Judge Issues Written Ruling in Favor of ABO in AOS ‘False Advertising’ Lawsuit

By

LOS ANGELES—After more than two years of legal wrangling that pitted optometrist against optometrist following a complaint filed by the American Optometric Society (AOS) against the American Board of Optometry’s use of “board certification,” the Honorable Judge A. Howard Matz of the U.S. District Court, Central District of California, ruled in favor of the ABO. While the judge originally ruled from the bench on Aug. 2 following a three-day court hearing, it was not until just last week, on Thursday, Aug. 23, that he issued his written ruling in the false advertising lawsuit.

In his judgment, he ruled, “It is hereby ordered and adjudged that judgment be and is hereby entered in favor of Defendant American Board of Optometry, Inc. and against Plaintiff American Optometric Society, Inc. on Plaintiff’s remaining claim that Defendant’s use of the term ‘board certification’ is false, misleading, confusing, deceptive or unfair in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1525.”

In the court order, also issued on Thursday, Aug. 23, Judge Matz ruled that the AOS “did not meet its burden of proof” under the Lanham Act in regards to four out of six elements: “(1) the ABO made a false statement of fact about its own product; . . . (3) the statement actually deceived or had a tendency to deceive a substantial segment of its audience; (4) the deception was material in that it was likely to influence the purchasing decision;. . . (6) the AOS or one or more of its members has been or is likely to be injured by the false statement. The Court finds that the AOS failed to present evidence that would sustain its claim under the Lanham Act. In fact, in a number of instances, the AOS presented evidence that negated elements of its claim.”

Regarding the ABO’s next steps, Jeffrey L. Weaver, OD, told VMail, “The ABO will continue to work to encourage every optometrist in the U.S. to participate in our voluntary program that has been supported by every major entity within the profession.”

ABO chairman of the board, Paul Ajamian, OD, further stated, “This ruling ends a bitter chapter in the history of optometry. We are moving ahead and look forward to continuing to serve the profession with a credible board certification program.”

In response to the ruling, Pamela Miller, OD, FAAO, JD, DPNAP, president and chairman of the board of AOS, told VMail, “Our members remain very concerned about the current system that led to the creation of the ABO. The AOS feels there is work to be done to make optometry and the organizations that represent optometry stronger and more representative. We will continue our mission, ‘giving optometrists a voice in their profession.’”