Victory Global, LLC v. Fresh Bourbon, LLC -Eastern District of Kentucky at Lexington
Split Score
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Case Summary
Disposition
Affirmed
The Sixth Circuit affirmed summary judgment in favor of Fresh Bourbon, holding that Victory Global failed to show any literally false statements in Fresh Bourbon’s marketing and offered no evidence that allegedly misleading statements deceived or tended to deceive consumers. Because the court concluded the claim failed on the deception element, it declined to weigh in on an existing inter-circuit split over whether literally false statements are presumed material, and instead simply acknowledged the divergence among its sister circuits.
Circuit Split Identified
Legal Issue
Whether a plaintiff in a Lanham Act false-advertising suit is entitled to a presumption of materiality when the challenged statement is deemed “literally false,” or must affirmatively prove that the statement was material to consumers’ purchasing decisions.
Circuit Positions
Presume materiality when a statement is literally false; no separate proof required.
No presumption of materiality; plaintiff must prove materiality even if the statement is literally false.
Split acknowledged; question expressly avoided—no position taken.
Conflict Summary
The Fifth Circuit presumes that literally false statements are material, excusing plaintiffs from independent proof, whereas the Eighth, Second, Eleventh, and First Circuits hold that even literally false statements require evidence of materiality. The Sixth Circuit in this opinion acknowledges the split but expressly declines to decide the question, leaving the issue unresolved in this circuit.