Third District Court Rules False Marking Statute Is Not Unconstitutional

Defendants' motions to dismiss plaintiff's qui tam false marking action for violating the Take Care clause of the Constitution was denied. "In this Court’s view, the fact that section 292 is a criminal statute does not make a qui tam suit under section 292(b) 'a criminal action.' Indeed, if it was, the Rules of Civil Procedure would not even apply – including Rule 9(b), which the Federal Circuit specifically held in BP Lubricants USA [(Fed. Cir. Mar. 15, 2011)] applies in false marking cases. In this Court’s view, the better view of the false marking statute is that it is a criminal statute with a parallel civil enforcement mechanism."

Luka v. The Proctor and Gamble Company, et. al., 1-10-cv-02511 (ILND March 28, 2011, Order) (Kennelly, J.)