United States Ninth Circuit

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PhotoMedex, Inc. v. Irwin, 07-56672

In an action involving Lanham Act claims for misleading advertising and California state law claims for false advertising and unfair competition, based on defendants' alleged misrepresentations regarding the release of a medical device, summary judgment for defendants is affirmed in part where, because the FDA permitted defendants to determine in the first instance whether their laser device was covered by clearance previously given to a similar device and to market their device without an affirmative statement of approval by the FDA, the Lanham Act claim by plaintiff could not proceed. However, the judgment is vacated in part where, though a forecast of future events may ordinarily be a statement of opinion upon which unfair competition claims could not be based, such a statement may be actionable if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.

Appellate Information

  • Decided 04/14/2010
  • Published 04/14/2010



  • United States Ninth Circuit


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