Defendant's motion to dismiss plaintiff's qui tam false marking action for failing to plead with particularity was granted where plaintiff alleged the websites of defendant's affiliates claimed defendant's product was patented. "Plaintiff alleges that, for advertising purposes, [defendant] provided affiliates with false information that [the accused product] was patented and did so with intent to mislead the public. In other words, [defendant], with ill intent, falsely advertised through third parties that [the accused product] was patented. . . . Although Plaintiff’s theory of liability is not legally defective, he has failed to plead sufficient facts to support it as required under Rule 9(b). Plaintiff does not plead how the alleged fraud operated or any facts regarding [defendant’s] relationship with its so-called affiliates. He does not allege that [defendant] deceived them or exercised control over them. . . . Further, Plaintiff fails to plead the identities of the three affiliate marketers that stated that 'the manufacturer' supplied them with the challenged text. Plaintiff does not even allege that [defendant] is 'the manufacturer' to which these marketers referred."
United States of America, ex. rel., et. al. v. Factor Nutrition Labs, LLC, et. al., 4-10-cv-02529 (CAND December 7, 2010, Order) (Wilken, J.)