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Tucows is hiring a Director of Product Management to lead teams passionate about the future of our fiber internet business, Ting Internet. A senior product leader with the inspiration and vision to raise the bar for our product organization.
Ting is part of Tucows (NASDAQ: TCX) and we believe very strongly in the power of the Internet to drive positive change.
This is the part where you state your name and express a similar belief in the importance of access to the open Internet and of better Internet infrastructure in getting communities connected.About us:
Tucows has been on the Internet since the days when it was unironically referred to as the Information Superhighway. We have a deep and storied online history. Everything we do is on and for the Internet.
In 2012, Ting shook up the mobile industry by offering fair pricing, delightful user interfaces and shockingly non-phone-company-like customer support. Fast forward to the present and Ting topping $43M in gross margin.
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That's where you come in.The role:
We're looking for a world-class product leader who'll work across teams to build products people care about. In this role, you will:
- Encourage and challenge a high-performance team to always improve the Ting product ecosystem.
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- Deliver high-quality products for internal and external users today while always looking to the future.
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- Always seeking new knowledge and innovative approaches.
- Experience in building and leading scaled and/or hyper-growth product teams that strike the delicate balance between user needs and strategic business impact
- Bring new perspective and outstanding communication skills.
- Equally at home with technical types as you are with business partners.
- Build effective frameworks to aid discussion and comprehension of complex topics.
- Active listener who has a knack for knowing who needs to be in the loop and you proactively share and offer context accordingly.
- Skilled at operating in a relatively flat, cross-functional organization, full of collaboration with many different disciplines.
- Have strategic knowledge of the US Telecom space and you're bullish on what fiber can accomplish in rural America.
- You care deeply about delivering on our brand promise and are excited to immerse yourself in our culture: https://www.tucows.com/about-us/
We believe diversity drives innovation. We are committed to inclusion across race, religion, colour, national origin, gender, sexual orientation, age, marital status, veteran status or disability status. We celebrate multiple approaches, and diverse points of view that drive us forward every day.
We will ensure that individuals with disabilities are provided reasonable accommodation to participate in the job application or interview process, to perform essential job functions, and to receive other benefits and privileges of employment. Please contact us to request accommodation.
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holding that the phrase "likely to deceive" "indicates that the ad [or conduct] is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled"Summary of this case from Stewart v. Riviana Foods Inc.
Filed January 17, 2003 Certified for Partial Publication
Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts I, III and IV.
Appeal from San Francisco Superior Court, No. 974757, Hon. Isabella H. Grant, Judge.
Milberg Weiss Bershad Hynes Lerach LLP, Dennis Stewart; William S. Dato, Timothy G. Blood, Sheri Pym, Kevin K. Green, Steyer Lowenthal Boodrookas Walker LLP; Allan Steyer, Carols A. Alvarez, D. Scott Macrae for Appellant.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General; Herschel T. Elkins, Senior Assistant Attorney General; Ronald A. Reiter, Supervising Deputy Attorney General; Seth E. Mermin, Deputy Attorney General for Amicus Curiae.
Haight, Brown Bonesteel, LLP, Jules S. Zeman; Drinker, Biddle Reath, David Fleming, William Hanssen for Respondent.
This appeal arises out of appellant's challenge to allegedly deceptive television commercials supporting the launch of Aleve, a non-prescription pain relief product developed, manufactured and marketed by respondents. Plaintiff-appellant Zion Lavie appeals from the judgment against him and in favor of defendants-respondents Procter Gamble Co, (Procter Gamble), Syntex Health Products, Inc. (Syntex), Procter-Syntex Health Products Company (Procter-Syntex), and others, following a court trial upon appellant's action challenging television advertising supporting the launch of Procter-Syntex non-prescription pain reliever Aleve in the mid-1990s. Among other claims, appellant alleged the television advertising promoting Aleve violated the California unfair competition law (Bus. Prof. Code, § 17200) (UCL) and this state's false advertising law (Bus. Prof. Code, § 17500) because the explicit claim of the ads that "Aleve is gentler to the stomach lining than aspirin" was false and/or likely to mislead members of the public and because the advertisements contained an implicit and false message that Aleve was gentle to the stomach and would not cause stomach upset. At the end of a 13-day bench trial, the trial court found in favor of respondents on all counts, including finding that respondents did not engage in unlawful, unfair or fraudulent business practices or unfair, deceptive or misleading advertising within the meaning of sections 17200 or 17500. The court found the substantial weight of the evidence supported the conclusion that the phrase "Aleve is gentler to your stomach lining than aspirin" was a true statement and that the challenged ads were not likely to deceive reasonable consumers. The court also found that the ads did not target particularly gullible consumers and that the evidence did not show that a substantial number of consumers were deceived into thinking Aleve would not cause gastrointestinal side effects.
Other defendants included respondents Procter Gamble Health Products, Inc., Richardson-Vicks, Inc., Procter Gamble Distributing Company, Hoffmann-La Roche, Inc., and Roche Laboratories, Inc.
All statutory references are to the Business and Professions Code, unless otherwise indicated.
Appellant contends the judgment must be reversed as the court erred: (1) in employing the wrong methodology in determining what messages were conveyed by the commercial, relying upon its own intuition rather than viewing the ads from the vantage point of a reasonable consumer; (2) by disregarding evidence showing the messages were misleading and unsupported by the medical data; and (3) by disregarding evidence that these messages were impressed upon a significant number of consumers and were therefore likely to deceive the public. Appellant also contends that the evidence established defendants' conscious decision to communicate implied messages they knew would mislead many California consumers, and that such was an unfair business practice under section 17200. Finally, he argues that if the matter is reversed, the trial court on remand has discretion to enter restitution relief.
The Attorney General has filed an amicus brief in this appeal, contending the likelihood of deception under the UCL must be measured by the standard of the "least sophisticated consumer" and that the trial court erred in using a "reasonable consumer" standard to determine whether the advertisements were likely to deceive the public.
We shall affirm the judgment.
An extended description of the facts and evidence at trial is set forth hereafter in the substantial evidence discussion.
In June 1994, Aleve was brought to the market as a new addition to over-the-counter pain relief products. Appellant, aged 47, is a computer programmer and manager. He testified that he took Aleve in mid-December 1994 for relief of cold symptoms. Twelve years before, he had been diagnosed with an ulcer and his doctor had told him to avoid aspirin. The ulcer had been inactive. Appellant decided to try Aleve after seeing some newspaper and television ads. He took Aleve over the weekend and on the following Monday was hospitalized overnight with serious gastrointestinal bleeding. His doctor told him not to use Aleve and appellant presented evidence the bleeding was caused by his ingestion of Aleve.
Appellant wrote to Procter Gamble about his problem, stating he believed the company should be working on revising its warning label. Procter Gamble responded by offering him his purchase price plus interest and requesting the name of his doctor, so the matter could be looked into. Plaintiff did not accept return of the purchase price. He sued respondents on various claims centering on the allegation that the television advertising for Aleve was false, misleading and/or likely to mislead. He asserted claims both individually and on behalf of the general public for violation of the UCL (§ 17200 et seq.) and the false advertising act (§ 17500). He also asserted claims for common law fraud, negligent misrepresentation, and violation of the Consumers Legal Remedies Act (Civ. Code, § 1750 et seq.). Although he eventually waived any claims for personal injury, appellant sought restitution for himself and the general public with respect to his UCL and false advertising claims in the amount of all sales of Aleve to customers in California (a sum ranging from approximately $104 million to $140 million) and injunctive relief in the form of corrective advertising. Appellant also sought actual and punitive damages under his common law and Consumers Legal Remedies Act claims. Finally, he sought to have any monetary relief awarded under the UCL or the Consumers Legal Remedies Act enhanced up to treble the amount awarded pursuant to Civil Code section 3345
At the end of a 13-day bench trial, the Honorable Isabella H. Grant found against appellant and in favor of respondents on all claims, including finding that defendants did not engage in unlawful, unfair or fraudulent business practices or unfair, deceptive or misleading advertising within the meaning of sections 17200 or 17500. Judgment was entered on October 11, 2000, and this timely appeal followed. Appellant challenges the judgment against him on his UCL and false advertising claims only.
I. California laws prohibiting unfair competition (§ 17200 et seq.) and false advertising (§ 17500).
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A. The Unfair Competition Law.
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B. The False Advertising Law.
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C. Common Features of the UCL and the False Advertising Law.
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II. "Reasonable consumer" versus "least sophisticated consumer" standard. A. Amicus brief raising issue of the standard.
In an amicus brief filed in this appeal, the Attorney General argues that the trial court committed reversible error in failing to use a "least sophisticated consumer" standard rather than a "reasonable consumer" standard to determine whether the advertisements were likely to mislead or deceive the public. It is analytically necessary to address this issue first, for if we agreed with the Attorney General, the additional issues raised on this appeal likely would be rendered moot.
Both parties and the trial court agreed below that the "reasonable consumer" standard applied and appellant did not raise this claim of error on appeal. Ordinarily, "[a]micus curiae must take the case as they find it." California Assn. for Safety Education v. Brown (1994) 30 Cal.App.4th 1264, 1274-1275; accord Eisenberg et al., Cal. Prac. Guide: Civil Appeals Writs (The Rutter Group 2001) ¶ 9:210.1.) "`"[A]n appellate court will consider only those questions properly raised by the appealing parties. micus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered [citations]."'" ( Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814; see Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 711, fn. 1 (conc. opn. of Bird, C.J.); E.L. White, Inc. v. City of Huntington Beach (1978) Cal.3d 497, 510-511.)
However, the rule is not absolute. An appellate court has discretion to consider new issues raised by an amicus. (See Fisher v. City of Berkeley, supra, 37 Cal.3d 644, 654-655 [Supreme Court considered argument for invalidating rent control ordinance raised by amicus]; E.L. White, Inc. v. City of Huntington Beach, supra, 21 Cal.3d 497, 510-511; Eisenberg et al., Cal. Prac. Guide: Civil Appeals Writs, supra.) Although we do not do depart lightly from the general rule, we are persuaded that this case is one in which it is not only permissible, but also appropriate to do so. The Supreme Court has justified consideration of a new issue on appeal for the first time "when the issue posed is purely a question of law based on undisputed facts, and involves important questions of public policy. [Citations.]" ( Fisher v. City of Berkeley, supra, at pp. 654-655, fn. 3.)
The standard to be used in evaluating whether an advertisement is deceptive under the UCL is purely a question of law and certainly has important public policy implications for California consumers and businesses. Moreover, the Attorney General has a particular interest in the interpretation of sections 17200 and 17500, as these sections "are the basic tools of the Attorney General and the district attorneys in combating consumer fraud." ( People v. Superior Court (Olson) (1979) 96 Cal.App.3d 181, 189, fn. 6; see also, Manufacturers Life Ins. Co. v. Superior Court (1995) 10 Cal.4th 257, 275, fn. 8.) The Attorney General and district attorneys have an independent role in the enforcement of this state's false advertising laws. They are authorized to prosecute violations of the UCL criminally (see § 17500) and may also seek redress through the bringing of civil law enforcement cases seeking equitable relief and civil penalties beyond those available to private parties (see §§ 17203, 17206, 17535, 17536). The possibility that a published decision could contain a misstatement of law as to a fundamental provision of these statutes is a cause of particular concern to the Attorney General. The Legislature has recognized the importance of amicus participation by the Attorney General in these appeals by requiring that the Attorney General and the district attorney of the county in which the proceeding occurred receive notice and copies of the briefs in any appeal in which sections 17200 and 17500 are at issue. (§§ 17209, 17536.5; California Rules of Court, rule 15(e)(2).)
Finally, the question of the standard to be applied in determining whether the advertisements here violated the UCL is inherent in this case. If, as the Attorney General argues, the parties and the trial court applied an erroneous standard, a rule of decision relying upon that incorrect standard could have profound precedential impact on the operation and enforcement of the UCL. For all of these reasons, we exercise our discretion to consider the question raised by the Attorney General.
The parties have had an opportunity to address the issue raised by the Attorney General and have done so. Respondents have filed an answer brief to the Attorney General's amicus brief and appellant has addressed the Attorney General's argument in his reply brief.
B. "Reasonable consumer" or "least sophisticated consumer."The Attorney General contends that the trial court must apply a "least sophisticated consumer" standard in determining whether an advertisement was likely to mislead the public. In a lengthy discussion of the origins of the UCL, he argues that California's deceptive advertising law has always prohibited advertising that has the capacity or tendency to mislead members of the public, including the unwary, unsophisticated, and the gullible. Asserting that an advertisement violates the law if it is false or if it has the capacity to mislead unwary, unsophisticated or the most gullible consumers, the Attorney General maintains, the "trial court's failure to apply the `least sophisticated consumer' standard as the measure of deception and the court's imposition of responsibility on consumers to investigate the merits of advertising claims were error."
We disagree. California and federal courts applying the UCL have never applied a "least sophisticated consumer standard," absent evidence that the ad targeted particularly vulnerable customers. Rather, they have consistently applied a standard closer to an ordinary or "reasonable consumer" standard to evaluate unfair advertising claims. Nor do we view the court's application of the "reasonable consumer" standard as requiring consumers to investigate the merits of advertising claims.
As a necessary corollary to his argument, the Attorney General urges that we reject Freeman v. Time, Inc. (9th Cir. 1995) 68 F.3d 285 ( Freeman) and Haskell v. Time, Inc. (E.D.Cal. 1994) 857 F. Supp. 1392 ( Haskell), as well as other federal decisions which have concluded that California employs the reasonable person or reasonable consumer standard in evaluating deceptive advertising. In Freeman, the Ninth Circuit agreed with the district court in Haskell that the "reasonable consumer" standard was the appropriate test for a violation of the UCL. Recognizing that to state a claim under the UCL "one need only show that `members of the public are likely to be deceived'" ( Bank of the West v. Superior Court, supra, 2 Cal.4th. at 1267, quoting Chern v. Bank of America, supra, 15 Cal.3d at 876), Freeman rejected the contention that to so demonstrate, the plaintiff "need show only that some members of the public, such as the elderly, minors or the mentally disadvantaged are likely to be deceived." ( Id. at p. 289.) Rather, the court adopted the "reasonable person" standard championed in Haskell and variants thereof applied in other cases. ( Id., also citing State Bd. of Funeral Directors v. Mortuary in Westminster Memorial Park (1969) 271 Cal.App.2d 638, 642 ["what a person of ordinary intelligence would imply" from ads in a § 17500 false advertising case]; Audio Fidelity, Inc. v. High Fidelity Recordings, Inc. (9th Cir. 1960) 283 F.2d 551, 557 [applying "the eye of the ordinary purchaser" standard to interpretation of California's unfair competition and misleading advertising law with respect to a similarly designed package claim].) Freeman reasoned that the "ordinary person" standard was consistent with the standard articulated in Bank of the West v. Superior Court, supra, — whether members of the public are "likely" to be deceived. ( Freeman, supra, at p. 289.)
Both Freeman and Haskell pointed out that the "reasonable person" standard was the common standard in the law in a number of contexts involving claims of deception and that it is the standard the Federal Trade Commission (FTC) uses in interpreting section 5 of the Federal Trade Commission Act ( 15 U.S.C. § 45(a)(1)), which contains similar provisions.
As Haskell observed, "[T]he reasonable person standard is well ensconced in the law in a variety of legal contexts in which a claim of deception is brought. It is the standard for false advertising and unfair competition under the Lanham Act [, citations]; for securities fraud [citation], for deceit and misrepresentation [citations] and for common law unfair competition [citation]. This list no doubt could be much expanded. Section 17500 of the Business and Professions Code, on which plaintiff proceeds, in no way expressly departs from the `reasonable person' standard so well rooted in the law. . . . Indeed, by explicitly imposing a `reasonable care' standard on advertisers, § 17500 impliedly adopts such a standard for consumers as well: unless particularly gullible consumers are targeted, a reasonable person may expect others to behave reasonably well. [Citation.]" ( Id. at pp. 1398-1399; accord Freeman, supra, at p. 289.)
Haskell also relied upon the FTC's interpretation of the Federal Trade Commission Act because of the relationship between the UCL and the federal act. "[T]he Unfair Business Practices Act is one `of the so-called "little FTC Acts" of the 1930's, enacted by many states in the wake of amendments to the Federal Trade Commission Act enlarging the commission's regulatory jurisdiction to include unfair business practices that harmed, not merely the interests of business competitors, but of the general public as well.' Rubin v. Green [(1993)] 4 Cal.4th 1187. . . . See Bank of the West v. Superior Court, [ supra], 2 Cal.4th 1254. . . . Because of this relationship between the [UCL] and the Federal Trade Commission Act, judicial interpretations of the federal act have persuasive force. [Citations.] Since 1982 the FTC has interpreted `deception' in Section 5 of the Federal Trade Commission Act to require a showing of `potential deception of "consumers acting reasonably in the circumstances," not just any consumers.' Southwest Sunsites, Inc. v. F.T.C., 785 F.2d 1431, 1436 (9th Cir. 1986) relying on In the Matter of Cliffdale Associates, Inc., 3 CCH Trade Reg.Rep. ¶ 22,137, 103 F.T.C. 110 (1984)." ( Haskell, supra, at p. 1399.)
In Cliffdale Associates, Inc., the majority of FTC commissioners asserted that the analytical approach they were adopting was not new in requiring that the challenged act or practice be "likely to mislead" or that the "act or practice be considered from the perspective of a `consumer acting reasonably in the circumstances'. . . ." (103 F.T.C. 110, *104; 1984 FTC Lexis 71.) "Virtually all representations, even those that are true, can be misunderstood by some consumers. The Commission has long recognized that the law should not be applied in such a way [a]s to find that honest representations are deceptive simply because they are misunderstood by a few. Thus, the Commission has noted that an advertisement would not be considered deceptive merely because it could be `unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons to whom the representation is addressed.'" ( Id. at pp. *105-106, fns. omitted.) The majority also noted that where a representation or practice is directed at a distinctive target group, the commission will determine the effect of the representation upon a reasonable member of that group. ( Id. at p. *106, fn. 8.)
The dissenting commissioner argued that the majority had "raised the evidentiary threshold for deception cases" by substituting the "likely to mislead" for "tendency or capacity to mislead" and by adopting the "reasonable consumer" standard. ( Id. at pp. 126-127 (Conc. and dis. opn. of Commissioner Pertschuk.)
In Southwest Sunsites, Inc. v. F.T.C., supra, 785 F.2d 1431, the Ninth Circuit recognized that the FTC had applied a "new" standard. ( Id. at p. 1435.)
We agree with the Haskell court that a reasonable consumer may be unwary or trusting. Where advertising is aimed at a particularly susceptible audience, such as the preschool children targeted by the advertisements in Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197, its truthfulness must be measured by the impact it will likely have on members of that group, not others to whom it was not primarily directed. (See id. at p. 214; In the Matter of Kirchner (1963) 63 F.T.C. 1282 [1983 FTC Lexis 71].) We also recognize that an advertisement may be designed to appeal to specific groups of consumers, although it is ostensibly directed to the public at large. Where the plaintiff contends that a more vulnerable subgroup is the true target of such an advertisement, a question of fact is presented, which the trial court must resolve.
However, unless the advertisement targets a particular disadvantaged or vulnerable group, it is judged by the effect it would have on a reasonable consumer. ( Haskell, supra, at p. 1399.) As noted by the FTC many years ago: "Perhaps a few misguided souls believe, for example, that all `Danish pastry' is made in Denmark. Is it, therefore, an actionable deception to advertise `Danish pastry' when it is made in this country? Of course not. A representation does not become `false and deceptive' merely because it will be unreasonably misunderstood by an insignificant and unrepresentative segment of the class of persons to whom the representation is addressed." ( In the Matter of Kirchner, supra, 63 F.T.C. 1282.)
Federal courts have followed Freeman and Haskell in adopting the "reasonable consumer" standard for California UCL claims: (See Southwest Sunsites, Inc., supra, 785 F.2d 1431; Churchill Village, L.L.C. v. General Elec. Co. (N.D.Cal. 2000) 169 F. Supp.2d 1119, 1131 ["A reasonable consumer standard applies to a false advertising claim under the UCL."]; Cairns v. Franklin Mint Co. (C.D.Cal. 1998) 24 F. Supp.2d 1013, 1037 ["To state a claim under [§§ 17200 and 17500 et seq.], one need only show that `members of the public are likely to be deceived.' [Citation.] A claim based on false or misleading advertising and unfair business practices `must be evaluated from the vantage of a reasonable consumer.' [Citation.]"].)
The Attorney General contends the FTC's reinterpretation of the Federal Trade Commission Act should not affect what the Attorney General characterizes as the traditional interpretation of the UCL by California courts. We disagree. FTC interpretation of the federal act has always been viewed as "more than ordinarily persuasive" (e.g., Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th at p. 186; Bank of the West v. Superior Court, supra, 2 Cal.4th at pp. 1263-1264) in its construction of the breadth of the protection afforded consumers under the UCL and we see no good reason to depart from that view here. More importantly, we believe that California case law has never embraced a "least sophisticated consumer test" to determine whether a UCL violation has occurred.
The California Supreme Court recognized the "reasonable consumer" standard in Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26. There, prospective sellers of real property sued a title insurer who refused to issue title insurance policies on property acquired by plaintiffs at a tax sale, despite the company's representation that title insurance would be issued on any property with good title. The Supreme Court held, among other things, that the plaintiffs had stated a cause of action for unfair competition under the UCL. "If plaintiffs are able to establish that a tax deed is `good' title within the understanding of a reasonable consumer, the advertisement may be conduct prohibited as unfair competition under the section 17200 definition as `deceptive, untrue or misleading advertising.'" ( Id. at p. 55, italics added.)
Other California cases, while not specifically referring to the reasonableness of the consumer, acknowledge that the standard to be applied in assessing whether the conduct or advertisement violates the UCL is whether it is "likely to deceive" the consumer. ( Barquis v. Merchants Collection Assn., supra, 7 Cal.3d 94, 111; Schnall v. Hertz Corp. (2000) 78 Cal.App.4th 1144, 1167-1169; AICCO Inc. v. Ins. Co. of North America (2001) 90 Cal.App.4th 579, 588; State Farm Fire Casualty Co. v. Superior Court, supra, 45 Cal.App.4th 1093, 1105, disapproved on other grounds in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th at pp. 184-185; Chern v. Bank of America, supra, 15 Cal.3d 866, 876; Day v. ATT Corp., supra, 63 Cal.App.4th 325, 332-334.) "Likely to deceive" implies more than a mere possibility that the advertisement might conceivably be misunderstood by some few consumers viewing it in an unreasonable manner. Rather, the phrase indicates that the ad is such that it is probable that a significant portion of the general consuming public or of targeted consumers, acting reasonably in the circumstances, could be misled.
As Haskell noted, "The statement in some of the case law to the effect that § 17500 protects `unwary consumers' is only descriptive of the effect of § 17500 and does not set the standard for liability. The reasonable consumer may well be unwary. The use of this language does not suggest that the Act protects the unwary, unreasonable consumer. Nor do statements that the Act protects the `public as a whole' suggest a different standard from the average or reasonable member of the public. See Sunset House Distrib. Corp. v. Coffee Dan's, Inc., [(1966)] 240 Cal.App.2d 748, . . . (`the public as a whole, acting as reasonable persons')." ( Id. at p. 1399, fn. 10.)
None of the cases cited by the Attorney General arising under the UCL or its analog, the Federal Trade Commission Act, holds that the unreasonable expectations or perceptions of the least sophisticated consumer or most gullible consumer would be protected. Rather, most of the cases cited by the Attorney General stand for the proposition that whether an advertisement or business practice violates the UCL is not measured by the perception of the most sophisticated, wary, or expert consumer, but by the likely effect on the normally credulous consumer. The Attorney General's error is his equating of the rejection of a standard requiring heightened consumer vigilance with the adoption of a "least sophisticated consumer" standard. The two clearly are not the same.
Donaldson v. Read Magazine (1948) 333 U.S. 178, 189, which did not arise under the Federal Trade Commission Act, but which is extensively quoted and relied upon by the Attorney General, involved a challenge to an order by the United States Postmaster finding plaintiffs had used the mail to further a fraudulent scheme and directing that mail be returned to the senders marked "Fraudulent," and that postal money order sums be returned. The Supreme Court articulated a standard more like the "reasonable consumer" standard than the "least sophisticated consumer" standard posited by the Attorney General, as the court explained that an advertisement may be literally true, but nonetheless misleading to the ordinary reader: "Advertisements as a whole may be completely misleading although every sentence separately considered is literally true. This may be because things are omitted that should be said, or because advertisements are composed or purposefully printed in such way as to mislead. [Citations.] That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest's terms is not sufficient to bar findings of fraud by a factfinding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. [Citations.] People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. `Laws are made to protect the trusting as well as the suspicious.'" ( Id. at pp. 188-189, italics added; see also, Federal Trade Commission v. Standard Education Soc. (1937) 302 U.S. 112, 116 ["The fact that a false statement may be obviously false to those who are trained and experienced does not change its character, nor take away its power to deceive others less experienced. There is no duty resting upon a citizen to suspect the honesty of those with whom he transacts business. Laws are made to protect the trusting as well as the suspicious. . . . [T]he rule of caveat emptor should not be relied upon to reward fraud and deception."].)
In Federal Trade Commission v. Standard Education Soc., supra, the court described the scheme and its impact on consumers as follows: "It was clearly the practice of respondents through their agents, in accordance with a well matured plan, to mislead customers into the belief that they were given an encyclopedia, and that they paid only for the loose leaf supplement. That representations were made justifying this belief; that the plan was outlined in letters going directly from the companies; that men and women were deceived by them — there can be little doubt. Certainly the Commission was justified from the evidence in finding that customers were misled. Testimony in the record from citizens of ten states — teachers, doctors, college professors, club women, business men — proves beyond doubt that the practice was not only the commonly accepted sales method for respondents' encyclopedias, but that it successfully deceived and deluded its victims." ( Federal Trade Commission v. Standard Education Soc., supra, 302 U.S. 112, 116-117, italics added.)
We agree that a "reasonable consumer" need not be "exceptionally acute and sophisticated." ( Id. at p. 189.) Nor need a reasonable consumer necessarily be wary or suspicious of advertising claims.
Nor is it the case, as suggested by the Attorney General, that California appellate cases predating Cliffdale Associates, Inc., particularly People v. Wahl (1940) 39 Cal.App.2d Supp. 771 and Dept. of Agriculture v. Tide Oil Co. (1969) 269 Cal.App.2d 145, recognized the "least sophisticated consumer" standard. Rather, California courts consistently have looked to the ordinary consumer within the target population.
As stated in People v. Wahl, supra, 39 Cal.App.2d Supp. 771, 774: "The advertisement, although literally true, was nevertheless deceptive and misleading in its implications and this is sufficient to bring it under the ban of the statute. The fact that a Firestone dealer, or other person who knew the whole truth, would not be led astray by it does not make it lawful. None of the advertising described in the statute, even though utterly false, could harm one who knew the truth, but such laws are passed to protect the general public who read advertisements and are likely to know nothing of the facts, not the dealers who publish them or other experts on their subject-matter." ( Id. at pp. 773-774.)
The statute referenced was former Penal Code, section 654a, prohibiting advertising containing any statement which is "false or untrue, in any respect, or which is deceptive or misleading, and which is known or by the exercise of reasonable care should be known, to be false or untrue, deceptive or misleading."
In Dept. of Agriculture v. Tide Oil Co., supra, 269 Cal.App.2d 145, the appellate court acknowledged that advertising signs which stated, "`We Give 2[cent] a Gal. Cash Disc. Coupon,' or variations of similar phraseology" came within the scope of [former] section 20880, subdivisions (b) and (c) prohibiting certain advertising practices by service stations, as the signs could be read to refer to a designated numerical discount per gallon in cash. ( Id. at pp. 154-155.) "While a sophisticated buyer may not attribute such meaning to the advertisement, it is within the regulatory ambit of the Legislature to protect the more gullible public." ( Id. at p. 155, fn. omitted.) The Attorney General erroneously construes this sentence to mean that the Legislature intended to protect members of the public "more gullible" than ordinary members of the public. We think the sentence merely embodies the idea that the general public is "more gullible" than the "sophisticated buyer." This interpretation is confirmed by an accompanying footnote, in which the court quoted from the holding in Donaldson v. Read Magazine, supra, 33 U.S. 178, that "`Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. [Citations.]'" ( Dept. of Agriculture v. Tide Oil Co., supra, at pp. 155, fn. 7, italics added.)
Two other more recent cases, Chern v. Bank of America, supra, 15 Cal.3d 866 and South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal.App.4th 861, also relate to this issue.
In Chern v. Bank of America, supra, 15 Cal.3d 866, the court held that the practice of quoting a "per annum" rate of interest computed on the basis of a 360-day year was likely to mislead a bank's potential customers, and that such practice could be enjoined as false and misleading advertising under the false advertising law and the UCL. (§ 17500, 17535; [former] Civ. Code § 3369, subd. 2 [now contained in § 17200 et seq.].) ( Id., at pp. 876-877.) "In the absence of evidence to the contrary," the court reasoned, "we must assume that the public is likely to understand that a `per annum' rate is an annual rate based on a 365-day calendar year. The fact that it may be `customary' business practice within the banking community to quote interest rates on the basis of a 360-day year does not necessarily establish that the practice is not misleading to the general public with whom defendant deals." ( Ibid., italics added.)
In South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th 861, a case involving sophisticated businesses in an ongoing relationship, rather than the consuming public as a whole, the plaintiff auto dealership contended that General Motors Acceptance Corporation (GMAC)'s business practice of using a similar method to calculate interest on loans to California dealerships violated sections 17200 and 17500 as a matter of law. The appellate court affirmed the trial court's conclusion that the plaintiff had failed to prove GMAC's use of the 365/360 method to calculate interest on wholesale floor plan loans violated section 17200 because the dealership knew, understood, and agreed to that method of interest calculation. Analyzing the issue, the court applied the "reasonable consumer" standard: "The trial court correctly noted that to recover under section 17200, South Bay had the burden to establish GMAC's conduct was unlawful, unfair, fraudulent or in violation of section 17500. ( State Farm Fire Casualty Co. v. Superior Court, supra, 45 Cal.App.4th at p. 1102. . . .) The trial court also correctly noted that to recover under the third or fourth prong of section 17200, South Bay had the burden to establish GMAC engaged in a business practice `likely to deceive' the reasonable consumer to whom the practice was directed. ( Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267 . . .; Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at p. 211 . . .; Chern v. Bank of America, supra, 15 Cal.3d at p. 876. . . .)" ( Id. at p. 878, italics added.) South Bay was a case involving loans made to "a financially sophisticated automotive dealership with knowledge of the lender's use of the 365/360 method in the parties' ongoing relationship." ( Id. at p. 884.) Because the practice was directed to automobile dealerships and not to the general public, the court affirmed the trial court's use of a "reasonable dealership" standard, distinguishing Chern as a case directed toward the consuming public. ( Ibid.)
Read together, Chern v. Bank of America, supra, 15 Cal.3d 866 and South Bay Chevrolet v. General Motors Acceptance Corp., supra, 72 Cal.App.4th 861, support our conclusion that the standard applied in UCL and false advertising cases is that of the ordinary consumer acting reasonably under the circumstances. Where the advertising or practice is targeted to a particular group or type of consumers, either more sophisticated or less sophisticated than the ordinary consumer, the question whether it is misleading to the public will be viewed from the vantage point of members of the targeted group, not others to whom it is not primarily directed. (See Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d 197.)
In Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., supra, 20 Cal.4th 163, the California Supreme Court turned to section 5 of the Federal Trade Commission Act for guidance in formulating a more precise test for determining what is "unfair" under the "unfair methods of competition" prohibition of the UCL governing injuries to competitors. The court did not expressly adopt the federal test for injury to consumers. ( Id. at p. 185.) However, the willingness of the court to follow the federal lead in defining "unfairness" under the UCL for competitors indicates the court would also follow the federal lead in determining the standard for unfairness relating to consumers, absent clear language in the statute or in case law refusing to do so. For example, California law clearly rejects incorporation of a reliance or damages requirement into the UCL. (E.g., Day v. ATT Corp., supra, 63 Cal.App.4th 325, 334; State Farm Fire Casualty Co. v. Superior Court, supra, 45 Cal.App.4th 1093, 1105; AICCO, Inc. v. Insurance Co. of North America, supra, 90 Cal.App.4th 579, 588; Chern v. Bank of America, supra, 15 Cal.3d at pp. 875-876; Bank of the West v. Superior Court, supra, 2 Cal.4th at p. 1267; Prata v. Superior Court, supra, 91 Cal.App.4th 1128, 1137.) But, as we have explained, California law has consistently measured whether an advertisement or practice is "likely to mislead" the consuming public by the ordinary consumer a standard which implies not sophistication or wariness, but reasonableness in the circumstances.
That the parties, who were represented by very capable counsel, accepted the reasonableness standard applied by the trial court reflects how well-established the reasonableness standard is in California law.
Nor are we persuaded by the Attorney General's argument that federal courts have continued to apply the "least sophisticated consumer" standard in non-FTC cases, such as those arising under the federal Fair Debt Collection Practices Act ( 15 U.S.C. § 1692 et seq. (1982)), prohibiting debt collectors from using "any false, deceptive, or misleading representation or means" to collect a debt. ( 15 U.S.C. § 1692e.) Cases arising under the federal debt collection statutes are inapposite. Even the Ninth Circuit, which recognized the "reasonable" consumer standard for cases arising under the UCL in Freeman, agreed that a "least sophisticated debtor standard" applied under the plain language of the Fair Debt Collection Practices Act (See Swanson v. Southern Oregon Credit Service, Inc. (9th Cir. 1988) 869 F.2d 1222, 1227.) To the extent federal law provides the template for our analysis, we look to the Federal Trade Commission Act, not to the Fair Debt Collection Practices Act.
Moreover, even courts under the Fair Debt Collection Practices Act have applied a somewhat modified test, employing the term "`unsophisticated,' instead of the phrase, `least sophisticated,' to describe the hypothetical consumer whose reasonable perceptions will be used to determine if collection messages are deceptive or misleading." ( Gammon Ltd. v. GC Services Limited Partnership (7th Cir. 1994) 27 F.3d 1254, 1257.) As stated by the Seventh Circuit: "[W]e believe that a modification of the least sophisticated consumer standard as articulated in cases such as Clomon [ v. Jackson (2nd Cir. 1993) 988 F.2d 1314,] would relieve the incongruity between what the standard would entail if read literally, and the way courts have interpreted the standard. [¶] It strikes us virtually impossible to analyze a debt collection letter based on the reasonable interpretations of the least sophisticated consumer. Literally, the least sophisticated consumer is not merely `below average,' he is the very last rung on the sophistication ladder. Stated another way, he is the single most unsophisticated consumer who exists. Even assuming that he would be willing to do so, such a consumer would likely not be able to read a collection notice with care (or at all), let alone interpret it in a reasonable fashion. Courts which use the `least sophisticated consumer' test, however, routinely blend in the element of reasonableness. [Citation.]" ( Gammon, Ltd. v. GC Services Limited Partnership, supra, at p. 1257, fn. omitted.)
The trial court did not err in assessing UCL and unfair advertising claims using a reasonable consumer standard.
III. The Evidence A. Development of Aleve and the marketing campaign.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B . Medical evidence as to "gentler" claim.
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C. Evidence of messages communicated to consumers.
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IV. Substantial Evidence Supports the Judgment A. Standard of Review
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B. Substantial Evidence
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We conclude that substantial evidence supports the trial court's finding that plaintiff had failed to show the commercials were likely to deceive members of the public, and that the commercials at issue were neither deceptive nor misleading under the UCL or the false advertising law. Therefore, we need not reach issues regarding the availability of restitution relief or the reach of the court's equitable powers in UCL cases.
The judgment is affirmed. Respondents are awarded their costs on appeal.
I concur:
HAERLE, J. concurs with separate opinion.
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I concur in everything my colleagues say, but I would have phrased matters a bit more strongly regarding the position urged in the Attorney General's amicus brief.
I find the Attorney General's position both troubling and startling for three separate and distinct reasons. First of all, and certainly most importantly, it effectively asks us to not only create new law but to do so in direct contradiction of precedent from our own Supreme Court. As the majority notes, that court has stated that the test under section 17200 is whether a "reasonable consumer" would have been misled. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55.) As I am sure the Attorney General's office understands, we are required to follows applicable precedent from our Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Second, and aside from our mandate to follow binding precedent, the Attorney General essentially asks us to become the only court to hold that a violation of section 17200 is evaluated by whether the representation may impact on the "least sophisticated consumer." As the majority opinion points out, every other court that has considered that issue has declined to do so.
Third and finally, the position adopted in those cases is consistent with common sense; the Attorney General's position is not. That position would, I suggest, allow a section 17200 cause of action to the consumer who interprets literally the radio ads saying "Albertson's is your store" and goes to court when he is not given access to his local store's daily receipts.

subset: commoncrawl


text:
|► Newt Gingrich: Today's "Bigot"Award Winner
Newt Gringrich: Today's "Bigot" Award Winner
Congratulations to….
Newt Gingrich
Today's "Bigot" Award Winner
This isn't the first Award presented to Newt. In the past, he has been the recipient of fifteen (15) Awards in various categories and/or the subject of three (6) opinion pieces. Those awards and opinion pieces are listed at the end of this article and can be viewed by going to the listed categories.
During a recent (early October 2015) appearance on the Houston based Sam Malone Comedy Show, Newt came aboard to pimp his new novel "Duplicity."
Newt began by praising Houston voters for repeating the city's LGBT-inclusive nondiscrimination law, which he said should inspire Congress to reject a Department of Education finding that Title IX prohibits discrimination against transgender students. (Brian Tashman) Newt the Bigot went on to tell Malone's intellectually bereft listeners:
Newt then referred to the alleged growth in transgender rights a "strange" cultural development. He then decided to use the issue to lambast Obama's Syrian police by saying:
Of course Syria and LGBT rights have no valid relationship to each other. I suppose Chicken Little Newt espouses sending your sons and daughters to Syria to die. However, when it came time to defend the country during the Vietnam War, Newt wasn't about to offer his services on behalf of his country.
What would Newt say if Houston passed a law allowing for the overt discrimination against womanizing two-timers?
Congrats Newt; keep up the good work! We should let everyone know of your amazing record as one of Americas Least Appreciated "Bigots"; you are far too humble.


text:
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hawk11 started following 10AMG is a thing again
10AMG is a thing again
hawk11 posted a blog entry in 10AM GeneralThe 10AM General will be commencing updates as soon as something interesting happens.
10AMG is not updating
hawk11 posted a blog entry in 10AM GeneralWe here noticed, and we'll get back to you shortly. It's been like a month, we know, but we're working.
I find it hilarious that the feature is powerful enough to destroy us all if the cap is removed. But seriously, removing the cap would destroy us all. This is a terrible idea.
In hindsight, I should have called this entry "Much To-Do About the Orders" because I basically ignored the rest of the world. Sorry everyone.
10AMG Says Features, Features, Features!
hawk11 posted a blog entry in 10AM General10AM General Says Features, Features, Features! Two weeks ago the 10AMG covered how TOP and IRON have all the right in the world to declare war against the New Polar Order, and that the Polar Order should stop whining about the lack of reason for war and fight to defend themselves. Since then, the war has expanded on many fronts, including ones right outside 10AMG's office. Too many fronts for 10AMG to satisfactorily cover despite taking last week off. Sorry folks, 10AMG's quest for academic enlightenment does not stop for CyberNations. As such, 10AMG will not have a "main blog" this week. Instead, we will roll into minor sub-blog issues. If you take issue with this, please refer your attention to the latest war chart, compiled by Shadoz19. 10AMG has better things to do this week than analyze this !@#$. The following sections are up for consideration as weekly features in the blog. Your vote will have no impact on what actually stays. If There's a War, There's the Orders: Not content with having just one of Ivan Moldavi's Orders, the war has expanded to include the New Pacific Order. The alliances of FARK and FAN have thrown themselves on-top of The New Pacific Shambling Corpse in order to get revenge for the time that NPO supported those guys who spent X amount of months keeping FARK's head in the dirt. You may know them as the GOONS Order of Neutral Shoving, an alliance that totally doesn't exist anymore. This alliance that totally doesn't exist anymore is currently fighting in the war against at least one alliance. Many have claimed that this was FARK's attempt to completely dodge their treaty obligations. However, these people would be wrong because the New Pacific Order would totally have become involved in the war inevitably at some point in the future maybe. So that argument is invalid. Obituaries: With the decline of the game, this section will now cover the "death" of prominent players in CyberNations history, giving them the 10AMG treatment. 10AMG is not omnipresent. Please submit significant players deleting via PM to the author. CyberNations Black Sheep Cortath has deleted due to inactivity. Cortath was the fourth emperor of the New Pacific Order, succeeding TrotskysRevenge after his defeat in the KARMA War. Emperor Cortath was responsible for leading the New Pacific Order through its KARMA peace-terms and then setting it on the path of reconstruction. With the declaration of war against the NPO by the forces of Mushroom Kingdom and the Federation of Armed Nations, he fell into inactivity ultimately to be replaced by Fifth Emperor Mary the Fantabulous. Since his departure from politics, Cortath has been a beacon of inactivity in a world of decline. His deletion comes as no surprise to anyone except the Federation of Armed Nations, who believe him to be important and relevant to current NPO politics. Far more importantly, TrotskysRevenge deleted earlier this month, marking an end to his five-and-change year-long reign of terror over CyberNations. TrotskysRevenge was the third emperor of the New Pacific Order, succeeding Dilber at the height of the game and NPO power. Also known as Moo-Cows with Guns, the third emperor of the Order spent his entire reign reacting to the power structure created by Dilber, attempting to keep the largest collection of egos ever assembled in CyberNations history in-line under the NPO's vision. The creations of the Continuum and One Vision were his attempts to replace the Initiative, and these two blocs succeeded in keeping the NPO afloat atop the morass of alliances that CyberNations became during his rule. He spent much of his rule crushing small alliances under his boot according to his enemies. His downfall occurred during the KARMA War in which many alliances, headed by King Ego Archon attacked the New Pacific Order over infringements on Ordo Verde's sovereignty, after which OV's sovereignty was reestablished promptly when it was absorbed by VE. TrotskysRevenge stepped down, leaving Fourth Emperor Cortath with the mess of his reign. He will be missed sorely. Doitzel Watch 2012: CyberNations Messiah Doitzel has reappeared on the scene, signaling the end of days. 10AMG will keep a running track of what he is up to so that we may point out more signs of the apocalypse. His latest posts seem to express dissatisfaction with the game. We here at 10AMG thank Doitzel for his excellent contributions to discourse in the game after his complete and utter lack of participation for the past six months. Please use your recent inactivity to lead the game out of inactivity. Keep an eye on this column for further information. FAN Being FAN: An unsurprising announcement to come out of this war came on 07 December by the Federation of Armed Nations. FAN Head-Talky mpol777 voiced the alliance's sentiments about the game at large, and more specifically, about why they are fighting. mpol777 eloquently told everyone to shut up and keep fighting, and that FAN will be the last alliance standing in this game when it inevitably dies. 10AMG supports mpol777's claim. FAN Will Be the Last Alliance Standing has been a proven fact for years. If nuclear annihilation, curb-stomps, and a dedicated war lasting almost two years did not stop FAN, the terrible game mechanics and the community's lack of interest certainly won't. Emoticon of the Week: We at 10AMG believe that there's never enough celebrating in CyberNations. As such, the emoticon of the week is Use this far more often, please. Correction: 10AMG two weeks ago referred to the force of the Order of Paradox and Independent Republic of Orange Nations as the "Orange Uber Allies." It looks like TOP is pink these days. That's cool guys; you can live your life however you want despite what your parents say. However, the Orange Uber Allies moniker will stick because 50% of the current coalition (IRON, Grand Lodge of Freemasons, TORN, East India Company) are Orange, while 25% (Colossus, The Sweet Oblivion) are Blue, and 25% (TOP, WAPA) are not matching. They are calling themselves "The Avengers," but that is far too cliché for this column. Stat of the Five-Minutes-Before-Posting 1: The New Polar Order currently stands at 6,039,772NS. This is the latest in a drawn-out decline caused by war, destruction, and nuclear weapons that hopefully the alliance will rebound from in the coming weeks. Stat of the Five-Minutes-Before-Posting 2: The Global Radiation Level is currently at 57.26. And by 57.26, 10AMG means 5.00, because that's all you are being affected by. Stat of the Five-Minutes-Before-Posting 3: Since the first of December, the Mostly Harmless Alliance has lost 2,313,532NS proving that they are, in fact, mostly harmless. Stat of the Five-Minutes-Before-Posting 4: The Green Protection Agency is now on track to be the lead alliance in CyberNations for the first time since the War on Peace back in 2007(?) Kudos to the GPA. Next Time: Stats of the Week makes its long-anticipated return! Also, next week's post should contain at least 10% more content and at least one major argument. About this blog: 10AM General is a blog dedicated to examining the CyberNations community for what it is: an absurd fabricated reality that we all play in. It is the intent, nay, the duty of this blog to point out the strange and bizarre practices of the CyberNations community that we have deemed acceptable and expose them for how absurd they are. If you notice something you think fits in line with 10AMG's sacred mission, feel free to send a PM to the blog creator. If you were upset by anything posted in this blog, welcome to 10AMG. It is an opinionated piece not intended to portray objective fact. Don't get us wrong though: we fact check. If we're clearly wrong, send us a PM and we'll fix it. We may even apologize depending on how wrong we are. But if you disagree with an opinion, post a comment so 10AMG can ignore it. If you're here to sue 10AMG, please don't. We'll stop it, we swear. We're really push-overs in the end.
10AMG Needs Better Time-Management Skills
hawk11 posted a blog entry in 10AM General10AM General will be back next Saturday.
"CyberNations Players Love To Sound Smart."
I went off their chart. At the time I wrote it, it was about there. I do appreciate the update.Thats weird. Few hours after update and they already have lost 100k. Even when I checked 5-6hrs ago. Maybe a nation ghosted them for a while :/ I don't know. Either way I'll fix it.
I went off their chart. At the time I wrote it, it was about there. I do appreciate the update.
I initially thought about that, but I figure it'd be difficult to have people agree on what is an acceptable length of time in peace mode. They could counter-attack after a week or a month, and personally I believe a month is too long. But wars last forever these days, and some might feel a month is acceptable.However, I don't think anyone can believe an alliance is truly fighting a war if 60% or more of their alliance is in peace mode. That's the basis of my definition.Yeah, 60% isn't a bad number, but there should probably be some leeway for the start of the war. Like you said, if peace mode is a good strategic tool for avoiding an initial onslaught, having 100% in peace mode would be an amazing tactical move.If this were still the case more than a week into the war, then yes, I'd agree with you. But seeing as peace mode lasts five days, I see anywhere between 5-7 days to be a fair freebie in terms of PM.(That being said, there should probably be an NS-dependent term in that as well. If your top 50% is all in PM, while your bottom 50% are all in war mode, there's a problem there too). Having 100% of your nations in peace mode sounds amazing in theory, but in practice it stops the war from even happening. If there's no war, you're not really on the defensive. It becomes a debate of where the line is drawn; how many nations need to be outside peace mode for it to be an actual fight? Is 80% in too much? Is 70%? I'm of the opinion 60% is too much. That's where I drew the line.
I initially thought about that, but I figure it'd be difficult to have people agree on what is an acceptable length of time in peace mode. They could counter-attack after a week or a month, and personally I believe a month is too long. But wars last forever these days, and some might feel a month is acceptable. However, I don't think anyone can believe an alliance is truly fighting a war if 60% or more of their alliance is in peace mode. That's the basis of my definition.
Acknowledged. I really only read his football blog.
10AM General points out some absurdities.
hawk11 posted a blog entry in 10AM GeneralThe Reason for War is that There's Reason to War. The Independent Republic of Orange Nations and the Order of Paradox declared war against the New Polar Order on November 25th, 2011 just before midnight. Welcome to war, CyberNations. Many have suggested this war was no secret. Indeed, looking at the recent thread titles one can assume the winter theme meant the Polar Bears may or may not have something coming towards them. After all, with the demise of the National Alliance for Arctic Countries (NAAC) a long, long time ago, the Polar Bears are really the only arctic-themed alliance worth mentioning. 10AMG did not analyze Polar stats running up to the conflict because, frankly, there wasn't enough interest. But at the time of print, the Polar Bears at least look roused with an 81% activity rate. And with 153 out of 268 nations in peace mode, 57% of their alliance, they must have seen it coming. However, there is a lot of outcry about the reason for war. The call rising from the Polar denizens is that the Orange Uber Allies don't have a valid "CB" for declaring this war. First of all, "CB" is a dirty term. If you must use the Latin casus belli, spell it out. Otherwise you look stupid because we all know smart people completely spell out and italicize Latin phrases. Second of all, how do the Orange Uber Allies not have a legitimate reason to fight? If they did not feel they had a legitimate reason to fight, why would they declare war in the first place? What we're looking at right now is The CyberNations Spin Cycle. The supporters of the chilly side of the war believe that they were attacked unjustly by their own definition. Now, the individuals who compose that side have decided to tell the world that the war isn't valid because they don't believe it is. The reason the Orange Uber Allies have given for smashing their shinies isn't good enough. Who cares? Well, the chilly side of course. The 10AMG tries to stay objective, but one can only stay so objective in the face of a ridiculous argument. Let's clear one thing up: when two sides are at war, they disagree with each other over why the fight is happening. I think we can all agree on that. You saw it in the Great Wars, you saw it in the Unjust War, and you saw it in KARMA. It happens. But it does not change that IRON and TOP felt enough animosity towards the Polar Bears to attack. 10AMG will tell you every single day of the year: there is no such thing as a valid reason for war in the opinion of the defender, and Hate Is A Motivator (also known as the Inigo Montoya). 10AMG has no clue what world we live in that a valid reason for war is even necessary. An alliance can launch an attack on another alliance for any given reason at any time; it's how the game works. Having a good reason to do it only serves to have people stay out of the fight. It's not necessary, but it sure makes warfare easier. IRON and TOP have spelled out their reason for fighting. It's revenge. IRON and TOP don't care about whether or not Polar "gets" why they're being attacked. They only want sweet, sweet retribution. Whether or not the CyberNations community views this reason as good or bad is a nonissue. On the other hand, Polar and their side are calling for a valid reason for war. 10AMG will tell you here first: no reason for war is ever valid if you're on the defensive. End of discussion. Who is going to honestly say "Hey, that's a really good reason for attacking my alliance?" Quick answer: not Polar. But Polar is demanding one. Essentially, Polar wants everyone to stop fighting until the Orange Uber Allies convince them (the defender) that the Orange Uber Allies have a right to come into their base and kill all their dudes. Fat. Chance. Frankly, 10AMG finds that line of logic insulting. We are much more partial to TOP and IRON's line of reasoning: "Hello. Our names are TOP and IRON. You stabbed us in the back. Prepare to die." It's far less absurd than "Give me an excellent reason for punching my face and I will let you." Taking Cover is Not For Wussies: Over the course of every war, there is always a large public outcry over the use of peace mode. People claim that peace mode is a way to avoid combat and turtle out a war. Alliances should be willing to stand directly in front of the barrel of a gun and take the shot it in the chest rather than brace themselves for impact against the large blow they are about to receive. Anything less is "dishonorable" and "for cowards." 10AMG finds that premise absurd. Any general worth his salt will tell you these days that if you're going to be in one place for a long time, you build defenses. CyberNations wars are no longer the "honorable" affairs of the past. Gone are the days of the past where warfare was a sparring match that would be fought between two alliances for short periods of time. To put this in perspective, consider the following: the First Polar War started on February 5th, 2006 and was fought solely between the New Pacific Order and the defunct National Alliance for Arctic Countries. The war ended on February 9th, 2006 with an NPO victory. No draconian terms were issued. The NAAC was not destroyed (that would happen much later). The two sides fought until it was clear who the victor was, and then it ended. The NAAC was put under a viceroyalty for less than two weeks. A few months later they fought again. The Second NPO War with FAN lasted 695 days. It is one of the longest conflicts in CyberNations history, and the intended goal of the aggressor was to wipe the defender off the face of the earth. Arguably, the only reason that war ever ended was because the Red Menace found itself embroiled in a different conflict: the KARMA War. The KARMA War lasted from April 20th, 2009 to July 19th, 2009 and involved more alliances than I have space to list. The purpose of KARMA has been disputed multiple times. Some claim the intended goal was to pacify Pacifica, others claim the goal was total annihilation. The rules of warfare have long since changed. No longer are there treaties like the "Think of the Children" pact, which was a multi-alliance agreement against nuclear first-strikes. Alliances now aim to kill each other in combat. The initiation of combat represents an alliance that has issues with another alliance so great that diplomacy will no longer solve them. They're looking to kill. A good amount of people who wake up at ten o'clock in the morning and put on their general cap (cough) still believe in the romantic notion of warfare that there are rules. One of these unwritten rules is, apparently, that the defender has to take the first punch on the chin no matter what. There is a reason these guys wake up at 10AM and are not in-charge of their alliance's military: because they are stupid. The goal of modern CyberNations warfare is complete destruction. The first blow always, always happens around midnight (in God's Time Zone) specifically because no one with a life is going to be awake and prepared at that time. At best, an alliance will muster a quarter of their members with an announcement that says "WE MAY POSSIBLY BE ATTACKED AT MIDNIGHT TONIGHT MAYBE." People like their infrastructure, but people with jobs and school in the morning don't care enough for that. Enter peace mode. Peace mode is how the common man competes with "Those That Have No Life." When you put half your alliance into peace mode, you are capable of 1) surviving the initial onslaught the inevitable Quadruple Attack That Opens the War inflicts, and 2) preserves a force ready to counter-attack. It allows the defender to not be instantly annihilated. Putting it this way, it's hard to believe that anyone is legitimately against this strategy because anyone can be attacked. You'll notice that every war the only people decrying the peace mode tactic are on the aggressing side. Jeers such as "the hippy shield" have long been a staple of CyberNations warfare, and the 10AMG acknowledges that there are ways to exploit peace mode to needlessly lengthen a war. However, that's an entirely different situation. When alliances hide behind peace mode and refuse to negotiate an end to the war, then it is "the hippy shield." Before then, it's a defensive strategy. Where is the line drawn? That will forever be a point of debate, but 10AMG offers this reasonable definition: The Hippy Shield Comes Up At 60%. That conveniently puts the Polar Bears just below the definition, we know. However, it can no longer be argued that your alliance is reasonably fighting when a senatorial super-majority of them are untouchably out of combat. We think that's fair. Instead of complaining that your opponents are successfully playing the game in a way that blunts your attack, you could try being better at CyberNations. A good way to be better at CyberNations and ensure your opponent doesn't get nations into peace mode is to not broadcast your war plans through a bullhorn. An even better tactic would be to not have so many different governments involved because, as we know, the more people involved, the more likely it is for your plans to leak. However, it's impossible to have small warfare due to the All-Powerful Treaty Matrix. We'll talk about that some other time. The Romans Are Long Dead: CyberNations factions have the annoying tendency to use Latin for everything. The only other places Latin is used more are the Catholic Church, academia, and the court system (going off the United States here). However, the Catholic Church backed off the Latin train with Vatican II, and we're betting that a majority of CyberNations players aren't Catholics fighting against Pope John XXIII's decision to move the Church into the modern age by having the Holy Mass read in the host congregation's native tongue. 10AMG does predict a good amount of CyberNations players don't care for the Holy See at all, but not for that reason. A good amount of players are college-educated, and at least two players have admitted to having Juris Doctorates (with more probably hiding in the brush). Therefore, 10AMG proposes the theory that CyberNations Players Love to Sound Smart. The events of last night support 10AMG's theory. Hell, the thread in which IRON declares war is titled "Polaris Delenda Est." This roughly translates to "The blotting out of [Polaris]." About this roughly. Admittedly, Google Translate is far from a perfect translation. It's the only source we care to seek out at the moment. Latin is still a dead language. You will only find it spoken in remote areas or situations. Arguably, perfect translations are far from possible due to the lack of native speakers. And that's exactly why CyberNations loves it. The only people who bother to learn Latin are those who want to learn Latin. It has no practical application in the real world, save for those already-mentioned niche areas where Latin is still used. You can also use it to have snide side-conversations amongst fellow Latin-speakers to make fun of those who don't fully appreciate the beauty that is Latin. You can do that with any language though, so that isn't special. Though it doesn't have a noted practical application (to our knowledge anyway), Latin isn't useless. Studying Latin gives you a proper understanding of the roots other languages use today. The study of Latin is the ultimate academic pursuit: knowledge for the sake of knowledge. Knowing it opens up other doorways. It is taught in high schools as an advanced language, and those who learn it in college are typically utilizing it to progress within their field of study. Latin phrases are utilized all the time to replace common scenarios in areas of knowledge. For example, here's a Latin phrase we use all the time in CyberNations: casus belli. We can easily say "reason for war." In fact, 10AMG is of the opinion the phrase should be dropped all-together, but it serves the purpose as a replacement. We all know exactly what casus belli means. We don't know these other stupid Latin phrases we shoe-horn into everything, and last night was a fine example. I digress. Before we talk about an example of shoe-horning, let us look at an example of proper use. Continuing to examine IRON's declaration of war, the entire event wrapped up with the phrase "Ferro Credimus." IRON gets a free pass on this one because it's clearly their motto. This is a good example of Latin use in CyberNations. This was not shoe-horned in; the phrase means something. It is the phrase that embodies what the alliance is. According to Google Translate, the idea that unites the Independent Republic of Orange Nations and everything the alliance stands for is "We believe that the sword." Believing that Google Translate is way off on this one, I sought an expert who corrected me: "In IRON we trust." Much better. Back on track, an example of shoe-horning in Latin goes to Mr Damsky. It does not go to the Federation of Armed Resistance for Capitalist Enterprises because that is just Mr Damsky under a pseudonym. 10AMG states that One Man Alliances Aren't Alliances. Not even the Prism Protection Front was an alliance until it picked up at least one more member. Mr Damsky wrapped up his announcement with the phrase "Tu ne cede malis, sed contra audentior ito." Mr Damsky then immediately translated the Latin to English as "Do not give in to evil but proceed ever more boldly against it." First, the English phrase sounds far more inspiring. That's not the issue though. The issue is why bother using the phrase if you're just going to translate it immediately afterwards? Shoe-horned. Through all of this musing on Latin, 10AMG cannot help but wonder why not just write it in English. Latin is clearly preferred for symbolic purposes like mottos, but then you have the cases were people just blatantly throw it into posts and leave the rest of us who did not take high school Latin confused. CyberNations Players Love to Sound Smart. Swaggerjacking: Swaggerjacking is the act of taking someone else's style and claiming it as your own. Swaggerjacking, much like plagiarizing, can be either intentional or unintentional. However, unlike plagiarizing, swaggerjacking is not illegal. Thus, you will never see someone receive any punishment for jacking someone else's swagger. It should still be frowned upon in society. In an effort to assist public shame, 10AMG will point out instances of swaggerjacking through CyberNations. The first instance of swaggerjacking that must be pointed out is 10AM General. 10AM General is a new blog in CyberNations that takes an approach to blogging very similar to Gregg Easterbrook's Tuesday Morning Quarterback. In fact, the names are a dead giveaway. The blogger must know what's going on. The blog is even broken down into subdivisions and uses similar tone. Rest assured ladies and gentleman, 10AMG has acknowledged the similarities between the two blog styles. When contacted, 10AMG was delighted that "someone in CyberNations was also a fan of Gregg Easterbrook's work." The creator says that 10AM General is "inspired by Greg Easterbrook's look at professional football as an absurd, artificial reality and believes that CyberNations can benefit from a blogger with a similar approach." When asked why mimic TMQ's style, 10AMG shrugged and said "I am really bad at blogging. I figure I will make my first entry in this style then morph into my own style over time." Hopefully there are no legal ramifications. The second instance of swaggerjacking that must be pointed out is that of Marneus Calgar, creator of the image atop the IRON declaration of war on the Polar Bears. Here is his work: Strangely enough, there's no spoilering in blogs. Weird. To 10AMG, long, long time observer of CyberNations, the swaggerjacking was obvious. It was also obvious to alyster, another long-time CyberNations observer. The work that this image was based off originally belonged to New Pacific Order member Teeters. Teeters is no longer in CyberNations for comment. Here is his original anti-Vox Populi image. This one is probably a page stretcher. Marneus Calgar follows up with the following comment: "God damn. I was in NPO for the entirety of the Vox time and I'd missed that. Still, both look good." Whether or not this was an intentional swaggerjack is forever subjective. 10AMG has its own opinion: For shame, Marneus Calgar. All you needed to do was cite your source rather than bask in your own glow. Stat of the Day 1: So far, the New Polar Order has only lost 48,756NS at time of print. To 10AMG, this could have been a lot worse. Kudos to the Polar Bears for successfully surviving a direct assault. Edit: I've been informed Polar has lost over 100,000NS. After checking the charts, it's true. Stat of the Day 2: Sparta, the number five alliance, currently has 4,273 nuclear weapons. That is a lot of teeth. For comparison, number one Mostly Harmless Alliance only has 3,923. Stat of the Day 3: Those wily Spartans have jumped 178,797NS in the past game cycle at time of print. IRON didn't even have that big a jump before attacking. Hope you all noticed. Next Time: 10AMG takes a look at the war and examines more of CyberNations's tendencies. Maybe we'll talk about the All-Powerful Treaty Matrix. About this blog: 10AM General is a blog dedicated to examining the CyberNations community for what it is: an absurd fabricated reality that we all play in. It is the intent, nay, the duty of this blog to point out the strange and bizarre practices of the CyberNations community that we have deemed acceptable and expose them for how absurd they are. If you notice something you think fits in line with 10AMG's sacred mission, feel free to send a PM to the blog creator. If you were upset by anything posted in this blog, welcome to 10AMG. It is an opinionated piece not intended to portray objective fact. Don't get us wrong though: we fact check. If we're clearly wrong, send us a PM and we'll fix it. We may even apologize depending on how wrong we are. But if you disagree with an opinion, post a comment so 10AMG can ignore it. If you're here to sue 10AMG, please don't. We'll stop it, we swear. We're really push-overs in the end.


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Retrieved 3 June Archived from the original on 16 December Sexual orientation and its relation to mental disorders and suicide attempts: findings from a nationally representative sample.
Kenneth Weishuhn. Statistical Analyses A moderated multiple regression was srx to test the proposed minority stress model Fig 1. Internalized homonegativity was assessed with an adapted version of the personal homonegativity subscale sec the Internalized Homonegativity Inventory IHNI [ 14 ].
Many studies confirmed that victimization, rejection sensitivity, concealment, Tai gay sex in Germany internalized homonegativity predict mental health problems [ 615 — 23 ]. King and colleagues [ 9 ] conducted a meta-analysis in which they compared the prevalence of mental disorders in gay and bisexual men with that of heterosexual men.
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This is a partial list of confirmed famous people who ib or are gay, lesbian or bisexual. Famous people who are simply rumored to be gay, lesbian, or bisexual are not Siegfried Wagner, –, German, Classical music composer, G.
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RES: Anthropology and Aesthetics. German Life and Civilization v. Hermaphrodites and the Medical Invention of Sex.
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Republican Senator Plans To Introduce Measure To Dismiss Impeachment Articles
01/02/2020 By: Richard Saunders
Senator Josh Hawley (R) has come out with a plan to quickly dismiss the impeachment articles the house of representatives passed on Trump.
Speaker Nancy has refused to send over the articles of impeachment to the senate, accusing Senate Leader McConnell of not agreeing to her conditions.
Leader McConnell has said publicly he wants the same rules as used during the Clinton impeachment trial from 1999.
Dems said impeachment was URGENT. Now they don't want to have a trial, because they have no evidence. In real world, if prosecution doesn't proceed with case, it gets dismissed. So on Monday, I will introduce measure to dismiss this bogus impeachment for lack of prosecution
This will expose Dems' circus for what it is: a fake impeachment, abuse of the Constitution, based on no evidence. If Dems won't proceed with trial, bogus articles should be dismissed and @realDonaldTrump fully cleared
My proposal will take form of motion to update Senate impeachment rules to account for this unprecedented attempt to obstruct Senate trial. Stay tuned


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This morning I recieved an email from American Public Radio (who produce many shows for NPR), regarding a new web community they've just launched called Gather.com.
I haven't taken he time to check it out much, but it looks interesting. Here's the skinny on the from APR:
"Gather.com is a place to share your passions, to learn from others with similar values, and to explore the world around you. The Gather.com community helps identify the best of what's shared there. This means you can spend less time looking for information or inspiration, and more time experiencing it. American Public Media and Gather.com invite you to let people know what's on your mind — anytime.
Others are already connecting on Gather.com. Take Michael, AKA "e-to-the-nth," for instance. He submits a series of "spiritual meanderings" on topics from child rearing to baseball. Robert from Cambridge, Massachusetts, questions the place of evolution in the scientific world. Amy from San Francisco has her own food blog. Macky, mother of four, tackles the problem of mastering new technologies. And you can share anything you wish. Whether you want to find people who are well informed on political issues, books, food, wine, adventure travel, new technology, or public radio, you should find a core of smart engaged people interested in the same subjects at Gather.com."


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After clashing with Trump over pandemic response, Maryland's Hogan now under fire for his own state leadership
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Why Michelle Obama opening up about depression is a big deal for Black women
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