Reed Constr. Data Inc. v. McGraw-Hill Cos.

Reed Constr. Data Inc. v. McGraw-Hill Cos.

Opinion

 [*44]  SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on October 21, 2014, is AFFIRMED.

Plaintiff Reed Construction Data, Inc. ("Reed") appeals from the award of summary judgment to defendant McGraw-Hill Companies, Inc. ("McGraw-Hill") on Reed's claims under the Lanham Act, 60 Stat. 427, Pub. L. No. 79-489,, codified at 15 U.S.C. §§ 1051 et seq., the Sherman Antitrust Act, 26 Stat. 209,, codified at 15 U.S.C. §§ 1-7, and state law in connection with a McGraw-Hill advertising campaign [*45]  making allegedly false or misleading comparisons between the quantity of construction project data offered by Reed and by McGraw Hill. ] "We review an award of summary judgment de novo, construing the evidence in the light most favorable to the nonmoving party and drawing all reasonable [**2]  inferences in his favor." McElwee v. County of Orange, 700 F.3d 635, 640 (2d Cir. 2012). We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm for largely the reasons stated in the district court's thorough and well-reasoned opinion.

1. Lanham Act

] Section 43(a) of the Lanham Act provides a cause of action against "[a]ny person who . . . uses in commerce any . . . false or misleading description . . . or misleading representation of fact, which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities." 15 U.S.C. § 1125(a)(1). ] Reed can recover under § 43(a) under either of two theories:

First, the plaintiff can demonstrate that the challenged advertisement is literally false, i.e., false on its face. When an advertisement is shown to be literally or facially false, consumer deception is presumed, and the court may grant relief without reference to the advertisement's actual impact on the buying public. This is because plaintiffs alleging a literal falsehood are claiming that a statement, on its face, conflicts with reality, a claim that is best supported [**3]  by comparing the statement itself with the reality it purports to describe.

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