Armstrong Freed from Claim of False Advertising

By: Lindsey Chessum*

ArmstrongLance Armstrong was the golden boy of sports media. People, who previously denied biking to be a sport, cheered Armstrong on after he underwent cancer treatments, recovered, and still won the Tour de France. In honor of the biking athlete’s victories and as a source of motivation in their own athletic battles, teenagers and adults everywhere sported the yellow wristband saying, “Livestrong.”

Today, Armstrong is no longer in the evening sports report, and there are not many people wearing yellow wristbands. But there is one place where Armstrong’s name is still being used, the courtroom.

Accusations of doping were directed at Armstrong since 1999, but only recently in January 2013 did he confess to doping in an interview with Oprah Winfrey. Since then he has been dragged into a slew of lawsuits across the country where his character and his life have been questioned. So far, Armstrong owes $3 million to Acceptance Insurance Co. for bonuses he was paid for winning the Tour de France races in 1999, 2000, and 2001. Acceptance Insurance might also recover for prizes paid to Armstrong after his Tour de France races in 2002, 2003, and 2004. In that suit, however, there is an issue with a previous settlement in 2006 potentially barring the suit. Even the federal government is suing Armstrong, to recover the over $30 million spent by the U.S. Postal Service as his team sponsor.

Earlier in 2013, a group of readers of Armstrong’s autobiographies, “It’s Not About The Bike” and “Every Second Counts,” sued Armstrong and his publishers for fraud and false advertising. The readers sought class-action status in federal court in California and damages of more than $5 million. dopingThey complained the books violated the California Consumers Legal Remedies Act (“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”). The readers complained the books never mentioned Armstrong’s years of doping, making large portions of the books lies. The readers felt duped and cheated and argued in their complaint that the books should have been labeled fiction.

Armstrong’s attorney moved for early dismissal of the case under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute. Essentially, the statute enables a defendant to avoid costly and time-consuming litigation through early dismissal of meritless claims intended to suppress First Amendment speech. While Armstrong’s attorney argued the books were protected First Amendment speech, the readers argued the books were commercial speech and deserved fewer protections. The readers described the marketing campaign Armstrong employed to raise interest and sales in his books and argued ‘Lance Armstrong’ was a brand or product making everything he says commercial speech.

On September 10, Judge England granted the motion for dismissal. The judge firmly stated Armstrong’s books are protected speech, and his “lies about his use of drugs are simply not criminal conduct.” It was a private victory for Armstrong. He was “relieved to have been treated fairly in a court of law.”

President and ArmstrongOf course, this was a lawsuit against Armstrong’s publishers, as well. For the publishers, the ruling was not momentous. It adds to the chain of cases that refuse to hold publishers in a fraud action for false or inaccurate statements in a book. If the courts decided otherwise, the practical implications would be huge. Publisher would have to expend enormous amounts of time and money to ensure every statement in a book was accurate, not to mention costs for litigation. Further, courts would have a tough time making decisions when even critics recognize it is a blurry line between fiction and nonfiction.

Even after a personal victory, Armstrong is in it for the long haul.

Another class-action suit alleging false advertising and unfair competition in violation of CLRA, UCL, and FAL is still pending in the Central District of California. Armstrong was sued along with FRS Co., a nutritional products maker, for advertising FRS products as his “secret weapon” during the time when he admitted to doping. The problem for Armstrong in this lawsuit is that the alleged violations were made during television advertisements, less likely to be considered protected speech and less likely to be granted early dismissal.

Luckily for Armstrong, he is used to endurance races.

* Lindsey M. Chessum is a third year law student at Wake Forest University School of Law. She has a Bachelor’s in Economics & Business and a Bachelor’s in Philosophy from Westmont College. She spent nearly two years in the stock market industry prior to law school, and upon graduation in 2014, Ms. Chessum plans to return to California to practice business law.