FILED

United States Court of Appeals

Tenth Circuit

February 9, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THE INTERMOUNTAIN STROKE

CENTER, INC., a Utah corporation;

NANCY FUTRELL, an individual, 

Plaintiffs - Appellants,

v.

INTERMOUNTAIN HEALTH CARE,

INC., a Utah non-profit corporation;

IHC HEALTH SERVICES, INC., a

Utah non-profit corporation;

SELECTHEALTH, INC., a Utah

non-profit corporation,

Defendants - Appellees.

No. 14-4045

(D.C. No. 2:13-CV-00909-DN)

(D. Utah)

ORDER AND JUDGMENT*

Before TYMKOVICH, Chief Judge, and HOLMES, and BACHARACH, Circuit

Judges.

Plaintiffs-Appellants Dr. Nancy Futrell and the Intermountain Stroke

Center (“Stroke Center”) filed suit against Defendants-Appellees Intermountain

Health Care, IHC Health Services, and SelectHealth, bringing various claims

* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 1 
under Utah law and the Lanham Act, 15 U.S.C. §§ 1051–1141. The district court

dismissed the Lanham Act claim and remanded the non-federal claims to Utah

state court. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. 

I

A

Intermountain Health Care is a large network of hospitals, clinics, surgery

centers, and physicians. Within its ambit are wholly-owned subsidiaries IHC

Health Services, which operates medical facilities throughout the State of Utah,

and SelectHealth, a health-maintenance organization. All of these entities

(hereinafter collectively “Intermountain”) are Utah not-for-profit corporations.

Before closing its doors in 2013, the Stroke Center was a Utah corporation

principally conducting business in Salt Lake City. It provided “same-day and

next-day treatment” to patients presenting with strokes and transient ischemic

attacks (“TIAs”).1

 Aplt. App. at 260 (First Am. Compl., filed Oct. 7, 2013). One

of its staff members was Dr. Nancy Futrell, a Utah-licensed neurologist who holds

herself out as a “speciali[st] in the treatment of stroke.” Id. at 251. According to

Dr. Futrell, the Stroke Center was “the only outpatient, non-emergency facility in

1 Ischemia is a restriction of blood flow (and thus oxygen) to the brain. 

Any stroke is considered an ischemic attack; a transient ischemic attack, or TIA,

is simply a stroke of short duration and is “often labeled ‘mini-stroke.’” Aplt.

Opening Br. at 7. “TIAs are often a warning sign for future strokes.” 

MedlinePlus, Transient Ischemic Attack, U.S. Nat’l Library of Med.,

http://www.nlm.nih.gov/medlineplus/transientischemicattack.html (last updated

Jan. 15, 2016).

2

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 2 
Utah to provide non-emergency, same-day and next-day stroke and TIA treatment

by . . . . a stroke specialist” and the “only” facility in the state that offered these

services at rates significantly lower than prevailing hospital rates. Id. at 260.

On March 24, 2013, the Stroke Center discontinued operations. Believing

that Intermountain’s conduct was the impetus for the Stroke Center’s cessation of

business, Dr. Futrell and the Stroke Center (hereinafter collectively “Plaintiffs”)

filed a lawsuit against Intermountain in Utah state court on June 4, 2013. 

Plaintiffs originally alleged violations of Utah’s Truth in Advertising Act

(“UTIAA”) and other state-law claims sounding in tort. After Plaintiffs added a

Lanham Act claim to their complaint, Intermountain removed the action to the

United States District Court for the District of Utah. 

The amended complaint alleges that Intermountain misled prospective

consumers regarding the nature and quality of its stroke and TIA services. 

Plaintiffs’ claims focus on certain statements included in Intermountain’s

advertising and marketing materials: specifically, (1) general representations

made “[t]hrough [Intermountain’s] marketing efforts” that Intermountain follows

“best medical practices,” provides the “best possible care,” and has a mission of

“[p]roviding excellent care of the highest quality at an affordable cost,” id. at

269–70; and (2) three more specific representations made through Intermountain’s

(a) website and “Annual Stroke Report,” (b) institutional code of ethics (“Ethics

Code”), and (c) “Life After a Stroke or TIA” pamphlet (“Stroke Pamphlet”), id. at

3

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 3 
272–80. According to Plaintiffs, the general statements are literally false, and the

specific statements could mislead consumers about the number of Intermountain

physicians specializing in stroke and TIA treatment, the efforts made by

Intermountain to avoid prohibited sources of revenue, and the proper scope of

post-stroke or post-TIA care. 

Intermountain moved to dismiss Plaintiffs’ complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6). With respect to the Lanham Act claim—the

only claim that the district court ultimately addressed on the

merits—Intermountain asserted that all of the statements attributed to it by

Plaintiffs were not actionable because they were “mere statements of opinion or

scientific disagreement,” or because they “[we]re indisputably not ‘false.’” Id. at

858 (Mot. to Dismiss, filed Oct. 9, 2013). Additionally, Intermountain urged the

district court to dismiss the Lanham Act claim based on its view that Plaintiffs

had failed to allege any competitive injury caused by Intermountain’s conduct.

B

On March 31, 2014, the district court issued a memorandum decision and

order granting Intermountain’s motion to dismiss. The district court’s principal

conclusion was that Plaintiffs had failed to state a plausible claim for relief under

the Lanham Act. In so ruling, the court observed that “[m]any of

[Intermountain’s] statements are not assertions of fact for which [Intermountain]

may be held liable under the Lanham Act. With respect to the remaining

4

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 4 
statements, Plaintiffs have . . . not adequately alleged that the statements are

misleading . . . .” Id. at 15 (Mem. Decision & Order, filed Mar. 31, 2014).

More specifically, the district court rejected Plaintiffs’ contention that

Intermountain’s general marketing statements—notably, those pertaining to “best

medical practices”—could serve as the predicate for a Lanham Act claim. Id. It

determined that these statements were “not statements of fact” and likened them

to “[e]xpressions of sales ‘puffery.’” Id. at 16. In fact, the court expressly

classified these marketing claims as “paradigmatic puffery,” id. at 20, and stated

that its view of them would not change “even if [the statements were] linked to a

particular product or service and even if false,” id. at 18. At bottom, the court

was convinced that no reasonable consumer would have relied upon

Intermountain’s general statements when choosing a stroke or TIA provider. 

The court then assessed the three sets of specific statements and deemed

them inadequate for purposes of a Lanham Act claim. It found the challenged

statements concerning the number of stroke specialists “true and not misleading,”

id. at 21, because Intermountain had truthfully represented how many of its

physicians were competent in stroke and TIA treatment and explained that

“subspecialists [were] available to assist stroke patients with on-going medical

needs,” id. at 22. Similarly, the court found “true and not misleading”

Intermountain’s Ethics Code standard pertaining to compliance with federal

physician-referral laws. Id. at 23. It further determined that Plaintiffs had not

5

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 5 
“allege[d] a competitive injury associated with th[e] statements” in the Ethics

Code. Id. at 27. Lastly, the district court concluded that the statements at issue

in the Stroke Pamphlet—which very generally explained stroke and post-stroke

concerns—were “not misleading as to the nature, characteristics, or qualities of

[Intermountain’s] services.” Id. Indeed, the court opined, the Stroke Pamphlet

could not reasonably be construed to include “any claims at all about

[Intermountain’s] stroke or TIA care.” Id. at 29. The court therefore ruled that

Plaintiffs had not stated an actionable Lanham Act claim.

After disposing of Plaintiffs’ single federal claim, the district court

explained that “[j]urisdiction over Plaintiffs’ state law claims [had been] proper

only because they [were] appropriately related to Plaintiffs’ Lanham Act claim,”

and that state court was the proper place to litigate Plaintiffs’ UTIAA and Utah

tort-law claims. Id. Accordingly, the court remanded these claims to state court

and entered final judgment reflecting a with-prejudice dismissal of Plaintiffs’

Lanham Act claim. 

Plaintiffs have timely appealed from the district court’s dismissal of their

Lanham Act claim.2

2 On appeal, Plaintiffs do not mount a separate challenge to the district

court’s decision to remand the remaining state-law claims; therefore, we have no

need to discuss the matter further. 

6

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 6 
II

By way of overview, we affirm the district court’s with-prejudice dismissal

of Plaintiffs’ Lanham Act claim against Intermountain. We rest this affirmance

on our determination that the district court correctly decided that Intermountain

made no materially false or misleading representations of fact in advertising its

stroke and TIA services—a conclusion that ineluctably sounds the death knell for

Plaintiffs’ Lanham Act claim.

A

We begin by providing an overview of the relevant legal terrain—i.e., the

basic principles governing Rule 12(b)(6) motions, as well as the specific

principles pertaining to the Lanham Act. 

1

a

Our standard of review in the Rule 12(b)(6) context is familiar: “[w]e

review de novo a district court’s dismissal of a complaint . . . , applying the same

legal standard as the district court.” Kerber v. Qwest Grp. Life Ins. Plan, 647

F.3d 950, 959 (10th Cir. 2011); accord Rosenfield v. HSBC Bank, USA, 681 F.3d

1172, 1178 (10th Cir. 2012); Khalik v. United Air Lines, 671 F.3d 1188, 1190

(10th Cir. 2012). “We accept as true ‘all well-pleaded factual allegations in a

complaint and view these allegations in the light most favorable to the plaintiff.’” 

Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (quoting Kerber,

7

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 7 
647 F.3d at 959); accord Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.

2009). To withstand dismissal at this stage in the litigation, the complaint must

include “enough facts to state a claim to relief that is plausible on its face.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Donner v. Nicklaus,

778 F.3d 857, 864 (10th Cir. 2015).

As the Supreme Court has explained, “[a] claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); accord Al-Owhali v. Holder, 687 F.3d 1236,

1239–40 (10th Cir. 2012). Courts “are not bound to accept as true a legal

conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555); accord Wood v. Moss, --- U.S. ----, 134 S. Ct. 2056,

2065 n.5 (2014). Ultimately, in order to satisfy this facial-plausibility standard,

“a complaint ‘requires more than labels and conclusions’ because a ‘formulaic

recitation of the elements of a cause of action will not do.’” McDonald v. Wise,

769 F.3d 1202, 1219 (10th Cir. 2014) (quoting Twombly, 550 U.S. at 555).

b

Before proceeding to discuss the substantive standards of the Lanham Act,

we address Plaintiffs’ argument that the district court committed error by

“alter[ing] the federal pleading standard by making it more stringent for

plaintiffs.” Aplt. Opening Br. at 34. Plaintiffs contend in conclusory fashion that

8

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 8 
“the District Court acted as a ‘savvy judge that actual proof of those facts is

improbable.’” Id. at 37. This language emanates from the Supreme Court’s

Twombly decision. See Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint

may proceed even if it strikes a savvy judge that actual proof of those facts is

improbable[] . . . .”). 

Considering Plaintiffs’ allusion to Twombly, we understand their position to

be that the district court erred by dismissing their action on the ground that they

failed to demonstrate that their claims were “likely to be true.” Aplt. Opening Br.

at 37 (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)). 

Because we have held that “‘plausible’ cannot mean ‘likely to be true,’” Robbins,

519 F.3d at 1247, if the district court had in fact resolved Plaintiffs’ claims under

a likely-to-be-true standard, then it would have legally erred. However, that

cannot be said of the court’s reasoning. 

We find it beyond peradventure that the district court carefully and

properly assessed the sufficiency of the complaint under the well-settled facialplausibility standard. The court did not err by saying that “[i]f the factual

allegations of the complaint are accepted as true, it must be plausible, not merely

possible, that the plaintiff is entitled to the relief requested.” Aplt. App. at 15. 

Indeed, the Supreme Court has clearly signaled to lower courts that they should

draw a “line between possibility and plausibility” in assessing the legal

sufficiency of complaints. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at

9

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 9 
557). In this regard, Iqbal instructs that “[t]he plausibility standard is not akin to

a ‘probability requirement,’ but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” 556 U.S. at 678 (emphasis added). And Iqbal

further explicates that a complaint cannot pass muster under Rule 12(b)(6) if it

does not allow the district court “to infer more than the mere possibility of

misconduct.” Id. at 679. We have remained faithful to this articulation of the

proper motion-to-dismiss standard, see Thomas v. Kaven, 765 F.3d 1183, 1190–91

(10th Cir. 2014) (looking for “more than a sheer possibility that a defendant has

acted unlawfully” (quoting Iqbal, 556 U.S. at 678)); accord Brown v. Montoya,

662 F.3d 1152, 1163 (10th Cir. 2011), and we are confident that the district court

properly heeded that well-settled and binding standard here.

2

“The Lanham Act creates a cause of action for unfair competition through

misleading advertising or labeling.” POM Wonderful LLC v. Coca-Cola Co., ---

 U.S. ----, 134 S. Ct. 2228, 2234 (2014); see World Wide Ass’n of Specialty

Programs v. Pure, Inc., 450 F.3d 1132, 1140 (10th Cir. 2006) (“[U]nder the

Lanham Act, it was required to demonstrate . . . ‘that the defendant made material

false or misleading representations of fact in connection with the commercial

advertising or promotion of its product[] . . . .’” (quoting Sally Beauty Co., Inc.

v. BeautyCo, Inc., 304 F.3d 964, 980 (10th Cir. 2002))). Section 43(a) of the

statute, 15 U.S.C. § 1125(a), “creates two distinct bases of liability: false

10

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 10 
association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark

Int’l, Inc. v. Static Control Components, Inc., --- U.S. ----, 134 S. Ct. 1377, 1384

(2014); see Cottrell, Ltd. v. Biotrol Int’l, Inc., 191 F.3d 1248, 1252 n.3 (10th Cir.

1999) (“The Act ‘principally provides for two distinct causes of action: false

designation of origin or source, known as “product infringement,” and false

description or representation, known as “false advertising.”’” (quoting Res.

Developers, Inc. v. Statue of Liberty–Ellis Island Found., Inc., 926 F.2d 134, 139

(2d Cir. 1991))).

Only the second basis for imposing Lanham Act liability—false

advertising—has been argued in this case. Relevant to our assessment of the

false-advertising theory, the statute provides that liability in a civil action

attaches to:

Any person who, on or in connection with any goods or

services[] . . . uses in commerce any . . . false or misleading

description of fact, or false or misleading representation of fact,

which—

. . .

(B) in commercial advertising or promotion, misrepresents the

nature, characteristics, qualities, or geographic origin of his or

her or another person’s goods, services, or commercial

activities[] . . . .

15 U.S.C. § 1125(a)(1). A Lanham Act claim may be brought “by any person

who believes that he or she is or is likely to be damaged by such act.” Id.

Nonetheless, “[t]hough in the end consumers also benefit from the Act’s proper

enforcement, the cause of action is for competitors, not consumers.” POM

11

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 11 
Wonderful, 134 S. Ct. at 2234; see Lexmark, 134 S. Ct. at 1390 (“A consumer

who is hoodwinked into purchasing a disappointing product may well have an

injury-in-fact cognizable under Article III, but he cannot invoke the protection of

the Lanham Act—a conclusion reached by every Circuit to consider the

question.”).

Thus, to state a false-advertising claim under § 43(a) of the Lanham Act, a

plaintiff must plausibly allege:

(1) that [the] defendant made material false or misleading

representations of fact in connection with the commercial

advertising or promotion of its product; (2) in commerce; (3) that

are either likely to cause confusion or mistake as to (a) the

origin, association or approval of the product with or by another,

or (b) the characteristics of the goods or services; and (4) injure

the plaintiff.

Cottrell, 191 F.3d at 1252 (citations omitted); accord La Resolana Architects, PA

v. Reno, Inc., 555 F.3d 1171, 1181 (10th Cir. 2009). Each of the foregoing

elements must be demonstrated by a preponderance of the evidence. See World

Wide Ass’n of Specialty Programs, 450 F.3d at 1140 (“[I]n order for World Wide

to succeed on [a] claim under the Lanham Act, it was required to demonstrate the

. . . elements by a preponderance of the evidence[] . . . .”). 

Delving into the threshold component of a Lanham Act claim (i.e.,

advertising representations attributed to the defendant), panels of this court have

explained that “‘Section 43(a) . . . encompasses more than literal falsehoods,’

because otherwise, ‘clever use of innuendo, indirect intimations, and ambiguous

12

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 12 
suggestions could shield the advertisement from scrutiny precisely when

protection against such sophisticated deception is most needed.’” Cottrell, 191

F.3d at 1252 (quoting Am. Home Prods. Corp. v. Johnson & Johnson, 577 F.2d

160, 165 (2d Cir. 1978)); see also Zoller Labs., LLC v. NBTY, Inc., 111 F. App’x

978, 982 (10th Cir. 2004) (unpublished) (“To demonstrate falsity within the

meaning of the Lanham Act, a plaintiff may show that the statement was literally

false, either on its face or by necessary implication, or that the statement was

literally true but likely to mislead or confuse consumers.” (emphases added)

(quoting Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.

1997))). More specifically, the Lanham Act contemplates two variants of

actionable advertising representations: (1) those that are literally false, and (2)

those that, while literally true, are likely to mislead and confuse consumers. See

La Resolana Architects, PA, 555 F.3d at 1181–82 (holding there was “no basis”

for a Lanham Act claim, given the district court’s factual findings that “neither

[of the defendants] made any false or misleading oral or written statements or

representations”); see also Hutchinson v. Pfeil, 211 F.3d 515, 522 (10th Cir.

2000) (noting the two different categories and collecting cases).

B

Having set out the essential legal principles underlying this appeal, we

proceed to the merits of Plaintiffs’ Lanham Act claim. As noted, the district court

deemed this claim legally infirm due to Plaintiffs’ failure to plausibly allege that

13

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 13 
Intermountain made any materially false or misleading representations concerning

the quality of its stroke and TIA services. We agree. To be more precise, we

agree that: (1) Intermountain’s general marketing claims are not particular enough

to constitute literally false representations, and (2) Intermountain’s more specific

statements are true and not misleading.3

 This failing by Plaintiffs obviates the

need for us to determine whether Plaintiffs properly pleaded a cognizable Lanham

Act injury, so we decline to address the issue. Accordingly, for the reasons that

follow, we affirm the district court’s decision to dismiss Plaintiffs’ Lanham Act

claim against Intermountain with prejudice.

1

First, we address Plaintiffs’ endeavor to forge a Lanham Act claim by

invoking Intermountain’s general advertising and marketing representations

concerning quality of care. At the motion-to-dismiss stage, the district court

determined that none of the vague declarations that Plaintiffs identified were

“statements of fact for which [Intermountain] c[ould] be held liable under the

3 In the analysis that follows, we employ the district court’s helpful

categorization of the challenged statements—viz.: (1) general marketing

statements; and (2) specific statements concerning (a) the number of stroke and

TIA specialists at Intermountain; (b) Intermountain’s Ethics Code; and (c)

Intermountain’s Stroke Pamphlet. Intermountain contends that Plaintiffs have not

challenged the district court’s rulings concerning the latter (i.e., the specific

statements) on appeal. Plaintiffs, however, argue to the contrary in their Reply

Brief. Though Plaintiffs’ briefing regarding the three sets of specific statements

is far from artful, we need not detain ourselves with the question of waiver vel

non; even if Plaintiffs have not waived their challenges relative to the specific

statements, the challenges fail on the merits.

14

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 14 
Lanham Act”; to the contrary, they were expressions of sales “puffery.” Aplt.

App. at 16. We, too, conclude that the marketing representations at issue are

merely expressions of Intermountain’s opinion. This leads inexorably to the

conclusion that, as a matter of law, these general statements cannot be “material

false or misleading representations of fact.” Cottrell, 191 F.3d at 1252 (emphasis

added). As such, they cannot form the basis of a false-advertising Lanham Act

claim.

Intermountain’s public-relations efforts involved a publicly accessible,

comprehensive website. On the website’s home page, Intermountain held itself

out as “an internationally recognized, nonprofit system of 22 hospitals, a Medical

Group with more than 185 physician clinics, and an affiliated health insurance

company.” Aplt. App. at 308 (Website Home Page, dated Sept. 5, 2013). The

home page indicated that Intermountain “offer[s] a full range of services” and that

“[p]roviding excellent care of the highest quality at an affordable cost is at the

heart of [its] mission.” Id. Similarly, the website section focusing on

Intermountain’s clinics declared, “Our network of experienced doctors, surgeons

and caregivers strive[s] to provide clinically excellent healthcare through a wide

range of services in a setting where patient needs come first.” Id. at 311 (Clinics

Subpage, dated Sept. 5, 2013).

Elsewhere on its website—on a subpage denominated “For Intermountain

Healthcare Trustees”—Intermountain described its business model as “[a]n

15

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 15 
[i]ntegrated [h]ealthcare [s]ystem”; by virtue of such amalgamation, it was said to

offer its clientele “[c]linical quality,” “[s]ervice quality,” “[l]ower costs,”

“[p]revention,” and “a relatively seamless continuum of care.” Id. at 313 (Trustee

Subpage, dated Sept. 5, 2013). There, Intermountain claimed that being a

vertically-integrated network enabled it to “contribute in essential ways to the

sharing of best medical practices, and raising the standards of clinical

excellence.” Id. It further asserted that, “[b]y identifying and implementing best

medical practices[,] . . . Intermountain not only provides quality healthcare; it

often achieves lasting improvement in cost structures.” Id.

Plaintiffs contend that all of the foregoing representations—that is,

Intermountain’s “claims to identify and implement best medical practices at the

lowest available cost”—are “literally false statement[s]” upon which a legitimate

Lanham Act false-advertising claim may be predicated. Aplt. Opening Br. at

58–59; see id. at 31 (alluding to Intermountain’s purported “literally false general

advertisements of best medical practices, exceeding the standard of care,

delivering the best possible care and . . . delivering high quality care in all

services at affordable costs” (footnotes omitted)). We reject Plaintiffs’ position. 

We conclude that Intermountain’s general quality-of-care declarations are

emblematic of sales puffery; for that reason, we cannot classify these declarations

as statements of fact, much less literally false ones.

16

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 16 
a

Intermountain’s general advertising statements fall short of our Lanham Act

standard because they constitute sales puffery and, as such, cannot be deemed

statements of fact, let alone literally false ones. 

i

In a well-known Lanham Act case, the Fifth Circuit has helpfully laid the

groundwork for a discussion of puffery:

Essential to any claim under section 43(a) of the Lanham Act is

a determination of whether the challenged statement is one of

fact—actionable under section 43(a)—or one of general

opinion—not actionable under section 43(a). Bald assertions of

superiority or general statements of opinion cannot form the basis

of Lanham Act liability.

Pizza Hut, Inc. v. Papa John’s Int’l, Inc., 227 F.3d 489, 495–96 (5th Cir. 2000). 

“Puffery” is a term of art “used to characterize those vague generalities that

no reasonable person would rely on as assertions of particular facts.” Alpine

Bank v. Hubbell, 555 F.3d 1097, 1106 (10th Cir. 2009); see Puffing, Black’s Law

Dictionary (10th ed. 2014) (noting that the term, or its alternative “puffery,”

means “[t]he expression of an exaggerated opinion—as opposed to a factual

misrepresentation—with the intent to sell a good or service” and stating that such

statements “remain[ ] in the realm of opinion or belief” (second emphasis added)

(quoting Rollin M. Perkins & Ronald N. Boyce, Criminal Law 369 (3d ed.

1982))). 

17

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 17 
As the Third Circuit has explained (in a Lanham Act lawsuit), a statement

of puffery “is considered to be offered and understood as an expression of the

seller’s opinion only, which is to be discounted as such by the buyer.” Castrol

Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993) (quoting W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 109, at 756–57 (5th ed. 1984)). 

The hallmarks of puffery are “broad, vague, and commendatory language,” id., as

well as “[s]ubjective claims . . . which cannot be proven either true or false,”

Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 144, 159 (2d Cir. 2007)

(alteration in original) (quoting Lipton v. Nature Co., 71 F.3d 464, 474 (2d Cir.

1995)).

We recognize that the Tenth Circuit has not yet defined the precise

contours of puffery in a false-advertising Lanham Act case. However, our

caselaw involving puffery in other causes of action makes clear to us that

Intermountain’s general advertising claims of best practices and high-quality

customer service fit the bill (i.e., constitute puffery). See, e.g., MHC Mut.

Conversion Fund, L.P. v. Sandler O’Neill & Partners, L.P., 761 F.3d 1109, 1114

(10th Cir. 2014) (accepting securities treatise’s statement that puffing is not

actionable as an “untrue statement of a material fact” under 15 U.S.C. § 77k); In

re Level 3 Commc’ns, Inc. Sec. Litig., 667 F.3d 1331, 1340 (10th Cir. 2012)

(classifying as puffery “vague (if not meaningless) management-speak,” including

the defendant’s statement that it was “focused on insuring . . . the excellent

18

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 18 
reputation that [it] ha[d] earned over the years for customer service,” and noting

that “broad claims . . . regarding . . . the customer experience overall are likewise

non-actionable” under 15 U.S.C. § 78j(b) (quoting the record)); Grossman v.

Novell, Inc., 120 F.3d 1112, 1121–22 (10th Cir. 1997) (holding that a company’s

general claims that it offered “a compelling set of opportunities” and had

“experienced substantial success” were “soft, puffing statements, incapable of

objective verification” for purposes of 15 U.S.C. § 78j(b)). In other words, our

caselaw counsels in favor of blessing the district court’s conclusion that

Intermountain’s general statements at issue here equate to puffery—which makes

them legally non-objectionable. See 1A Louis Altman & Malla Pollack,

Callmann on Unfair Competition, Trademarks and Monopolies § 5:26, at 5-155

(4th ed. 2007) (“The law of unfair competition does not forbid [sales] puffing.”).

Our decision in Alpine Bank helpfully reinforces the conclusion that

Intermountain’s general advertising declarations constitute puffery. In Alpine

Bank, the cause of action was negligent misrepresentation under Colorado law. 

Succeeding on that claim would have required the plaintiffs to establish, inter

alia, justifiable reliance on false business information supplied by their bank, the

defendant. See Campbell v. Summit Plaza Assocs., 192 P.3d 465, 477 (Colo. App.

2008) (“To prevail on a claim for negligent misrepresentation . . . , [the plaintiff]

was required to prove that . . . [the defendant] supplied false information in a

business transaction[] . . . .”). We rejected the plaintiffs’ argument that the bank

19

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 19 
had furnished actionable false information through the following advertising

slogan: “[Y]ou’re about to buy a new home, or build one. You concentrate on

your dream. We’ll take care of everything else.” Alpine Bank, 555 F.3d at 1106. 

Critically, we reasoned that “this slogan cannot trigger liability because it

amounts to mere puffery.” Id.

Analyzing the Alpine Bank plaintiffs’ claims within the construct of

puffery, we intimated that the concept of sales puffery “has not changed that

much in the last century.” Id. We alluded to the importance of context in

determining whether a transactional representation constitutes puffery:

What is said to a particular person may take on meaning that

would not be present if made to a large group. Thus, mass

advertising expressed in vague terms . . . is not relied on by

rational adults. For example, the slogan “You’re in good hands

with Allstate” was held to be puffery . . . . One reason such

statements are not to be relied on is that they could not possibly

mean everything that might be implied.

Id. at 1107 (emphasis added) (citation omitted). Then, placing the bank’s

averments in proper context, we found it patent that a prospective homeowner

seeking a loan from his bank would not reasonably expect the bank to shepherd

him through the entire process of “build[ing] the home, choos[ing] a site,

select[ing] the builder, [and] supervis[ing] construction.” Id. We thus held that

“[a] reasonable person desiring [a defendant] to perform in a particular way would

need a more specific assurance” than a simple claim of superior quality, such as

the one presented in the bank’s advertising materials. Id. (emphasis added). 

20

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 20 
We discern no cogent reason to disregard these broadly applicable lessons

from Alpine Bank in the context of this case—i.e., a false-advertising Lanham Act

claim against a defendant hospital network. Healthcare is fraught with

unpredictability, and a healthcare-delivery system hardly strikes us as the species

of business from which a particular objectively-superior result (e.g., with respect

to certain stroke and TIA treatments) could reasonably be expected by a consumer

without at least some modicum of specificity being provided by the business in its

representations (or, as Alpine Bank put it, in its “assurance”). Accordingly,

though Alpine Bank did not resolve a Lanham Act claim, we consider its guidance

in reaching our conclusion that Intermountain, through its general marketing

declarations, did not “ma[k]e material false or misleading representations of

fact . . . that [we]re . . . likely to cause confusion or mistake as to . . . the

characteristics of the goods or services.” Cottrell, 191 F.3d at 1252 (citations

omitted).

In any event, even without the benefit of Alpine Bank, we would conclude

that advertising declarations about “best medical practices, exceeding the standard

of care, delivering the best possible care and . . . delivering high quality care in

all services,” Aplt. Opening Br. at 31 (footnotes omitted)—all of which speak

generically to the caliber of the Intermountain brand—are classic puffery. Our

sibling circuits have regularly reached similar conclusions when reviewing such

statements—that is, they have concluded that analogous statements are incapable

21

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 21 
of objective verification and constitute puffery.4

 The Fifth Circuit’s reasoning in

4 We have discovered several persuasive decisions from our sister

circuits in our study of puffery. Concluding, as we do, that Intermountain’s

general advertising statements (concerning best practices and brand quality)

amount to puffery places us in accord with these courts. See, e.g., Am. Italian

Pasta Co. v. New World Pasta Co., 371 F.3d 387, 391 (8th Cir. 2004)

(“‘America’s Favorite Pasta’ is not a specific, measurable claim and cannot be

reasonably interpreted as an objective fact. . . . ‘Well liked’ and ‘admired’ do not

convey a quantifiable threshold in sheer number, percentage, or place in a

series.”); Corley v. Rosewood Care Ctr., Inc., 388 F.3d 990, 1008 (7th Cir. 2004)

(“The phrase ‘high quality’ is highly subjective. . . . it comes under the category

of sales puffery . . . .” (citation omitted)); Pizza Hut, 227 F.3d at 498 (“[I]t

appears indisputable that Papa John’s assertion ‘Better Pizza.’ is non-actionable

puffery.”); Mead Johnson & Co. v. Abbott Labs., 209 F.3d 1032, 1034 (7th Cir.

2000) (per curiam) (opining that a reasonable consumer would not interpret the

phrase “1st Choice of Doctors” as a “claim [that] either was false or implied a

falsehood”); In re The Bos. Beer Co. Ltd. P’ship, 198 F.3d 1370, 1373–74 (Fed.

Cir. 1999) (agreeing that “‘The Best Beer in America’ is a generally laudatory

phrase” that is “nothing more than a claim of superiority,” and equating such

“[s]elf-laudatory” statements to “puffing”); San Leandro Emergency Med. Grp.

Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 811 (2d Cir. 1996)

(viewing statements of optimism about earnings such as “should deliver income

growth consistent with its historically superior performance” as mere “puffery”

because they “lack the sort of definitive positive projections that might require

later correction” (quoting In re Time Warner Inc. Sec. Litig., 9 F.3d 259, 267 (2d

Cir. 1993))); Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911

F.2d 242, 246 (9th Cir. 1990) (per curiam) (“[A]ny implication that can be drawn

from [the defendant’s] advertisement regarding [its] lower costs and superiority

over [competitors] constitutes puffery and is not actionable as false advertising

under Section 43(a) of the Lanham Act.”); U.S. Healthcare, Inc. v. Blue Cross of

Greater Phila., 898 F.2d 914, 926 (3d Cir. 1990) (characterizing advertisements

with the slogan “Better than HMO. So good, it’s Blue Cross and Blue Shield.” as

“the most innocuous kind of ‘puffing,’ common to advertising and presenting no

danger of misleading the consuming public,” and “[c]onsequently, . . . find[ing]

that no cause of action lies”); cf. Pennzoil Co., 987 F.2d at 946 (“Pennzoil’s claim

of engine protection . . . . is both specific and measurable by comparative

research. In fact, Pennzoil seeks to substantiate its claims of superiority by

reference to testing. This . . . defeats Pennzoil’s assertion that its claims

constitute only puffery.”).

22

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 22 
Pizza Hut, 227 F.3d 489, is especially helpful in that regard. 

Pizza Hut’s false-advertising Lanham Act dispute centered around the

slogan of Papa John’s Pizza: “Better Ingredients. Better Pizza.” 227 F.3d at 491. 

After a jury found that this catchphrase, standing alone, was a false statement of

fact, the district court enjoined its use. But the Fifth Circuit disagreed,

concluding that both sentences in the slogan fit the definition of puffery by

“epitomiz[ing] the exaggerated advertising, blustering, and boasting by a

manufacturer upon which no consumer would reasonably rely.” Id. at 498. The

court expressly referenced leading unfair-competition and tort-law treatises,

noting that these well-regarded authorities had defined puffery in the foregoing

manner and had persuaded the court that Papa John’s vague slogan “c[ould] be

understood as nothing more than a mere expression of opinion.” Id. at 497. More

specifically, the court reasoned, an adjective like “better” could not be factual in

nature because it was “unquantifiable” and thus, “without further description,

[wa]s wholly a matter of individual taste or preference not subject to scientific

quantification. . . . [and consequently] not actionable under the Lanham Act.” Id.

at 499 (citation omitted). 

Drawing guidance from the Fifth Circuit’s decision in Pizza Hut, we

consider Intermountain’s general declarations concerning best practices and high23

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 23 
quality care to be merely sales puffery that cannot form the basis of a Lanham Act

claim.5

5 Indeed, we have serious doubts about whether Intermountain’s

general declarations of this sort (e.g., promoting its adherence to “best medical

practices”) could be shown to be factually false in this specific context. Neither

the plain terms of these declarations nor the necessary implications from the

terms evince a specific nexus to Intermountain’s stroke and TIA services. 

Plaintiffs have pleaded no facts to the contrary; instead, they have relied on

conclusory averments, and that is not enough. See, e.g., Aplt. App. at 271

(“While its institutional ad campaign is focused on the Intermountain Healthcare

brand and not on specific services or offerings, such as post-stroke or TIA care[]

. . . . consumers will take Intermountain Healthcare’s broad message and apply it

to specific products and services Intermountain Healthcare offers . . . .” 

(emphasis added)). Therefore, even if Intermountain has violated some

particularized medical standard of care associated with stroke and TIA treatment,

as Plaintiffs allege, that would not necessarily mean that its general

representations of quality of care are factually false. See, e.g., Euro-Pro

Operating LLC v. TTI Floor Care N. Am., No. 12-10568-DJC, 2012 WL 2865793,

at *15 (D. Mass. July 11, 2012) (noting that the challenged advertisement “does

not explicitly state that it is being conducted pursuant to any specific industry

standard . . . , so the [product] demonstration’s alleged violation of industry

standards does not by itself provide the basis for a literal falsity claim”). In other

words, the ostensible existence of violations of stroke and TIA standards of care

would not necessarily indicate that, in the aggregate, Intermountain’s healthcare

services are beneath “best medical practices.” Furthermore, even assuming

arguendo that such general quality-of-care claims implicate standards of care akin

to those in the medical-malpractice arena (as Plaintiffs suggest), the

determination of what those standards are and whether they have been violated

would typically rest on expert-opinion testimony. See, e.g., Jensen v. IHC

Hosps., Inc., 82 P.3d 1076, 1096 (Utah 2003) (“Unless ‘the propriety of the

treatment received is within the common knowledge and experience of the

layman,’ the plaintiff is required to prove the standard of care through an expert

witness who is qualified to testify about the standard.” (quoting Jennings v.

Stoker, 652 P.2d 912, 914 (Utah 1982))); see also Nixdorf v. Hicken, 612 P.2d

348, 351–52 (Utah 1980) (noting that plaintiffs “must establish both the standard

of care required of the defendant . . . in the community and the defendant’s failure

to employ that standard,” and that “[i]n the majority of medical malpractice cases

the plaintiff must introduce expert testimony to establish th[e] standard of care”). 

(continued...)

24

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 24 
ii

Generously construing Plaintiffs’ contrary arguments, we reject them:

First, in attacking the district court’s puffery determination, Plaintiffs

repeatedly refer to puffery as “a defense.” Aplt. Opening Br. at 31. They appear

to contend that it is an affirmative defense that must be shouldered by

Intermountain and, therefore, has no bearing on the question of whether Plaintiffs

have pleaded a plausible Lanham Act claim (that is, successfully averred

sufficient facts to legally support such a claim). Plaintiffs are wrong. We are

aware of no legal authority that validates this proposition, and Plaintiffs offer

none. To be sure, in this connection, they do cite Pizza Hut; however, there is

nothing in that case that even remotely validates their characterization of puffery

as an affirmative defense. Indeed, the Fifth Circuit made clear in Pizza Hut that

the concept of puffery pertains to whether the statements that plaintiffs identify

are actually actionable. See Pizza Hut, 227 F.3d at 496 (“One form of

non-actionable statements of general opinion under section 43(a) of the Lanham

Act has been referred to as ‘puffery.’”). Accordingly, we reject Plaintiffs’

characterization of puffery as a defense. 

Second, we cannot accept Plaintiffs’ contention that the statements

concerning best practices and high-quality care are not puffery because they are

5

(...continued)

In other words, such determinations would ultimately be based on opinions, not

facts—which are the essential ingredient of any Lanham Act claim. 

25

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 25 
not “forward-looking.” Aplt. Opening Br. at 61. In this regard, Plaintiffs are

seemingly relying on our Grossman decision. See 120 F.3d at 1119. However,

such reliance is misguided. In Grossman, a securities-fraud case, the statements

alleged to be “false and misleading” concerned the defendant’s potential marketshare gain, “compelling” opportunities, “smooth[ ]” mergers, and “accelerating”

product development. Id. at 1116–17. We disposed of the plaintiff’s claims not

only by agreeing with the district court that most of the challenged

representations were “[v]ague, optimistic statements [that] [we]re not actionable

because reasonable investors do not rely on them in making investment

decisions,” but also by affirming, on the alternative ground, that several

statements “were properly dismissed . . . because [the plaintiff] ha[d] not made

sufficient allegations that many of the statements were actually false.” Id. at

1119. In the context of this analysis, we observed that “[s]tatements classified as

‘corporate optimism’ or ‘mere puffing’ are typically forward-looking statements.” 

Id. (emphasis added). But that stray excerpt from Grossman can only be rightly

understood when read in the context of the sentence containing it. 

Specifically, that sentence reads: “Statements classified as ‘corporate

optimism’ or ‘mere puffing’ are typically forward-looking statements, or are

generalized statements of optimism that are not capable of objective verification.” 

Id. (emphasis added). That Grossman “employs disjunctive terminology,” Ellis v.

J.R.’s Country Stores, Inc., 779 F.3d 1184, 1204 (10th Cir. 2015), is significant. 

26

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 26 
We certainly did not hold in Grossman, as Plaintiffs appear to suggest, that only

“forward-looking” statements can be puffery. To the contrary, we immediately

indicated that “vague statements of corporate optimism” also qualify, and we

referenced numerous cases wherein hopeful language—some remarkably similar

to the marketing statements identified in this lawsuit—was deemed to be puffery. 

See Grossman, 120 F.3d at 1119–20 (collecting cases). For this reason, we are

satisfied that Grossman’s “forward-looking” language does not control whether a

statement may be properly considered puffery. Grossman does not alter our view

that Intermountain’s general claims regarding brand quality are classic puffery.

And, third, we reject Plaintiffs’ suggestion that the Supreme Court’s

holding in Lexmark somehow changed the legal framework that the district court

should have applied. Plaintiffs urge, somewhat enigmatically, that: 

[i]ncluding a requirement for a plaintiff to establish that a

literally false advertisement is “likely to cause confusion or

mistake” was rejected in [Lexmark]. . . . If the “likely to cause

confusion or mistake” phrase is not found in Section 43(a)(1)(B)

of the Lanham Act, and is not an element of a false advertising

claim, for the purposes of a puffery defense, what a reasonable

consumer would believe is irrelevant.

Aplt. Opening Br. at 30–31.

We deem this undeveloped argument unpersuasive. The central issue in

Lexmark was standing vel non to assert a Lanham Act claim, not whether the

proposed claim, if entertained at all, should be rebuffed as sales puffery. See

Lexmark, 134 S. Ct. at 1385 (“We granted certiorari to decide ‘the appropriate

27

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 27 
analytical framework for determining a party’s standing to maintain an action for

false advertising under the Lanham Act.’” (quoting Pet. for Cert.)). That is,

Lexmark did not endeavor to craft a rule concerning puffery. Rather, its

holding—“that a plaintiff suing under § 1125(a) ordinarily must show economic

or reputational injury flowing directly from the deception wrought by the

defendant’s advertising[, which] occurs when deception of consumers causes

them to withhold trade from the plaintiff,” id. at 1391—squarely implicates

whether “the plaintiff is [even] entitled to an opportunity to prove” the Lanham

Act claim in the first instance, id. at 1391 n.6. Lexmark’s obvious focus on the

threshold issue of standing, a matter that “must be addressed before proceeding to

the merits,” Carolina Cas. Ins. Co. v. Pinnacol Assurance, 425 F.3d 921, 926

(10th Cir. 2005), belies Plaintiffs’ insistence that Lexmark supports their meritsbased arguments. We consider Lexmark completely inapposite to the question of

whether Intermountain’s general advertising statements can be considered

puffery.

In sum, we agree with the district court’s ruling insofar as the court deemed

Intermountain’s general advertising declarations puffing statements that cannot

give rise to a Lanham Act false-advertising claim.

2

Turning to the three sets of specific averments Plaintiffs challenge, we

likewise conclude that they do not rise to the level of actionable Lanham Act

28

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 28 
conduct. We conclude that each of the three sets of particularized statements fails

to state a Lanham Act false-advertising claim and that they indisputably founder

on the first element of such a claim because they are true and not misleading. 

Stated otherwise, we hold that the statements discussed below are not “false or

misleading” within the meaning of the statute. 15 U.S.C. § 1125(a)(1).

a

First, Plaintiffs assert that Intermountain inappropriately and misleadingly

communicates on its website, and in its Annual Stroke Report, that it employs

more physicians for stroke and TIA care than it actually does. They claim that

these materials contain at least two varieties of actionable Lanham Act

representations: (1) misleading suggestions that Intermountain’s heart and

vascular surgeons specialize in stroke and TIA care, and (2) misleading

suggestions that neurologists at Intermountain’s Outpatient Neuroscience Clinic

are stroke and TIA “subspecialists.” Plaintiffs contend that the website and

Annual Stroke Report deceive consumers about Intermountain’s capacity to

provide care when Intermountain purportedly “does not have the physicians

needed to provide timely treatment for approximately 800 to 900 stroke patients

per year.” Aplt. Opening Br. at 22. We disagree: because these statements are

true and not misleading, as a matter of law, we cannot accept them as the

predicate for a Lanham Act claim.

29

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 29 
According to Plaintiffs, Intermountain’s listing of stroke on its website

“under ‘Heart and Vascular Services.’ . . . is apt to confuse stroke and TIA

patients into believing that cardiologists and other heart specialists specialize in

the treatment of stroke and TIA, which is not accurate.” Id. at 18–19. Plaintiffs

similarly aver that “the ‘Find a Doctor’ link from the [Intermountain] website

. . . lists heart and vascular surgeons . . . as stroke treatment providers,” which “is

calculated to mislead or confuse [Intermountain] stroke and TIA patients into

believing that a wide range of physicians are available to treat them for stroke and

TIA.” Id. at 19–20. Both contentions lack merit.

Having explored Intermountain’s website via the parties’ record

submissions, we strongly doubt that reasonable healthcare consumers would be

deceived in the manner described by Plaintiffs. Plaintiffs’ own evidence supports

our conclusion that any association of stroke and TIA with “heart and vascular”

services is proper. See, e.g., Aplt. App. at 318–19 (medical study discussing

stroke and TIA in the context of various cardiovascular indications). It is

apparent to us that Intermountain’s choice to list stroke under “Heart and

Vascular Services” stems from truth, rather than falsity. Because it is true and

correct to characterize stroke as a cerebrovascular or cardiovascular disorder, it

follows that stroke patients could not have been misled by a suggestion that a

vascular physician might be of assistance. 

30

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 30 
It likewise strikes us as obvious that Intermountain’s website’s “Find a

Doctor” tool contains no misleading information. At all times relevant to this

lawsuit, clicking on the “Find a Doctor” link, which was accessible from

Intermountain’s “Heart and Vascular Services” webpage, would produce a list of

physicians. See id. at 394. Selecting any physician-specific link would bring up

information regarding that physician’s educational background, certifications, and

clinical interests. After perusing the list of physicians presented, we are not

persuaded that it contains any untrue statements when judged in the context of

Plaintiffs’ Lanham Act claim. Notably, none of the “primary specialty” notations

explicitly include a particular physician’s claim of expertise in stroke and TIA

treatment. Therefore, the most that can be said of these online representations is

that they indicate that certain physicians possess the core competencies to treat

cerebrovascular diseases. And that appears to be true.

Importantly, at no point during these proceedings have Plaintiffs explained

how consumers might infer that the physicians identified by Intermountain were

in fact “specialists . . . in the treatment of stroke and TIA.” Aplt. Opening Br. at

19. Perhaps Plaintiffs wish that Intermountain had included some sort of

disclaimer—such as “Dr. X is not a stroke specialist”—but they have never

argued or briefed such a proposition. We suspect that this is so because the

sparse extant caselaw would not support it. Cf., e.g., Alfred Dunhill Ltd. v.

Interstate Cigar Co., 499 F.2d 232, 235, 238 (2d Cir. 1974) (rejecting attempt to

31

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 31 
shoehorn a Lanham Act claim from allegations of selling tobacco “without taking

effective steps to warn their customers that the tobacco had been subjected to

possible water damage”); Wellnx Life Scis. Inc. v. Iovate Health Scis. Research

Inc., 516 F. Supp. 2d 270, 286 (S.D.N.Y. 2007) (noting the unavailability of a

viable action under § 43(a) of the Lanham Act for not disclosing facts). 

In addition, Plaintiffs direct our attention to Intermountain’s Annual Stroke

Report, which states in relevant part: “The Stroke Program also offers resources

for patients with ongoing medical needs after hospitalization. The Outpatient

Neuroscience Clinic[] . . . is home to subspecialists including epileptologists,

general neurologists, physical medicine and rehabilitation physicians, and

neuropsychologists.” Id. at 349 (Annual Stroke Report, dated 2011). Plaintiffs

seemingly take issue with Intermountain’s description of staff neurologists as

“subspecialists,” despite the fact that those physicians held themselves out as

focusing on specified brain disorders. Without more explication from Plaintiffs,

we cannot seriously entertain this argument. In our view, no misleading message

can be gleaned from these statements. A straightforward interpretation of the

foregoing Annual Stroke Report passage is that Intermountain employs staff

physicians whose own subspecialties may be of particular benefit to patients

assessing “ongoing medical needs” after a stroke. Id. That language is certainly

not an explicit or implicit representation that Intermountain’s Outpatient

Neuroscience Clinic is a “resource[ ],” id., solely pertaining to stroke and TIA. 

32

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 32 
At bottom, all of the challenged statements regarding Intermountain’s cadre

of physicians contain true information that is not misleading. For that reason, the

specific statements are not actionable for purposes of a Lanham Act claim.

b

Plaintiffs also insist that Intermountain falsely claims in its Ethics Code to

“carefully review financial relationships with physicians and other Health Care

Practitioners for compliance with the anti-kickback and Stark laws.” Aplt. App.

at 888. In this regard, Plaintiffs note that Intermountain reached a settlement with

regulators regarding certain of its compensation arrangements that appeared to

contravene the federal healthcare-fraud statutes. However, we echo the district

court’s view that “the [Ethics Code] claims are true and not misleading.” Id. at

23.

From our perspective, Intermountain’s announcement of its intent to behave

ethically falls entirely outside the purview of a Lanham Act false-advertising

claim. A district court opinion from within our circuit offers convincing reasons

to support this conclusion:

Plaintiff’s Consolidated Complaint alleges that the Board’s

announcement of its adoption of a code of ethics in its third

quarter 2004 Form 10-Q was false and misleading, because the

Company failed to reveal ongoing significant breaches of the

Code by [specified individuals]. . . . [T]he Code of Ethics

essentially reaffirms state law fiduciary duties of the Company’s

officers[] . . . .

33

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 33 
A company’s essentially mandatory adoption of a code of ethics

simply does not imply that all of its directors and officers are

following that code of ethics. . . . Further, a code of ethics is

inherently aspirational; it simply cannot be that every time a

violation of that code occurs, a company is liable under federal

law for having chosen to adopt the code at all, particularly when

the adoption of such a code is effectively mandatory. 

Andropolis v. Red Robin Gourmet Burgers, Inc., 505 F. Supp. 2d 662, 685–86 (D.

Colo. 2007) (emphases added) (citations omitted).

Most relevant here, the notion that Intermountain’s Ethics Code is

“inherently aspirational,” id. at 686, finds support in the record. The Ethics Code

begins with a statement of purpose that sets behavioral expectations for

Intermountain employees. See Aplt. App. at 409 (stating that

“employees[] . . . must accept personal responsibility to act with the utmost

integrity” and that “[c]opies of Intermountain’s Code of Ethics are provided to

ensure that we all clearly understand our responsibilities”). It contemplates

“consequences of misconduct” as well. Id. By doing so, the Ethics Code (at least

tacitly) acknowledges that Intermountain’s standards are sometimes violated; such

violations trigger corrective action. This is precisely what happened when

Intermountain became aware of and responded to compensation arrangements that

appeared to contravene the federal healthcare-fraud statutes, entering into a

settlement agreement with federal regulators. See id. at 438–48 (Settlement

Agreement, dated Mar. 28, 2013) (representing Intermountain’s disclosure to the

Department of Health and Human Services that it submitted claims for payment

34

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 34 
“that may have been unlawful” and its agreement to repay the United States over

$25 million). Indeed, the very existence of the resulting settlement agreement

evinces the truthful spirit underlying Intermountain’s Ethics Code. Cf. id. at 410

(“[W]e report observed and suspected violations of laws or policies[] . . . .”).

Quite simply, we consider nothing false or misleading about

Intermountain’s Ethics Code in the context of the false-advertising section of the

Lanham Act. Aspirational statements announcing Intermountain’s intent to

comply with the federal healthcare-fraud statutes—laws which are not otherwise

at play in this appeal—do not implicate whether Intermountain has

“misrepresent[ed] the nature, characteristics, qualities, or geographic origin of

[its] . . . services.” 15 U.S.C. § 1125(a)(1)(B). Rather, these Ethics Code

representations explain Intermountain’s professed general strategy for conducting

ethical business and its intent to be forthcoming about any missteps along the

way. They are hence inapposite to the question of whether Plaintiffs have

pleaded “that [Intermountain] made material false or misleading representations

of fact in connection with the commercial advertising or promotion of [stroke and

TIA care] . . . [that] injure[d] the plaintiff[s].” Sally Beauty Co., 304 F.3d at 980

(emphasis added). Consequently, the statements in Intermountain’s Ethics Code

were properly deemed insufficient to support a Lanham Act claim.

35

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 35 
c

The last challenged set of specific advertising averments stems from

Intermountain’s Stroke Pamphlet. The target audience for this thirty-six-page

document includes stroke and TIA patients who have been admitted to an

Intermountain facility, as well as their family members and friends. See Aplt.

App. at 357 (Stroke Pamphlet, filed Oct. 7, 2013) (“After a stroke, you and your

loved ones may feel uncertain . . . . This booklet can help.”). It contains

background material on strokes and TIAs, a “Stroke Recovery Checklist,” an

index of stroke resources, and other general information concerning “[a]ftercare.” 

Id. (emphasis omitted).

According to Plaintiffs, page ten of the Stroke Pamphlet—an “Aftercare”

chart—contains the legally actionable language for their Lanham Act claim. That

page indicates that “an appointment with” a patient’s primary care provider “is

usually recommended 1 to 7 days after [leaving] to go home” and, similarly, that

visiting a neurologist “is usually recommended” “4 to 6 weeks after [leaving] to

go home.” Id. at 364 (capitalization altered) (emphases added). Plaintiffs insist

that these statements constitute false advertising because “[e]ven if these

guidelines apply[,] . . . . a TIA patient who reads this pamphlet is likely to be

under the mistaken impression that he or she can safely wait 4 to 6 weeks before

following up with a neurologist.” Aplt. Opening Br. at 17. Once again, we

disagree.

36

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 36 
From our perspective, the “Aftercare” chart in the Stroke Pamphlet cannot

be legally actionable under the Lanham Act for one simple, yet crucial, reason: it

nowhere purports to stake a position on “the nature, characteristics, [or]

qualities[] . . . of [Intermountain’s] . . . services.” 15 U.S.C. § 1125(a)(1)(B). No

references to Intermountain appear on that page of the document. In fact, having

reviewed the entire Stroke Pamphlet, we note that Intermountain names itself only

on the title page, in one very small “Call 911!” icon, and at the end, as one of

“many organizations that support people who’ve had a stroke.” Aplt. App. at

355, 379, 389 (emphasis added). In other words, we are not persuaded that this

document stands as an obvious endorsement of Intermountain’s services. 

Moreover, we would be hard-pressed to determine that this particular

“Aftercare” chart upon which Plaintiffs focus could mislead anyone about the

scope of Intermountain’s services. Indeed, we conclude that it could not mislead

a reasonable consumer about Intermountain’s overarching medical services or its

more specific stroke and TIA services (i.e., the subset of services germane to

these proceedings). It seems most accurate to characterize this portion of the

Stroke Pamphlet as a rudimentary worksheet suggesting how patients might

approach post-stroke or post-TIA life; that is far too vague to support a Lanham

Act claim. In any event, assuming that the average reader of the Stroke Pamphlet

has reached the chart on page 10, it stands to reason that she has also read the

disclaimer on page 3 stating that “this booklet doesn’t replace the specific

37

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 37 
instructions you will receive from your healthcare providers,” which need not be

Intermountain providers. Id. at 357 (emphasis added).

In sum, we conclude that the statements identified in the Stroke Pamphlet

cannot form the basis of a cognizable Lanham Act claim because they are not

misleading. Most importantly, for purposes of a Lanham Act claim, we discern

no expression in the Stroke Pamphlet’s statements related to the nature,

characteristics, or qualities of Intermountain’s healthcare services, and we

therefore see nothing misleading about those statements. Thus, we consider the

district court’s rejection of this aspect of Plaintiffs’ claim unassailable.

Accordingly, we uphold the district court’s rulings wherein the court

concluded that none of the “specific” advertising statements could serve as the

predicate for a Lanham Act false-advertising claim.

3

Because we have explicated in detail why the district court properly

dismissed Plaintiffs’ Lanham Act claim for insufficient averments concerning the

first element of such a claim, we need not (and thus do not) opine upon whether

Plaintiffs sufficiently alleged a legally actionable injury under the statute. We are

content to affirm the district court’s order on the first element, without addressing

any other aspects of the district court’s order. 

38

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 38 
III

We AFFIRM the judgment of the district court.

Entered for the Court

JEROME A. HOLMES

Circuit Judge

39

Appellate Case: 14-4045 Document: 01019568285 Date Filed: 02/09/2016 Page: 39