Defendant's motion to dismiss plaintiff's qui tam false marking action for failing to plead with particularity was denied. "By using the word 'patent' in its advertisements connected with the sales of its cotton candy machines, when it had no such patent, [defendant] has acted as someone who says, "I am not married," when indeed, they are."
Defendant's motion to dismiss plaintiff's qui tam false marking action as unconstitutional was denied. "This Court agrees with the government's rationale that the [False Marking Statute] is subject to control mechanisms not listed in the statute. . . . [FRCP] 24(a)(2) gives the government a controlling mechanism through its right to intervene. . . . Further, the division of the fines imposed. . . provides another control mechanism. Without notifying the government of its suit, relators cannot seek their portion of the civil penalty."
United States of America, ex rel. VendEver LLC v. Intermatic Manufacturing Ltd., 3-11-cv-00202 (TXND June 20, 2011, Order) (Solis, J.)