Friday, November 5, 2010

Is Pleading Intent to Deceive upon "Information and Belief" Sufficient to State a Claim for False Marking?

Yes -- Defendant's motion to dismiss plaintiff's qui tam false marking action for failure to state a claim was denied. "[Defendant] challenges the adequacy of the complaint, in part, based on its recurrent use of 'upon information and belief.' Relator’s allegations do not fail on account of their use of these qualifiers. . . . [N]othing in either [Bell Atl. Corp. v. Twombly [550 U.S. 544, 555 (2007)] or [Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)] suggests that pleading based upon 'information and belief' is necessarily deficient. The Court therefore concludes that pleading in this manner is not categorically improper, especially when information lies uniquely within the control of the defendant."

Simonian v. Blistex, Inc., 1-10-cv-01201 (ILND November 3, 2010, Order) (St. Eve, J.)

No -- Defendants' motion to dismiss plaintiff's amended qui tam false marking claim for failure to state a claim was granted. "Plaintiff has lengthened its conclusory statements, but still fails to allege any facts or information that support its 'beliefs.' For example, Plaintiff alleges on 'information and belief' that Defendants 'engaged in a strategy of marking patents on their products for the purpose of deceiving the public' and 'purposefully allowed their products to bear the irrelevant patents.' These statements do not give any basis for Plaintiff’s belief that Defendants were employing a strategy or purposefully allowing irrelevant patents. . . . Plaintiff’s statement of facts alleges details which explain why it believes Defendants’ products are mismarked, but contains no information supporting the belief that Defendants were acting with an intent to deceive. Further factual detail is needed to survive a motion to dismiss under Rule 9(b)."

Shizzle Pop, LLC v. Aviva Sports, Inc. et al., 2-10-cv-02574 (CACD November 3, 2010, Order) (Klausner, J.)

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