Could Yogi Berra be Correct that “It Ain’t Over Til It’s Over”?; Supreme Court Decides Not to Review POM Wonderful v FTC Case

By Riëtte van Laack –

Last year (October 2015), POM Wonderful LLC (POM) petitioned the U.S. Supreme Court for review of the decision of the U.S. Court of Appeals for the District of Columbia (see our previous post here).  As we discussed, POM’s arguments in its Petition essentially repeated the arguments in its request for en banc review by the D.C. Circuit.  At issue were seventeen of the thirty six advertising claims the Court of Appeals included in its decision.  According to POM, the seventeen claims should have been reviewed de novo by the Court of Appeals. Instead, the Court of Appeals merely accepted FTC’s determination that the claims were misleading. According to POM, FTC’s determination was in error. In its Petition, POM acknowledged that the outcome in the case would not change because of the other 19 claims that POM did not contest; it would be liable for false advertising in any case.

After a number of extensions, the FTC filed its brief in opposition of review on March 28, 2016.  The FTC argued that the seventeen ads were part of the original complaint.  Importantly, FTC said that POM’s request for de novo review of the seventeen ads was made too late, i.e., in POM’s reply brief rather than in its opening briefs in its appeal. Thus, the Supreme Court’s denial is not surprising.

The decision leaves in place the January 2015 ruling by the U.S. Court of Appeals for the District of Columbia.  Nevertheless, this may not be the end of what some may consider the epic battle between the two parties. What remains is a determination of “the spoils of the war.”  In the FTC’s Complaint filed in 2010, the FTC reserved the right to file a court action seeking restitution and other remedies after it issued a cease and desist order and the order becomes final.  POM potentially faces a restitution action for millions of dollars.