BROOKE GLADSTONE: This month two eager beaver PR reps for Sony Pictures were suspended when they were caught fabricating movie blurbs for TV ads. The Sony marketeers created "David Manning" of the Ridgefield Press, a Connecticut weekly that actually does exist. Then they quoted him saying nice things about Sony movies including The Animal and A Knight's Tale. Sony was shocked, shocked and sorry, but the company may soon be even sorrier. Two disappointed moviegoers in California are suing Sony for false advertising, and the La Jolla-based law firm of Blumenthal and Markham are hoping to make it into a class action suit. Attorney David Markham is on the line from La Jolla. Mr. Markham, is your client blaming Sony because he bought a ticket to A Knight's Tale?
DAVID MARKHAM: The positive review of the film was one of the things, according to Rezec, that caused him to go and buy a ticket and see the film!
BROOKE GLADSTONE: So does he think Sony owes him 12 bucks?
DAVID MARKHAM:He at this point thinks that Sony owes the amount of money which Sony derived from selling this movie as a result of running the false ad -- in other words how much in ticket sales would Sony have made without the false review versus how much would they have made with the false review.
BROOKE GLADSTONE: Which is probably impossible to determine.
DAVID MARKHAM:It is, and so California law solves the problem another way. The law says that you engage in what's called deterrence so that, you know, the next week a person selling a car or a person selling a pair of shoes doesn't make a statement about it which is false, so we don't have really a damage claim, but there is a disgorgement claim.
BROOKE GLADSTONE: So the message here is Sony should pay for lying.
DAVID MARKHAM:Yeah, the message is that Sony should not profit for engaging in false advertising --making up lies -- statements -- false critics. They shouldn't profit by it, and that's what the statute says!
BROOKE GLADSTONE: How much money are you looking at?
DAVID MARKHAM: We don't really know, but you're looking at most likely a percentage of what their ticket sales were.
BROOKE GLADSTONE: Right. But are you talking a hundred thousand - half a million - a million - two million?
DAVID MARKHAM:We don't - I, I'm sure you're well north of a million dollars, and it really depends on what you see when you look at the revenues with regard to each of the respective movies.
BROOKE GLADSTONE:You know out here in New York we have--something called Nathan's Hot Dogs, and they say they're the best hot dogs in the world. And I've had them, and they just aren't. Should I sue them?
DAVID MARKHAM: There is somewhat a difference between the expression of an opinion and a statement of fact!
BROOKE GLADSTONE: The fictional David Manning said that the Knight's Tale was "a winner."
DAVID MARKHAM: Sure. But did Nathan's say Julia Child has sampled our hot dogs and she thinks they're the best hot dogs in the world -- and if Julia Child did not do so-- then Nathan's is exposed for false advertising!
BROOKE GLADSTONE: So if Sony had come out and said our film is a winner, you'd have no case.
DAVID MARKHAM:Well-- you would have an expression of an opinion rather than a statement of fact. If you state for example a critic has reviewed my movie positively or given an endorsement when no critic exists, you're in the realm of fact rather than in the realm of opinion.
BROOKE GLADSTONE:This is a case of somebody who read a review, spent 12 dollars - they probably should have known better - but don't you think you're going to get laughed out of court?
DAVID MARKHAM: No! What do we do with the law if we tell people well listen, you know, it's okay - you can lie - you can hype or product in any way you want to - fine! Go ahead and do it, because the product you sell is worth less than 15 dollars, so why do you need to comply with the law on false advertising that governs every other business in the state? In other words where do you draw the line?
BROOKE GLADSTONE: Dave Markham, thank you very much!
DAVID MARKHAM: Oh, sure!
BROOKE GLADSTONE:Dave Markham is an attorney with Blumenthal and Markham which is now attempting to bring to trial a case against Sony for false advertising.