About three months after surviving a motion to dismiss, a portion of Philadelphia lawyer Jeffrey Rosenbaum’s false advertising lawsuit against Florida-based personal injury firm Morgan & Morgan’s advertising campaign in Pennsylvania has once again avoided preliminary dismissal.
U.S. District Judge Mark Kearney of the Eastern District of Pennsylvania denied Morgan’s motion for partial summary judgment on Rosenbaum’s claim that his firm lost money allegedly because Morgan falsely portrayed itself as having a presence in Pennsylvania when it only has one licensed attorney in-state.
Kearney said Rosenbaum laid out claims regarding the 200 ads sufficient enough to withstand initial legal scrutiny.
“In essence, Morgan & Morgan and the individuals are asking us to examine each statement in a vacuum and strike Rosenbaum’s allegations about certain statements because those statements are not misleading in isolation,” Kearney said in his opinion. “We decline this exercise at the motion to dismiss stage because it is not clear from Rosenbaum’s allegations whether certain statements also appear in an advertisement with the allegedly misleading disclaimer.”
He continued, “The full factual record of summary judgment is the time to examine each advertisement in context and determine whether they are false or misleading instead of examining the statements in isolation based solely on allegations. At this stage, Rosenbaum sufficiently pleads a claim under the Lanham Act relating to Morgan & Morgan’s television advertisements.”
Gaetan J. Alfano of Pietragallo Gordon Alfano Bosick & Raspanti, who is representing Morgan & Morgan, declined to comment. Ryan Cohen of Rosenbaum & Associates did not respond to a request for comment.
Rosenbaum’s suit, filed in federal court in Philadelphia in September, alleges that Morgan & Morgan’s ubiquitous ads are deceptive because the firm doesn’t represent clients in Pennsylvania and draws away potential clients from Rosenbaum & Associates. He also sought an injunction requiring Morgan & Morgan to pull its ads off television for the duration of the case, though he later withdrew that filing.
Previously, Kearney denied Morgan & Morgan’s motion to dismiss the false advertising claims, allowing them to move forward against the Morgan firm, John Morgan, and attorney Scott Weinstein in relation to several statements made in commercials: “I’m your lawyer”; “We’re all here for you” and “Our family is here for your family”; “You don’t pay us unless we’re successful”; and that the firm is “not a referral service.”
The judge said Rosenbaum has made plausible claims that the statements could mislead prospective clients in Pennsylvania into thinking that the Orlando-based firm and its lawyers—only one of which is licensed to practice in Pennsylvania—will get individual attention from members of the Morgan family.
Kearney dismissed claims related to Morgan & Morgan’s billboard and internet advertising.