The Court of Appeals for the Second Circuit reviewed a dismissal of a class action complaint that was filed against Time Warner regarding its advertising claims for its Road Runner Internet service. According to the complaint, Road Runner provided (1) an "always-on connection" (2) at a "blazing speed" (3) that is "up to 3 times the speed of most standard DSL packages and up to 100x faster than dial-up," and (4) the "fastest, easiest way to get online." Plaintiffs, who sued on behalf of a putative nationwide class consisting of Road Runner subscribers, alleged that these advertisements were false and misleading because Time Warner engaged in network management techniques that decrease the speed at which Road Runner subscribers access certain high-bandwidth Internet applications. Plaintiffs were asked to submit copies of the allegedly deceptive advertising, but provided the court with advertisements that ran after the complaint was filed, and only contained the claim "up to 3 times the speed of most standard DSL packages and up to 100x faster than dial-up." The court noted that other advertisements containing the other statements were closely accompanied by multiple disclaimers and explanatory language, including the statement, "[a]ctual speeds may vary." Given that the plaintiffs were unable to provide proof of Time Warner's allegedly false claims, the court affirmed the dismissal of the case.

TIP: Advertisers must have substantiation in their files before claims are made, and material limitations should be clearly and conspicuously disclosed.  However, the plaintiff in a false advertising action must be able to prove the allegedly false claims were actually included in advertising disseminated by the defendant.