## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-20610



### m 01-21255

_______________



### K ENNETH 

### F ORD



### , DR.,



### Plaintiff-Appellant,

VERSUS



### N YLCARE 

### H EALTH 

### P LANS OF THE 

### G ULF 

### C OAST



### , I NC



### ., ET AL



### .,

Defendants,



### A ETNA 

### U.S. H EALTHCARE



### , I NC



### .,

A T EXAS C ORPORATION ;

THE 

### M ETRA 

### H EALTH 

### C ARE 

### P LAN OF 

### T EXAS



### , I NC 

### .;

THE 

### M ETRA 

### H EALTH 

### I NSURANCE 

### C OMPANY 

### ;

U NITED 

### H EALTH 

### C ARE 

### I NSURANCE 

### C OMPANY



### , I NC 

### .;

A ETNA 

### U.S. H EALTHCARE



### , I NC



### .,

A P ENNSYLVANIA C ORPORATION

,



### Defendants-Appellees.

_________________________

Appeals from the United States District Court

for the Southern District of Texas

_________________________

August 1, 20022

Before SMITH, BENAVIDES, and

PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

Kenneth Ford is an orthopedic surgeon who

has contracted with various health maintenance organizations (“HMO’s”) as a specialist.

In May 1996, he sued the defen dant HMO’s,

claiming mult iple causes of actio n stemming

from their allegedly deceptive advertising. All

of Ford’s claims were dismissed over a period

of several years.

Ford now appeals two of the district court’s

rulings: its 1999 decision to deny class certification to a proposed Lanham Act plaintiff

class of all certified physicians who have contract e d with the defendant HMO’s, and its

2001 summary judgment dismissing Ford’s individual Lanham Act false advertising claim on

the ground that he lacks prudential standing.

Ford conten d s that the HMO’s have used

false advertising that claims that their management techniques improve health care quality

and t hat they

allow patients and doctors to

mak e their own treatment decisions. Ford

argues that the defendants’ cost-control measures und ercut quality and “ration” medical

care 

### SS sometimes against the will of doctors

and patients. Ford contends that the defendants’ co st-control policies reduce the incomes

of doctors, including his own. He also claims

that, by attracting new customer s to the

HMO’s’ health plans, the allegedly deceptive

advertising further reduces doctors’ incomes

because it increases the HMO’s’ market power

over the price of medical services. We affirm

the dismissal of Ford’s c laims for lack of

Article III standing. II.

A.

The relevant porti on of the L a nham Act

provides for a cause of ac t ion as follows:

(a) Civil action

(1) Any person who, on or in connection

with any goods or s ervices, or any

container for goods, uses in co mmerce

any word, term, name, symbo l, or

device, or a ny combination thereof, or

any f alse designation of origin, false or

misleading description of fact, or false

or misleading representation o f fact,

which 

### SS

(A) is likely to cause confusion, or to

cause mistake, or to deceive as to the affiliat ion, connection, or association of

such person with another person, or as

to the origin, sponsorship, or a pproval

of his or her goods , services, or

commercial activities by another person,

or

(B) in commercial advertising or

promotion, misrepresents the nature,

characteristics, qualities, or geographic

origin of his or her or anot her person’s

goods, servi ces, or commercial

activities,

shal l be liable in a civil action by any

person who believes that he or she is or

is likely to be damaged by such act.

15 U.S.C. § 1125(a) (1994) . The district

court held that Ford lacks prudential Lanham

Act standing under this section. S ee Procter &

Gamble Co. v. Amw

ay Corp. , 242 F.3d 539,

560-62 (5th Cir. ) (outlining test for determining prudent ial Lanham Act standing),3

cert. denied

, 122 S. Ct. 329 (2001). Although

Article III consti

t utional standing was not

raised by t he parties or considered by the

district c ourt, we m ust 

### S S where necessary 

### SS raise it sua sponte

. S

EC v. Forex Asset

Mgmt., LLC , 242 F.3d 325, 328 (5th Cir.

2001). 1 Standing “is an e ssential and unchanging

part of the case-or-controversy requirement of

Article III.” Lujan v. Defenders of Wildlife

, 504 U.S. 555, 560 (1992).

[The irreducible constitutional minimum

of standing contains th

ree elements.

First, the plaint iff must have suffered an

‘injury in fact’ 

### SS

an invasion of a legally

protected interest which is (a) concrete

and particularized . .

. and (b) actual or

imminent not conjectural or hypothetical

. . . Second, there must be a causal connection bet ween the injury and the

co nduct complained of . . . Third, it

must be likely , as opposed to m erel y 1 In his special concurrence, Judg e Benavides

contends that this case should be decided on the

basis of Lanham Act pruden tial standing rather

than Article III constitutional standing, because the

parties did not have an opportun i ty to brief the

latter. T his issue ignores the fundamental point

that wherever possible, Article III standing must be

addressed befo r e all other issues “because it

determines the court’s fundamental power even to

hear the suit.” Rivera

, 283 F.3d at 319. In the absenc e of Ar ticle III standing, we have no right to

opine on issues of prudential standing.

The Third Circuit has explicitly recognized that

Lanham Act prudential standing cannot be

addressed so long as Article III standing remains in

doubt, because

“[c]onstitutional standing is a

threshold issue that we

should address before

examining issues of prudential sta n ding.” J oint

Stock Soc’y v. UDV N. Am., Inc. , 266 F.3d 164,

175 (3d Cir. 2001). Although the special

concurrence attempts to distinguish Joint Stock on

its facts, the Th ird Circuit did not rest its holding SS that Article III standing should be addressed

first SS on the specifics of the case before it, but

instead adopted this principle as a broad general

rule. We see no reason to create a circuit split on

this issue.

Even if we did have the authority to forego

cons ider ation of Article III standing, there would

be no need

to exercise it. As the special

c oncurrence recognizes, “to the extent that ident ical

issues have already been raised in the litigation, the

threat of procedural prejudice is greatly

diminished.” In this litiga tion, the issue of

(continued...) 1 (...continued)

causation that is central to our holding on Article

III standing was extensively contested as part of

the ongoing disp u te over Lanham Act prudential

standing.

In any inquiry into Lanham Act prudential

standing, the court must weigh “(1) the n ature of

the plaintiff’s alleged injury: Is the injury of a type

that Congress s ought to redress in providing a

private remedy for violations of the [Lanham

Act]?; (2) the directness or indire ctness of the

asserted injury; (3) the proximity or remoteness of

the party to the alleged injurious conduct; (4) the

speculativeness of the damages claim; and (5) the

r isk of duplicative damages or complexity in

apportioning damage s.” P rocter & Gamble, 242

F.3d at 562. Causation is undeniably relevant to at

least the second, third, and fourt h prongs of this

test, and defendants have consistently argued that

Ford lacked prudential standing in part because he

failed to provide adequate evidence of causation.

Despite this repeated challenge, F ord has not

provided evidence demon strating that he has suffered even a s mall loss as a result of defendants’

ad ver tising. He therefore has failed to meet his

burden to “set forth by affidavit or other evidence

specific facts ” validating his right to standing.

Lujan , 504 U.S. at 561 (citations omitted).4

speculative, that the i njur y will be

redressed by a favorable decision.

Id. at 560-61 (quotations omitted).

“The party invoking federal jurisdiction” 

### SS Ford 

### SS bears the burden of proof in est ablishing all three element s. I d. at 561.

“Failure to establish any o ne [of them]

deprives the federal courts o f jurisdiction to

hear the suit.” Rivera v. Wyeth-Ayerst Labs.

, 283 F.3d 315, 319 (5th Cir. 2002). At the

summary judgment stage, “the plaint iff can no

long er rest on . . . mere allegations, but must

set forth by affidavit or other evidence specific

facts” validating his right to standing. Lujan

, 504 U.S. at 561 (citations omitted). The question of Article III st anding must be decided

pri or to the prudential standing and class certification issues raised in this appeal, “because

it determines the cou r t's fundamental power

even to hear the suit.” 2 Rivera

, 283 F.3 d at

319. 3 Ford cannot prove the causation

necessary to establish Article III standing. B.

Ford claims that his injury consists of a reduction in his income from his medical practice

caused by the defendants’ restrictive costcontainment policies, which allegedly have the

effect of reducing payments to contract specialists. He contends that the HMO’s have

been able to lower their payments to contract

physicians as a result of increased market power gained by attracting patients through

deceptive advertising. This argument fails to

satisfy the causation prong of standing.

To meet t he causation requirement, Ford

would have to p resent evidence affirmatively

proving that the reduction in his income was a

consequence of the HMO’s’ restrictive policies

and that those policies in turn were established

or at least made more onerous a s a resul t of

increa sed market power created by the

acquisition of new customers through the defendants’ allegedly deceptive ads. 4 Nothing in

the record establis hes the validity of either of

the two links in t his causal chain, and Ford

must pro vide evidence of both if he is to establish the causation necessary for Article III

standing. Otherwise, he cannot show that his

injury is “fairly traceable to the challenged action of the defendant.” L ujan

, 555 U.S. at 560

(quotations and ellipses omitted).

There is no evidence in the record to show

that Ford’s inco me has in fact declined any

more than would be expected as a result of

events completely unrelated to the HMO’s’

activities. When asked by opposing counsel 2 As we noted in Rivera , “there is a limited exception for suits in which the class certification issues are “‘log ica lly antecedent to the existence of

any Article II I issues.’” R ivera

, 283 F.3d at 319

n.6 (quoting Amchem Prods., Inc. v. Windsor

, 521

U.S. 591, 612 (1997)); see also Or tiz v.

Fibreboar

d Corp. , 527 U.S. 815, 831 (1999)

(same). This exception does not a pply here,

however, for the same reason it was inapplicable in

Rivera : “In the instant case, in contrast to Ortiz

and Amchem , the standing question would exist

whether [the plaintiff] filed h[is] claim alone or as

part of a class; class certification did not create the

jurisdictional issue.” R ivera

, 283 F.3d at 319 n.6.

3 Cf. Joint Stock S oc’y , 266 F.3d at 175

(holding that Article III “constitutional standing”

must be addressed before considering Lanham Act

“prudential standing”). 4 See Joint Stock Soc’y , 266 F.3d at 178

(holding that Article III standing for a Lanham Act

false advertising cla im is lacking where the

plaintiff’s injuries cannot be t raced to the

defendants’ challenged advertisements “ b ut are

rather the result of an independent cause”).5

whether he “could identify a single patient you

lost as a result of the defendants’ ads,” Ford

admit t ed that he could not. There is also no

evid ence demonstrating that Ford ever received a lower payment for his services than he

w ould have in

the absence of the

advertisements.

In its ruling denying Ford’s petition for

class certification, the district court noted that,

during the 1992-96 period, Ford’s income did

indeed decline, but t he income of all of his

pa rtners went up. F

ord v. NYLCare Health

Plans, Inc.

, 190 F.R.D. 422, 426 (S.D. Tex.

1999). The district court also pointed out that

some or all of the decrease in Ford’ s income

might have been a result of the fact that “he is

not employed full time as a physician . . . and

spends a significant period of time filming a

fishing show for a sports network.” I d. Ford

bears the burden of proving otherwise, and he

has not met it. 5

AFFIRMED.

5 See Johnson v. Bd. of Regents of the Univ. of

Ga.

, 263 F.3d 1234, 1268 ( 11th Cir. 2001)

(holding that “a plainti ff cannot serve as a class

representative if she lacks standing to advance the

class’s claim”).6

FORTUNATO P. BENAVIDES, Circuit Judge, Specially Concurring:

Although I would reach the same result as the majority, I write separately because I would base

my analysi s no t o n Article III standing, but on prudential standing under the Lanham Act. As the

majority notes, Article III has never been raised as an issue in this case. It was never briefed by the

parties, questioned by the dis t rict court , or even mentioned at oral argument. The parties did not

have the benefit of a hearing to present evidence o n the issue. Nevertheless, despite the complete

absence of any suggestion that Article III standing might be deficient, the majority requires Dr. Ford

t o have adduced evidence of causation between the alleged false advertising and his asserted

economi c injury. Concluding that he has not met this burden, it holds that Article III standing is

lacking.

Of course, the jurisdictional issue of standing may be raised sua sponte despite the parties’ failure

to raise it. H

enderson v. Stalder

, 287 F.3d 374, 379 n.5 (5 th Cir. 2002). The burden of establishing

standing, which rests on the party invoking federal court jurisdiction, varies depending upon the stage

at which standing becomes an issue. L ujan v. Defenders of Wildlife

, 504 U.S. 555, 561 (1992). At

the pleading stage, we look only to the sufficiency of the allegations. I d. “In response to a summary

judgment motion, ho wever, t he plaintiff can no longer rest on such ‘mere allegations,’” but must

adduce evidence in support of the elements of standing. I d. (quoting Fed. R. Civ. P. 56(e)). At the

final stage of the litigation, standing must be supported adequately by the evidence offered at trial.

Id.

Citing Lujan for support, the majority assumes that the summary judgment standard should govern

even when the issue is raised sua sponte by an appellate court without notice to the parties. Lujan

,

however, does not go so far. It holds only that the summary judgment standard is appropriate in7

reviewing a party’s “ res

ponse to a summary judgment motion

. ” I d. (emphasis added). This

distinction is significant because it implicates concerns of notice and fairness. If the defendant

challenges standing in a motion for summary judgment, then the plaint iff is able to direct the court

to the evidence that supports federal jurisdiction. Similarly, if the court provides an opportunity for

briefing after the issue is raised sua sponte

, there is no risk of unfairness to the plaint iff. By contrast,

if the appellate court raises the issue sua sponte without notice to the parties, the plaint iff is deprived

of a meaningful opportuni ty to address the court’s concerns by ident ifying record evidence to satisfy

the standing requirements. C f. St. Paul Mercury Ins. Co. v. Williamson

, 224 F.3d 425, 435 (5 th Cir.

2000) (requiring the district court to provide party with ten days notice and opportuni ty to respond

before summary judgment is entered sua sponte ).

In situations where a party has not been afforded an opportuni ty to respond to a court’s sua sponte

concerns about standing, it would be unfair to broaden review beyond the sufficiency of the pleadings.

For example, in Church v. City of Huntsville

, 30 F.3d 1332, 1336 (11 th Cir. 1994), the Eleventh

Circuit confronted the issue of what standard to apply when the litigation had progressed beyond the

stage of a motion to dismiss, but without any challenge to standing in the district court. In that case,

the plaintiffs had obtained a preliminary injunction, but neither the defendants nor the district court

ever questioned the existence of standi ng. The Eleventh Circuit recognized that although it was

proper for the issue to be raised for the first time on appeal, “as a matter of fairness, the [defendant’s]

failure to question the plaint iffs’ standing in the district court does affect the standard to which we

will hold plaint iffs at this stage of the proceedings.” I d. A plaintiff should be expected, without

prodding from the court or the opposing party, to file a complaint that sufficiently alleges standing

and to prove such facts at trial. Still, the Eleventh Circuit understood that “[i]t might well be unfair,8

however, to impose a standing burden beyond the sufficiency of the allegations of the pleadings on

a plaint iff seeking a preliminary injunction, unless the defendan t puts the plaintiff on notice that

standing i s contested.” I d. A ccordingly, the court determined that the standing issue should be

judged based on the allegations in the complaint. Id. I see no reason why this same concern about

notice and fairness should not affect the standard of review at the summary judgment stage.

Certainly, in some cases it will make no difference which standard is applied to a s ua sponte

challenge to standing. In such cases, the potential for prejudice is d e minimis because the party’s

response will be futile. For example, a review of the record by the appellate court might indicate that

there is an independent factor that precludes the plaint iff from ever demonstrating that his injury flows

from the defendant’s wrongful conduct. Such a factor was present in Joint Stock Soc’y v. UDV N.

Am., Inc.

, 266 F.3d 164 (3d Cir. 2001), which is cited by the m ajority. In J oint Stock

, the Third

Circuit affirmed a district court’s determination that constitutional standing was lacking in a Lanham

Act false advertising case brought by producers of Russian vodka against the American makers of

the “Smirnoff” bran d of vodka. I d. at 168. The Russian producers alleged i nter alia that the

Americans were misrepresenting the origin and historical pedigree of their Smirnoff vodka, which in

fact was made in the United States and not endorsed by the original Smirnov family. S ee id. at 177-

78. Holding that there was no evidence of a causal connection between the asserted injury and the

allegedly false ads, the court pointed to the fact that the plaint iffs did not have superior trademark

rights to the Smirnoff brand, without which they could not have marketed their vodka in the United

States under the S mirnoff name. S ee id. at 178. In light of this “independent cause,” the Russian

producers would be unable to use the Smirnoff name in the United States regardless of whether the

American makers were engaging in false advertising. S ee id. In cases like J oint Stock

, where it will9

be logically impossible to establish standing, there is no need t o provide the party with an extra

opportunity to identify evidence in support of a fatally flawed theory.

In other cases, pre

judice will be minimized by the fact that the party has notice of the need to

adduce evidence in support of Article III even though neither the court nor the defendant makes a

formal motion. For example, in B ischoff v. Osceola County, Fla. , 222 F.3d 874, 882 n.8 (11 th Cir.

2000), the Eleventh Circuit held that it was proper for the district court to apply a summary judgment

standard on a sua sponte challenge to standing because the plaint iffs were on notice that standing was

an issue, as they raised it themselves in briefs. Similarly, to the extent that identical issues have

already been raised in the litigation, the threat of procedural prejudice is greatly diminished. S ee

Bridgew ay Corp. v. Citibank

, 201 F.3d 134, 140 (2d Cir. 2000) (recognizing reduced threat of

procedural prejudice where court’s sua sponte determination is based on issues identical to the raised

by the moving party). In the present case, alt hough defendants had already attacked Dr. Ford’s

prudential standing under the Lanham Act, this issue is not identical to constitutional standing under

Article III.

Applying these principles to the present case, before reaching sua sponte the conclusion that Dr.

Fo rd has not met his summary judgment burden, I would ask whether a response would be futile.

Notwithstanding the majority’s well-written and thoughtful analysis, I am unconvinced that affording

Dr. Ford an opportuni ty to respond to our concerns about standing would be an exercise in futility.

There is no dispute that Dr. Ford could survive a challenge to standing based solely on the sufficiency

of his pleadings. His complaint alleges t hat the defendants have increased their customer base

through deceptively false advertising, have leveraged that increased customer base to obtain lower

fee arrangements for Dr. Ford’s contract services, and have therefore caused him economic injury.10

Clearly, these allegations satisfy the requirements of Article III. The issue, as the majority notes, is

whether there is evidence to support these links in the causal chain. The majority cites several failings

in the record evidence, but none of them are fatal to Dr. Ford’s theory. It notes that in a deposition,

Dr. Ford was unable t o identify a single patient lost as a result of the HMOs’ ads. Although such

evidence would undoubtedly be helpful to his case, it is by no means a necessary element. In Lanham

Act § 43(a) cases, it is often difficult

, if not impossible, to point to specific evidence of lost sales. S ee

Coca-Cola Co. v. Tropicana Products, Inc.

, 690 F.2d 312, 316 (2d Cir. 1982) (“It is virtually

impossible to prove that so much of one’s sales will be lost or that one’s goodwill will be damaged

as a direc t result of a competitor’s advertisement. Too many market variables enter into the

advertising-sales equation.”); Grant Airmass Corp. v. Gaymar Indus., Inc.

, 645 F.Supp. 1507, 1514

(S.D.N.Y. 1986) (rejecting requirement that plaint iff must identify “a lost customer actually misled

by the advertising literature”). This difficult y in ident ifying specific lost sales is further exacerbated

by the immense complexity of the market at issue in this case. Decisions about plans and providers

are influenced by a myriad of factors, and the ads are targeted at both the users (employees) and the

purchasers (employers) of the managed care plans. It is not unsurprising, therefore, that Dr. Ford

could not name a single lost patient, and his failure to do so certainly does not mean that standing is

lacking.

Similarly, the fact that Dr. Ford now spends part of his time hosting a fishing show on a sports

television network does not preclude standing. As the majority notes, this observation was part of

the district court’s analysis of Dr. Ford’s petition f o r class certification. Specifically, it found Dr.

Ford’s television work relevant to the typicality issue under Fed. R. Civ. P. 23(a)(3), as Dr. Ford’s

economic situation mi ght no t be similar to that of the other putative class members. S ee Ford v.11

NYLCare Health Plans, Inc.

, 190 F.R.D. 422, 426 (S.D. Tex. 1999). Typicality aside, however, the

possibility that Dr. Ford’s income has declined due to an increase in the hours he spends fishing does

not mean that he has not also suffered economic injury as a result of the defendants’ false ads. Such

e v idence goes not to the existence, but the quantum of injury. All that is required for Dr. Ford to

have standing is “an ident ifiable trifle” of an injury. A ssoc. of Cmty. Orgs. for Reform Now v. Fowler

,

178 F.3d 350, 358 (5 th Cir. 1999) (citations omitted). His work on the fishing program therefore is

practically irrelevant to the standing issue.

In sum, I think it is premature to apply the summary judgment standard to Dr. Ford’s standi ng

under Article III. He has not been given an opportunity to identify the evidence in support of

standing, and there has been no con vincing argument that such an opportunity would be futile.

Accordingly, I would not decide this case on Article III grounds, but would reach the same result by

holding that Dr. Ford lacks prudential standing under the Lanham Act. Regardless of the oft-repeated

maxim that Article III standing is jurisdictional and must be resolved prior to any analysis of the

remaining issues in the case, “it is entirely appropriate to deny standing on prudential grounds if that

course is easier, or more clearly right, than to rule on constitutional grounds first.” 13A Charles Alan

Wright, et al., F

ederal Practice and Procedure , § 3531.15 (2d. ed. Supp. 2002); c f. Steel Co. v.

Citizens for a Better Env’t

, 523 U.S. 83, 92 (1998) (disapproving of “hypothetical jurisdiction” cases

in which standing is assumed in order to address clear merits issue, but distinguishing “cases in which

a statutory standing question was decided before a question of constitutional standing”). In this case,

prudential standing was briefed by the parties and ruled on by the district court, so nothing prevents

us from holding Dr. Ford to his burden of ident ifying evidence demo nst rating a genuine issue of

material fact on the issue.12

I would conclude that Dr. Ford has failed to satisfy his summary judgment burden on the issue of

prudential standing under the Lanham Act. In determining whether a plaintiff has prudential Lanham

Act standing, we have recently adopted the test articulated by the Third Circuit in Conte Bros. Auto.,

Inc. v. Quaker State-Slick 50, Inc.

, 165 F.3d 221, 233-34 (3d Cir. 1998). S ee Procter & Gamble Co.

v. Amway Corp.

, 242 F.3d 539, 562-63 (5 th Cir 2001) (“ P & G ”). Under this test, five factors are

relevant to the prudential standing analysis: “(1) the nature of the plaint iff’s alleged injury

. . . (2) the

directness or indirectness of the asserted injury; (3) the proximity or remoteness of the party to the

alleged injurious conduct; (4) the speculativeness of the damages claim; and (5) the risk of duplicative

damages or complexity in apportioning damages.” Id. at 563. Although technically distinct, these five

factors can be distilled into an essential inquiry, i.e., whether, in light of the competitive relationship

between the parties, there is a sufficiently direct link between the asserted injury and the alleged false

advertising. C

f. id. at 562 n.51 (citing Restatement (Third) of Unfair Competition § 3 cmt. f (1995)).

As the primary focus of the Lanham Act is on commercial harms that result from anti-competitive

behavior, the first factor looks to the nature of the plaint iff’s alleged injury. S ee id. at 563 (quoting

Conte Bros.

, 165 F.3d at 234). Dr. Ford’s asserted injury, while certainly a commercial harm, is

competitive only in the most attenuated sense. He describes his injury as the lost income resulting

from lower contract fees paid by HMOs. He attributes the HMOs’ ability to demand such reductions

to the increased bargaining power provided by a wider customer base, the fruit s o f the false

advertising. Dr. Ford’s essential complaint, therefore, is that the false ads are pulling customers away

from plans that compensate him better and into HMOs, which secure reduced fee arrangements. The

main competitive effect of the ads, therefore, is felt adversely by other insu rance plans, not by Dr.

Ford. He himself is hurt only because the HMOs then exploit their competitive advantage over other13

plans to press physicians to accept lower compensation arrangements. Because t his harm is only

tangentially related to competition, it is not the “type that Congress sought to redress” in passing the

Lanham Act. See Conte , 165 F.3d at 234 (citation omitted).

Turning to the second factor, we have never required a direct competitive relationship between

the plaint iff and the defendant. In fact, the C onte test specifically rejected such a requirement. See

Conte

, 165 F.3d at 231-32. Instead, the central issue is whether a plaintiff has “a reasonable interest

to be protected against false advertising.” I d. at 231. Again, the co mplexit y o f the relationship

b et ween Dr. Ford and the HMOs cuts against Lanham Act standing. Even though a plaintiff can

suffer a Lanham Act injury through indirect competition, such competition between Dr. Ford and the

HMOs is so tenuous that it borders on the hypothetical. He does not provide health insurance and

the HMOs do not provide direct patient care. In the absence of managed care plans, patients would

come to Dr. Ford though traditional indemnity or fee-for-service insurance coverage. Theoretically,

patients could seek his services without going through an insurance plan, but Dr. Ford has provided

no evidence that such customers represent a significant porti on of the market. In the absence of a

group of consumers that would come to him directly but for the HMOs’ deceptive ads, his injury is

too indirect to support Lanham Act standing.

Applying t he third factor, which looks to “the proximity of the party to the alleged injurio us

conduct,” we have held that the justification for Lanham Act standing is dimini shed if there is “an

ident ifiable class of persons whose self-interest would normally motivate them to vindicate the public

interest” by bringing a Lanham Act claim. P & G

, 242 F.3d at 563 (citation omitted). As consumers

do not have standing under the Lanham Act, they should be irrelevant to this analysis. C f. id. at 563-

64 (noting that consumers do not have standing under the Lanham Act and focusing on rights of14

dis t ribut ors). Moreover, we need not take into account consumers’ ability to sue for fraud.

Otherwise, as consumers would presumably almost always be able to bring an action for fraud, this

factor would never counsel in favor of standing. In the present case, however, Dr. Ford has presented

no evidence that physicians are the only class of persons motivated to bring a Lanham Act claim.

Certainly, we should exclude from the possible alternatives other HMOs, as the ads in question tout

th e benefit s of HMOs in general, not some specific companies over others. Nevertheless, in the

broader health insurance market, HMOs compete with other plans, inc luding fee-for-service or

preferred provider organizations (PPOs). Dr. Ford has provided no evidence that to the extent that

the defendants are making false claims about their HMO plans, purveyors of these other plans would

not be motivated to sue under the Lanham Act.

The fourth factor, the speculative nature of the plaint iff’s damages, is neutral at best for Dr. Ford.

As the district court noted, Dr. Ford dropped his damages claim after class certification was denied,

but reserved it in the event that the district court’s decision was reversed. In his brief on appeal, he

concedes that quantifying any damages would be a complex task. Dr. Ford argues, however, that if

only injunctive relief is at issu e, t his factor actually argues in favor of standing. He relies on the

Lanham Act doctri ne t hat a plaintiff’s inability to definitively quantify his damages should not

preclude the granting of injunctive relief, as an injunction against false advertising benefits the public

without causing an undeserved wind fall fo r t he plaintiff. S ee Am. Council of Certified Podiatric

Physicians & Surgeons v. Am. Bd. of Podiatric Surgery, Inc.

, 185 F.3d 606, 618 (6 th Cir. 1999). This

confuses the issue under the test for prudential standing, which “is to determine whether the plaint iff

is ‘a proper party to invoke judicial resolution of the dispute and the exercise of the court’s remedial

powers.’” Conte

, 165 F.3d at 225 (emphasis added) (quoting Bender v. Williamsport Area Sch. Dist.

,15

475 U.S. 534, 546 n.8 (1986)). In other words, our focus in resolving Lanham Act standing issues

is not whether the uncertain calculation of damages precludes injunctive relief at all, but whether this

particular plaintiff should be allowed vindicate the public interest. S ee Joint Stock

, 266 F.3d at 184

(holding that plainti ffs may not circumvent the requirements for prudential standing by relying on

forms of relief that benefit t he public at large). Accepting Dr. Ford’s argument would essentially

render this factor meaningless in every case where injunctive relief is sought, as any plaintiff would

be able to cast himself as the “vicarious avenger of the general public’s right to be protected against

potentially false advertisements.” Id. (internal quotations omitted).

Perhaps the strongest reason for denying prudential standing is the fift h factor’s concern about “the

risk of duplicative damages or the complexity of apportioning damages.” I d. Dr. Ford is but one of

innumerable physicians who have contracted with t he HMOs, and who therefore have probably

lowered fees as a result of the HMOs’ bargaining power. If the HMOs’ ads were determined to be

false, all of these physicians would have damages claims. Moreover, as Dr. Ford concedes, t he

calculation of these damages would be extremely complex. Finally, doctors are not even the most

direct vict ims of any allegedly false ads, which harm rival health plans more than contracting

physicians. In light of the complex and duplicative nature of such damages awards, the fifth factor

militates strongly against prudential standing.

To summarize, Dr. Ford has suffered a comme rcial harm, but his injury is simply not the

competitive harm that is protected by the Lanham Act. Of the five factors that are relevant to this

analysis, none counsels in favor of prudential standing. Furthermore, there is no t hing unfair or

premature about resolving this case on prudential standing grounds and applying the more ri gorous

summary judgment standard, as Dr. Ford was fully aware of his burden to adduce evidence in support16

of each element of prudential standing. Because I cannot say that he had a sufficient opportunity to

address the majority’s concerns about constitutional standing, I respectfully concur in the result only.17