Ninth Circuit throws out suit against fomer NFL star Theismann

By Robert Lawson | Jul 19, 2016

SAN FRANCISCO (Legal Newsline)—The Ninth Circuit Court of Appeals in San Francisco recently dismissed a false advertising suit against celebrity endorser and former NFL player Joe Theismann. 

SAN FRANCISCO (Legal Newsline) — The U.S. Court of Appeals for the Ninth Circuit Court recently dismissed a false advertising suit filed against a celebrity endorser, former NFL player Joe Theismann. 

Plaintiffs Floyd Luman and Joel Amkraut were seeking punitive and other damages in numerous claims against Theismann for the endorsement of a dietary supplement. They also sued the company that marketed and sold the supplement, NAC Marketing Company LLC, doing business as New Vitality.

The plaintiffs accused Theismann and the company of violating several laws, including California consumer protection statutes, during the company's sales of its super beta prostate product.

In throwing out the case against Theismann, the court said technically, the plaintiffs couldn't state a claim because the endorser is not the seller of the product nor did he hold any title to the product. 

Joe Theismann, a former Washington Redskins professional football player, is a celebrity endorser   Creative Commons Image via Wikipedia

It is rare that celebrities are held liable for products they endorse. Attorney James Beck of ReedSmith said these deals are typically set up with an endorser's explicit indemnification from liability. 

"Any spokesperson with any leverage would demand indemnification against such suits," Beck told Legal Newsline. 

FTC v. Garvey is one example of a Federal Trade Commission lawsuit against an endorser that was rejected. In that case, there was no evidence the endorser - former Major League Baseball player Steve Garvey - knew of any fraud or misrepresentations, which is one standard measure to examine the law for false advertisement claims. That case involved a dietary supplement as well. 

New Vitality has faced several class action lawsuits stemming from the promotion and distribution of its super beta prostate product. 

Attorneys seeking to file class action suits and those who have done so already say the product is dangerous. The court in this case, however, opined that the plaintiff's original claims were moot when their money was returned and could not produce evidence they would face injury in the future. 

Beck said federal courts had to rule in favor of state laws governing the issues in this case. 

"There is no state-law precedent for imposing a duty on a spokesman to an unknown universe of consumers, " he said. "In this kind of case, federal courts are obligated to apply state law."

Beck was not shocked by the outcome but was surprised by the determination of the litigant. 

"There is not any support for such liability," he said. "The most surprising thing was that the plaintiff preserved and appealed the issue."

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