This Law 360 article discusses a recent decision by Judge Dan A. Polster of the U.S. District Court for the Northern District of Ohio, who ruled that the qui tam provision of the false marketing statue is unconstitutional. Judge Polster stated that the qui tam provision of 34 U.S.C. Section 292, known as the false marking statute, violated the take-care provision of Article II of the U.S. Constitution. While the ruling is limited due to jurisdiction, some believe that it will have an impact on existing cases. Robert Shaffer and John Williamson, partners at Finnegan and the co-heads of the firm's false marking practice, believe it will effect current cases where many defendants have raised constitutional challenges. “This particular opinion may give some teeth to opinions pending now, and while I'm not saying that all district courts will reach the same conclusion, [Judge Polster's] decision is an important one for companies defending false marking cases,” Williamson said. “This ruling certainly helps defendants because they can now point to arguments made in a published opinion to support their constitutionality defenses,” Shaffer added.
