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.)