On December 4, 2008, the United States District Court for the Southern District of New York denied a preliminary injunction motion which sought to bar two German asset management firms from advertising and marketing certain private equity funds in Germany. NewMarkets Partners LLC v. Sal. Oppenheim jr & CIE, et al. 2008 WL 5191147 (S.D.N.Y.). The litigation arose out of a failed joint venture between one of the German defendants and a U.S.-based limited liability company. Plaintiffs asserted claims of false advertising pursuant to the Lanham Act as well as a number of state law claims.
In their preliminary injunction motion, plaintiffs sought an order from the New York federal court prohibiting the German defendants from advertising, promoting, developing and/or managing two private equity funds until the defendants (a) withdrew the private placement memoranda issued for these funds, and (b) issued a press release correcting certain alleged misrepresentations. The purported misrepresentations were made in German-language prospectuses for the two funds which had been approved by the German Financial Supervisory Authority (the Bundesanstalt für Finanzdienstleistungsaufsicht). The funds themselves were exclusively marketed to German investors.
In denying plaintiffs' motion, the New York Court determined that the prospectuses for the German funds were not comparative advertisements. It therefore noted that plaintiffs must demonstrate that they will be irreparably harmed in order to qualify for a preliminary injunction. In reviewing plaintiffs' allegations in detail, the Court found that they had failed to demonstrate any irreparable harm which would justify the "extraordinary remedy" of a preliminary injunction.
Defendant CAM Private Equity Consulting & Verwaltungs GmbH was represented in this litigation by Frederick W. Reif, Debra Tama, Peter Beadle and Nicole Sullivan.
