Mintz, Cohn, Ferris, Glovsky and Popeo, P.C. is pleased to announce a significant victory on behalf of its client CrossFit, Inc. against the National Strength & Conditioning Association (“NSCA”).  On September 21, 2016, the United States District Court for the Southern District of California issued rulings on both parties’ motions for summary judgment.   

The NSCA is one of the largest licensing organizations for personal trainers based on what is commonly referred to as the traditional fitness-establishment model. When CrossFit’s training methodology exploded in popularity in the early 2000’s, CrossFit, Inc. became a major player in the fitness market. Both CrossFit and the NSCA offered, and still offer, certifications to fitness professionals. 

The dispute between the parties arose in 2013 when the NSCA used its self-described preeminent scientific journal, the Journal of Strength and Conditioning Research, to publish an article originally intended to measure the effects of CrossFit training (“the Devor Study”).  The final, published version of Devor Study (falsely) claimed that the participants in the study - who used CrossFit training as part of the underlying study - were injured at an alarming rate.   

CrossFit, Inc.’s competitors began citing the Devor Study’s findings as “scientific evidence” that CrossFit was dangerous. Around the same time the study was published, CrossFit contends the NSCA was also supporting various local and state legislation, which would mandate that personal trainers be certified by the NSCA (or one of its colleagues), and not CrossFit or other newcomers to the fitness market who did not follow the traditional fitness-establishment model.   
 
CrossFit, Inc. moved for partial summary judgment on the element of falsity in its Lanham Act (false advertising) claims based on the false-injury data. The Court granted CrossFit, Inc.’s motion, concluding that “the evidence now before the court could reasonably support the inference that the injury data were false and – worse – that the NSCA knew they were false and published them anyway in an attempt to protect its position in the market.”
 
The NSCA also filed its own summary judgment motion seeking to dispose of all of CrossFit, Inc.’s claims. The NSCA’s motion primarily targeted CrossFit, Inc.’s Lanham Act claims, arguing that because the study at issue was published in an academic journal, it was entitled to First Amendment protection. More specifically, the NSCA claimed that because the study focused on an issue of public concern and did not reference the NSCA’s own services, there was no “commercial speech.”  
 
In its 20-page order, the Court sided with CrossFit, Inc. on all key issues relating to the NSCA’s motion. The decision has the potential to become persuasive authority in how Courts will define “commercial speech” in modern-day advertising. Disagreeing with the NSCA’s arguments, the Court explained:  
 
“[T]he fact that items of commercial speech appear alongside discussions of matters of public importance does not insulate that speech . . . .  The Devor Study as a whole does far more than merely proposing a commercial transaction, but the excerpts based on potentially fabricated data about a competitor’s product may nonetheless be commercial speech.  Looking at the communication from the JSCR editorial staff to the Devor Study authors, a reasonable fact finder could conclude that the NSCA pressured the authors to include” disparaging data, especially the Editor in Chief’s “admonition” that the paper could still be rejected, which “could be construed as a veiled threat.” 
 
The Mintz team included Micha “Mitch” Danzig, a Member in the firm’s Litigation and Employment, Labor and Benefits Practices, and Justin Nahama and Natalie Prescott, attorneys in Mintz Litigation Practice.