in this case. It is my duty to
instruct you on the law.
You must not infer from these instructions or from anything I may say or do

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as indicating that I have an opinion regarding the evidence or what your verdict

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should be.

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It is your duty to find the facts from all the evidence in the case. To those
facts you will apply the law as I give it to you. You must follow the law as I give it

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to you whether you agree with it or not. And you must not be influenced by any

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personal likes or dislikes, opinions, prejudices, or sympathy. That means that you

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must decide the case solely on the evidence before you. You will recall that you

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took an oath to do so.

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In following my instructions, you must follow all of them and not single out
some and ignore others; they are all important.

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Authority: 9th Cir. Civ. Jury Instr. § 1.1B

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UNDISPUTED INSTRUCTION NUMBER 2

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CONDUCT OF JURY

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I will now say a few words about your conduct as jurors.

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First, keep an open mind throughout the trial, and do not decide what the

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verdict should be until you and your fellow jurors have completed your deliberations

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at the end of the case.

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Second, because you must decide this case based only on the evidence

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received in the case and on my instructions as to the law that applies, you must not

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be exposed to any other information about the case or to the issues it involves during

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the course of your jury duty. Thus, until the end of the case or unless I tell you

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otherwise:

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Do not communicate with anyone in any way and do not let anyone else

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communicate with you in any way about the merits of the case or anything to

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do with it. This includes discussing the case in person, in writing, by phone or

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electronic means, via e-mail, text messaging, or any Internet chat room, blog,

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Web site or other feature. This applies to communicating with your fellow

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jurors until I give you the case for deliberation, and it applies to

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communicating with everyone else including your family members, your

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employer, the media or press, and the people involved in the trial, although

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you may notify your family and your employer that you have been seated as a

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juror in the case. But, if you are asked or approached in any way about your

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jury service or anything about this case, you must respond that you have been

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ordered not to discuss the matter and to report the contact to the court.

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Because you will receive all the evidence and legal instruction you properly

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may consider to return a verdict: do not read, watch, or listen to any news or

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media accounts or commentary about the case or anything to do with it; do

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not do any research, such as consulting dictionaries, searching the Internet or

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using other reference materials; and do not make any investigation or in any

ACTIVE/78363877.8

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other way try to learn about the case on your own.

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The law requires these restrictions to ensure the parties have a fair trial based

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on the same evidence that each party has had an opportunity to address. A juror who

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violates these restrictions jeopardizes the fairness of these proceedings, and a

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mistrial could result that would require the entire trial process to start over. If any

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juror is exposed to any outside information, please notify the court immediately.

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Authority: 9th Cir. Civ. Jury Instr. § 1.12

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UNDISPUTED INSTRUCTION NUMBER 3

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OUTLINE OF TRIAL

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Trials proceed in the following way: First, each side may make an opening

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statement. An opening statement is not evidence. It is simply an outline to help you

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understand what that party expects the evidence will show. A party is not required

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to make an opening statement.

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The plaintiff will then present evidence, and counsel for the defendant may

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cross-examine. Then the defendant may present evidence, and counsel for the

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plaintiff may cross-examine.

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After the evidence has been presented, I will instruct you on the law that
applies to the case and the attorneys will make closing arguments.
After that, you will go to the jury room to deliberate on your verdict.

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Authority: 9th Cir. Civ. Jury Instr. § 1.19

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UNDISPUTED INSTRUCTION NUMBER 4

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CLAIMS AND DEFENSES

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To help you follow the evidence, I will give you a brief summary of the

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positions of the parties:
The plaintiff claims that the defendant has engaged in false advertising and

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unfair competition under federal and state laws. The plaintiff has the burden of

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proving these claims.

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The defendant denies those claims and also contends that the plaintiff has

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engaged in false advertising and unfair competition under federal and state laws.

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The defendant has the burden of proof on these counterclaims and affirmative

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defenses.

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The plaintiff denies defendants counterclaims and affirmative defenses.

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Authority: 9th Cir. Civ. Jury Instr. § 1.2

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UNDISPUTED INSTRUCTION NUMBER 5

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NO TRANSCRIPT

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During deliberations, you will have to make your decision based on what you

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recall of the evidence. You will not have a transcript of the trial. I urge you to pay

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close attention to the testimony as it is given.

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If at any time you cannot hear or see the testimony, evidence, questions or
arguments, let me know so that I can correct the problem.

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Authority: 9th Cir. Civ. Jury Instr. § 1.13

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UNDISPUTED INSTRUCTION NUMBER 6

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TAKING NOTES

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If you wish, you may take notes to help you remember the evidence. If you

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do take notes, please keep them to yourself until you and your fellow jurors go to

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the jury room to decide the case. Do not let note-taking distract you. When you

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leave, your notes should be left in the envelope in the jury room. No one will read

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your notes. They will be destroyed at the conclusion of the case.

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Whether or not you take notes, you should rely on your own memory of what
was said. Notes are only to assist your memory. You should not be overly
influenced by your notes or those of your fellow jurors.

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Authority: 9th Cir. Civ. Jury Instr. § 1.14

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UNDISPUTED INSTRUCTION NUMBER 7

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WHAT IS EVIDENCE

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The evidence you are to consider in deciding what the facts are consists of:

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the sworn testimony of any witness;

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2.

the exhibits which are received into evidence; and

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3.

any facts to which the lawyers have agreed.

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Authority: 9th Cir. Civ. Jury Instr. § 1.6

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UNDISPUTED INSTRUCTION NUMBER 8

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WHAT IS NOT EVIDENCE

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In reaching your verdict, you may consider only the testimony and exhibits

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received into evidence. Certain things are not evidence, and you may not consider

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them in deciding what the facts are. I will list them for you:

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1.

Arguments and statements by lawyers are not evidence. The lawyers

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are not witnesses. What they have said in their opening statements,

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will say in their closing arguments, and at other times is intended to

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help you interpret the evidence, but it is not evidence. If the facts as

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you remember them differ from the way the lawyers have stated them,

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your memory of them controls.

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2.

Questions and objections by lawyers are not evidence. Attorneys have

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a duty to their clients to object when they believe a question is

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improper under the rules of evidence. You should not be influenced by

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the objection or by the court’s ruling on it.

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3.

Testimony that has been excluded or stricken, or that you have been

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instructed to disregard, is not evidence and must not be considered. In

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addition sometimes testimony and exhibits are received only for a

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limited purpose; when I give a limiting instruction, you must follow it.

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4.

Anything you may have seen or heard when the court was not in

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session is not evidence. You are to decide the case solely on the

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evidence received at the trial.

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Authority: 9th Cir. Civ. Jury Instr. § 1.7

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UNDISPUTED INSTRUCTION NUMBER 9

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RULING ON OBJECTIONS

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There are rules of evidence that control what can be received into evidence.

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When a lawyer asks a question or offers an exhibit into evidence and a lawyer on the

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other side thinks that it is not permitted by the rules of evidence, that lawyer may

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object. If I overrule the objection, the question may be answered or the exhibit

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received. If I sustain the objection, the question cannot be answered, and the exhibit

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cannot be received. Whenever I sustain an objection to a question, you must ignore

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the question and must not guess what the answer might have been.

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Sometimes I may order that evidence be stricken from the record and that you

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disregard or ignore the evidence. That means that when you are deciding the case,

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you must not consider the evidence that I told you to disregard.

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Authority: 9th Cir. Civ. Jury Instr. § 1.10

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UNDISPUTED INSTRUCTION NUMBER 10

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EVIDENCE FOR LIMITED PURPOSE

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Some evidence may be admitted for a limited purpose only.

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When I instruct you that an item of evidence has been admitted for a limited

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purpose, you must consider it only for that limited purpose and for no other.

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Authority: 9th Cir. Civ. Jury Instr. § 1.8

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UNDISPUTED INSTRUCTION NUMBER 11

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DIRECT AND CIRCUMSTANTIAL EVIDENCE

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Evidence may be direct or circumstantial. Direct evidence is direct proof of a

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fact, such as testimony by a witness about what that witness personally saw or heard

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or did. Circumstantial evidence is proof of one or more facts from which you could

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find another fact. You should consider both kinds of evidence. The law makes no

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distinction between the weight to be given to either direct or circumstantial

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evidence. It is for you to decide how much weight to give to any evidence.

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Authority: 9th Cir. Civ. Jury Instr. § 1.9

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UNDISPUTED INSTRUCTION NUMBER 12

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CREDIBILITY OF WITNESSES

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In deciding the facts in this case, you may have to decide which testimony to

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believe and which testimony not to believe. You may believe everything a witness

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says, or part of it, or none of it. Proof of a fact does not necessarily depend on the

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number of witnesses who testify about it.

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In considering the testimony of any witness, you may take into account:

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1.

The opportunity and ability of the witness to see or hear or know the
things testified to;

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2.

The witness’s memory;

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3.

The witness’s manner while testifying;

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4.

The witness’s interest in the outcome of the case and any bias or
prejudice;

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5.

Whether other evidence contradicted the witness’s testimony;

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6.

The reasonableness of the witness’s testimony in light of all the
evidence; and

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7.

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The weight of the evidence as to a fact does not necessarily depend on the

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Any other factors that bear on believability.

number of witnesses who testify about it.

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Authority: 9th Cir. Civ. Jury Instr. § 1.11

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UNDISPUTED INSTRUCTION NUMBER 13

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USE OF INTERROGATORIES OF A PARTY

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Evidence will now be presented to you in the form of answers of one of the

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parties to written interrogatories submitted by the other side. These answers were

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given in writing and under oath, before the actual trial, in response to questions that

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were submitted in writing under established court procedures. You should consider

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the answers, insofar as possible, in the same way as if they were made from the

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witness stand.

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Authority: 9th Cir. Civ. Jury Instr. § 2.10

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Note: The parties seek to use this oral instruction before and only if

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interrogatories and answers are read to the jury; in such case, it may also be included

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in the concluding written instructions to the jury. The parties will not seek to use

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this oral instruction if answers to interrogatories are being used for impeachment

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only.

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UNDISPUTED INSTRUCTION NUMBER 14

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DEPOSITION IN LIEU OF LIVE TESTIMONY

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A deposition is the sworn testimony of a witness taken before trial. The

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witness is placed under oath to tell the truth and lawyers for each party may ask

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questions. The questions and answers are recorded.

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The deposition of [witness] was taken on [date]. You should consider

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deposition testimony, presented to you in court in lieu of live testimony, insofar as

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possible, in the same way as if the witness had been present to testify.

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Do not place any significance on the behavior or tone of voice of any person
reading the questions or answers.

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Authority: 9th Cir. Civ. Jury Instr. § 2.4

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UNDISPUTED INSTRUCTION NUMBER 15

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STIPULATIONS OF FACT

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The parties have agreed to certain facts to be placed in evidence as [Exhibit

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__] that will be read to you. You should therefore treat these facts as having been

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proved.

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Authority: 9th Cir. Civ. Jury Instr. § 2.2

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Note: Rocket Lawyer will only seek to use this instruction if the parties
stipulate to any facts in advance of trial.

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UNDISPUTED INSTRUCTION NUMBER 16

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EXPERT OPINION

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Some witnesses, because of education or experience, are permitted to state
opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may

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accept it or reject it, and give it as much weight as you think it deserves, considering

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the witness’s education and experience, the reasons given for the opinion, and all the

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other evidence in the case.

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Authority: 9th Cir. Civ. Jury Instr. § 2.11

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UNDISPUTED INSTRUCTION NUMBER 17

2

CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE

3

Certain charts and summaries not received in evidence may be shown to you

4

in order to help explain the contents of books, records, documents, or other evidence

5

in the case. They are not themselves evidence or proof of any facts. If they do not

6

correctly reflect the facts or figures shown by the evidence in the case, you should

7

disregard these charts and summaries and determine the facts from the underlying

8

evidence.

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Authority: 9th Cir. Civ. Jury Instr. § 2.12

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UNDISPUTED INSTRUCTION NUMBER 18

2

CHARTS AND SUMMARIES IN EVIDENCE

3

Certain charts and summaries may be received into evidence to illustrate

4

information brought out in the trial. Charts and summaries are only as good as the

5

underlying evidence that supports them. You should, therefore, give them only such

6

weight as you think the underlying evidence deserves.

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Authority: 9th Cir. Civ. Jury Instr. § 2.13

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UNDISPUTED INSTRUCTION NUMBER 19

2

BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to talk

3
4

with the attorneys out of the hearing of the jury, either by having a conference at the

5

bench when the jury is present in the courtroom, or by calling a recess. Please

6

understand that while you are waiting, we are working. The purpose of these

7

conferences is not to keep relevant information from you, but to decide how certain

8

evidence is to be treated under the rules of evidence and to avoid confusion and

9

error.

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Of course, we will do what we can to keep the number and length of these

11

conferences to a minimum. I may not always grant an attorney’s request for a

12

conference. Do not consider my granting or denying a request for a conference as

13

any indication of my opinion of the case or of what your verdict should be.

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Authority: 9th Cir. Civ. Jury Instr. § 1.18

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UNDISPUTED INSTRUCTION NUMBER 20

2

BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE

3

When a party has the burden of proof on any claim or affirmative defense by

4

a preponderance of the evidence, it means you must be persuaded by the evidence

5

that the claim or affirmative defense is more probably true than not true.

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7

You should base your decision on all of the evidence, regardless of which
party presented it.

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Authority: 9th Cir. Civ. Jury Instr. § 1.3

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UNDISPUTED INSTRUCTION NUMBER 21

2

BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE

3

When a party has the burden of proving any claim or defense by clear and

4

convincing evidence, it means that you must be persuaded by the evidence that the

5

claim or defense is highly probable. This is a higher standard of proof than proof by

6

a preponderance of the evidence.

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You should base your decision on all of the evidence, regardless of which
party presented it.

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Authority: 9th Cir. Civ. Jury Instr. § 1.4

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UNDISPUTED INSTRUCTION NUMBER 22

2

ELEMENTS OF FALSE ADVERTISING (Lanham Act — Federal Law)

3

Both parties have asserted claims against one another for false advertising

4

under the Lanham Act. To prove this claim, the party asserting the claim has the

5

burden of proving each of the following elements by a preponderance of the

6

evidence:

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(1)

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the other party made a false or misleading statement of fact about its

own product or another’s product in commercial advertising;
(2)

the statement actually deceived or has the tendency to deceive a

substantial segment of its audience;

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(3)

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decision;

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(4)

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the deception is material, in that it is likely to influence the purchasing

the other party caused its false or misleading statement to enter

interstate commerce; and
(5)

the party asserting the claim has been or is likely to be injured as a

16

result of the false or misleading statement, either by direct diversion of sales from

17

itself to the other party or by a lessening of the goodwill associated with its

18

products.

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I will now explain each of these elements in detail.

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Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th

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Cir. 1997); Newcal Indus., Inc. v. Ikon Office Solution, 513 F.3d 1038, 1054 (9th

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Cir. 2008); 15 U.S.C. § 1125(a)(1)(B).

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UNDISPUTED INSTRUCTION NUMBER 23

2

PROOF REQUIRED FOR FALSITY

3

To demonstrate falsity within the meaning of the Lanham Act, each plaintiff-

4

party must show that the other party’s statement was literally false, either on its face

5

or by necessary implication, or that the statement was literally true but likely to

6

mislead or confuse consumers.

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Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th
Cir. 1997).

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UNDISPUTED INSTRUCTION NUMBER 24

2

PROOF REQUIRED FOR LITERAL FALSITY

3

A statement is literally false or false on its face when it explicitly states

4

something that is untrue. If you determine that a defendant-party’s advertisement

5

can reasonably be understood to convey more than one message, then the

6

advertisement is not literally false. Only an unambiguous advertisement can be

7

literally false.

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Authority: Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 158 (2d
Cir. 2007); Scotts Co. v. United Indust. Corp., 315 F.3d 264, 275 (4th Cir. 2002).

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UNDISPUTED INSTRUCTION NUMBER 25

2

REQUIREMENT TO CONSIDER ADVERTISEMENT IN CONTEXT

3

When deciding whether a defendant-party’s advertisement is false or

4

misleading, you must consider the advertisement as a whole and in context. You

5

should not consider only a portion of the advertisement in isolation.

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7

Authority: Southland Sod Farms v. Stover Seed Co., 108 F.3d 1139 (9th Cir.

8

1997); Freeman v. Time, Inc., 68 F.3d 285, 289 (9th Cir. 1995); Order Re: Pl’s Mot.

9

Summ. J. at 7, ECF No. 44.

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UNDISPUTED INSTRUCTION NUMBER 26

2

STATEMENTS OF OPINION AND PUFFERY

3

Certain advertising claims are considered puffery and not statements of fact.

4

Puffery is exaggerated advertising, blustering, and boasting upon which no

5

reasonable buyer would rely. An example of puffery might be a claim of product

6

superiority that is so vague or highly subjective it will be understood as a mere

7

expression of the seller’s opinion. A misdescription of a specific or absolute

8

characteristic of a product is not puffery.

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10

Authority: Smithkline Beecham Consumer Healthcare, L.P. v. Johnson &

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Johnson-Merck, 906 F. Supp. 178, 185-86 (S.D.N.Y. 1995); Am. Home Prods.

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Corp. v. Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y. 1987).

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UNDISPUTED INSTRUCTION NUMBER 27

2

PROOF OF CONSUMER DECEPTION

3

If an advertisement is misleading, a footnote or disclaimer that is so

4

inconspicuously located or in such fine print that readers tend to overlook it will not

5

remedy the misleading nature of that false claim.

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7

Authority: Smithkline Beecham Consumer Healthcare, L.P. v. Johnson &

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Johnson-Merck, 906 F. Supp. 178, 185-86 (S.D.N.Y. 1995); Am. Home Prods.

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Corp. v. Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y. 1987).

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UNDISPUTED INSTRUCTION NUMBER 28

2

PROOF OF CONSUMER DECEPTION

3

If you find that an advertisement is not literally false, a plaintiff-party can

4

prevail on a Lanham Act claim only by demonstrating through reliable consumer

5

surveys or market research that consumers actually were deceived.

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7
8

Authority: Order Re: Pl’s Mot. Summ. J. at 10, ECF No. 44; William H.
Morris Co. v. Group W, Inc., 66 F.3d 255, 258 (9th Cir. 1995).

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UNDISPUTED INSTRUCTION NUMBER 29

2

REQUIREMENT TO SHOW INFLUENCE ON PURCHASING DECISION

3

If you find that a defendant-party’s advertisement is false or misleading, you

4

must consider whether the plaintiff-party has demonstrated that the deception is

5

“material,” or in other words, that the false or misleading nature of defendant-

6

party’s advertisement is likely to influence the purchasing decision.

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Authority: Rice v. Fox Broad. Co., 330 F.3d 1170, 1181 (9th Cir. 2003);
Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 244 (9th
Cir. 1990).

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UNDISPUTED INSTRUCTION NUMBER 30

2

REQUIREMENT TO SHOW THAT DEFENDANT-PARTY’S CONDUCT

3

CAUSED HARM

4

If you find that a defendant-party’s advertisement is materially false or

5

misleading, you must consider whether the plaintiff-party has proven that it was

6

harmed as a direct result of the materially false or misleading advertisement.

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Authority: Rice v. Fox Broad. Co., 330 F.3d 1170, 1181 (9th Cir. 2003);
Cook, Perkiss, and Liehe, Inc. v. N. Cal. Collection Serv., 911 F.2d 242, 244 (9th
Cir. 1990).

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UNDISPUTED INSTRUCTION NUMBER 31

2

DAMAGES - PROOF

3

It is the duty of the Court to instruct you about the measure of damages. By

4

instructing you about damages, the Court does not mean to suggest for which party

5

your verdict should be rendered.

6

If you find for a plaintiff-party, you must determine the plaintiff-party’s

7

damages. A plaintiff-party has the burden of proving damages by a preponderance

8

of the evidence. Damages means the amount of money that will reasonably and

9

fairly compensate a plaintiff-party for any injury the plaintiff-party can demonstrate

10

was caused by a defendant-party.

11

It is for you to determine what damages, if any, have been proved.

12

Your award must be based upon evidence and not upon speculation,

13

guesswork, or conjecture.

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Authority: 9th Cir. Civ. Jury Instr. § 5.1

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UNDISPUTED INSTRUCTION NUMBER 32

2

PLAINTIFF-PARTY’S ACTUAL DAMAGES – LOST PROFITS

3

Lost profits in this case are the profits that a plaintiff-party would have made

4

on sales it lost due to the defendant-party’s deceptive advertising. Lost profits only

5

exist if the plaintiff-party would have received those profits but for the deceptive

6

advertising, and must be able to be calculated with reasonable certainty.

7
8

Authority: BAJI § 10:3 Special Instruction 5; Novell Inc. v. Network Trade

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Center, 25 F. Supp. 2d 1233, 1240 (D. Utah 1998); Morley-Murphy Co. v. Zenith

10

Electronics Corp, 142 F.3d 373, 381 (7th Cir 1998).

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UNDISPUTED INSTRUCTION NUMBER 33

2

PROOF TO A REASONABLE CERTAINTY

3

A plaintiff-party’s right to recover is limited to damages that can be

4

determined with reasonable certainty from the evidence. A plaintiff-party is not

5

required to prove damages to a mathematical certainty (in other words, damages do

6

not need to be exactly computed). A plaintiff-party, however, is not entitled to

7

damages that are merely speculative, remote or uncertain. Damages are recoverable

8

if you are satisfied that they may be reasonably approximated from the evidence.

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Authority: BAJI § 10:3 Special Instruction 6; Richfield Oil Corp. v. Karseal
Corp., 271 F. 2d 709, 728 n.4 (9th Cir. 1959).

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UNDISPUTED INSTRUCTION NUMBER 34

2

FALSE ADVERTISING — CALIFORNIA LAW

3

I have just described the federal false advertising law. Both parties also have

4

claims for false advertising under California state law. California law differs from

5

federal law, so you should consider them separately.

6

On a claim for false advertising in violation of state law under the Business

7

and Professions Code § 17500, the party asserting the claim has the burden of

8

proving each of the following elements by a preponderance of the evidence:

9

(1)

the other party made or disseminated a statement,

10

(2)

in connection with the sale or disposition of goods or services,

11

(3)

which was untrue or misleading,

12

(4)

and which is known, or which by the exercise of reasonable care should

13

be known, to be untrue or misleading.

14

If you find that each of the elements on which the party asserting the claim

15

has the burden of proof has been established, your verdict should be for the party

16

asserting the claim. If, on the other hand, the party asserting the claim has failed to

17

prove any of these elements, your verdict should be for the other party.

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Authority: California Business and Professions Code § 17500; California

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Antitrust & Unfair Competition Law (Third) Volume 2: Unfair Competition,

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§14.03-14.05.

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UNDISPUTED INSTRUCTION NUMBER 35

2

DUTY OF JURY

3

Members of the Jury: Now that you have heard all of the evidence and the

4

arguments of the attorneys, it is my duty to instruct you as to the law of the case.

5

Each of you has received a copy of these instructions that you may take with you to

6

the jury room to consult during your deliberations.

7

You must not infer from these instructions or from anything I may say or do

8

as indicating that I have an opinion regarding the evidence or what your verdict

9

should be.

10

It is your duty to find the facts from all the evidence in the case. To those

11

facts you will apply the law as I give it to you. You must follow the law as I give it

12

to you whether you agree with it or not. And you must not be influenced by any

13

personal likes or dislikes, opinions, prejudices, or sympathy. That means that you

14

must decide the case solely on the evidence before you. You will recall that you

15

took an oath to do so.

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17

In following my instructions, you must follow all of them and not single out
some and ignore others; they are all important.

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Authority: 9th Cir. Civ. Jury Instr. § 1.1C

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UNDISPUTED INSTRUCTION NUMBER 36

2

DUTY TO DELIBERATE

3

When you begin your deliberations, you should elect one member of the jury

4

as your presiding juror. That person will preside over the deliberations and speak

5

for you here in court.

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You will then discuss the case with your fellow jurors to reach agreement if
you can do so. Your verdict must be unanimous.
Each of you must decide the case for yourself, but you should do so only after
you have considered all of the evidence, discussed it fully with the other jurors, and
listened to the views of your fellow jurors.
Do not hesitate to change your opinion if the discussion persuades you that

12

you should. Do not come to a decision simply because other jurors think it is right.

13

It is important that you attempt to reach a unanimous verdict but, of course, only if

14

each of you can do so after having made your own conscientious decision. Do not

15

change an honest belief about the weight and effect of the evidence simply to reach

16

a verdict.

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Authority: 9th Cir. Civ. Jury Instr. § 3.1

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UNDISPUTED INSTRUCTION NUMBER 37

2

COMMUNICATION WITH COURT

3

If it becomes necessary during your deliberations to communicate with me,

4

you may send a note through the bailiff, signed by your presiding juror or by one or

5

more members of the jury. No member of the jury should ever attempt to

6

communicate with me except by signed writing; I will communicate with any

7

member of the jury on anything concerning the case only in writing, or here in open

8

court. If you send out a question, I will consult with the parties before answering it,

9

which may take some time. You may continue your deliberations while waiting for

10

the answer to any question. Remember that you are not to tell anyone–including

11

me–how the jury stands, numerically or otherwise, until after you have reached a

12

unanimous verdict or have been discharged. Do not disclose any vote count in any

13

note to the court.

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Authority: 9th Cir. Civ. Jury Instr. § 3.2

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UNDISPUTED INSTRUCTION NUMBER 38

2

RETURN OF VERDICT

3

A verdict form has been prepared for you. After you have reached unanimous

4

agreement on a verdict, your presiding juror will fill in the answers on the form that

5

has been given to you, sign and date it, and return it to the court.

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7

Authority: 9th Cir. Civ. Jury Instr. § 3.3

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UNDISPUTED INSTRUCTION NUMBER 39

2

INTERSTATE COMMERCE

3

The parties agree that the statements at issue here were made in interstate

4

commerce. Accordingly, you do not need to make a determination as to this

5

element.

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Authority: 15 U.S.C. § 1125(a); Summit Tech. v. High-Line Medical
Instruments, Co., 933 F. Supp. 918, 934 (C.D. Cal. 1996).

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