competitor lacks standing under Cal. law because it didn’t rely on alleged misrepresentations; its customers did

Posted on May 27, 2026 by rtushnet

Kachuck Enters. v. Mission Produce, Inc., — F.Supp.3d —-,
2026 WL 216475, No. 2:25-cv-01523-AH-JCx (C.D. Cal. Jan. 22, 2026)

This was a putative class action about alleged
misrepresentations made by distributors and suppliers of Mexican-grown avocados
that their avocados are sustainably and responsibly sourced. Plaintiffs, California
avocado farmers, alleged losses from defendants’ touting of “unsustainably
grown Mexican avocados as ‘sustainable’ to consumers.”

Despite representations about water conservation,
biodiversity, and soil health, defendants allegedly source their avocados from
Mexican orchards installed on lands recently deforested without the proper
permits from Mexican authorities. “Sourcing avocados from deforested land
exacerbates ongoing water scarcity in Mexico, contributes to climate change,
and leads to habitat and biodiversity loss.” Plaintiffs cited various surveys
showing that “significant segments” of U.S. consumers prioritize sustainability
and more transparency from food producers and retailers throughout the entire
food supply chain. Another survey “found that more than half … of consumers
indicated they are willing to spend more money on products that are deemed
sustainable or environmentally friendly.”

Plaintiffs brought the usual
California statutory claims. The court found no standing under the FAL and
the “fraudulent” prong of the UCL because plaintiffs didn’t allege their own
reliance on the false claims; rather, they alleged that they were harmed by
consumers’ reliance on the allegedly false claims. This reasoning seems dumb—these
laws were intended to protect competitors as well as consumers—and the court noted
an increasing minority of federal district courts have rejected it. It’s
probably time for the 9th Circuit to certify a question, though I don’t
have much doubt that the California Supreme Court will clarify that consumer reliance
is required, but not competitor reliance.

As for unfair competition/UCL unfairness, the court applied
the “tethering” test, which applies in actions “by a competitor alleging
anticompetitive practices.” A finding of unfairness must be “tethered to some
legislatively declared policy or proof of some actual or threatened impact on
competition”: “conduct that threatens an incipient violation of an antitrust
law, or violates the policy or spirit of one of those laws …, or otherwise
significantly threatens or harms competition.”

The test was not satisfied. Although plaintiffs argued in
briefing that “Defendants’ influx of cheaply priced and unsustainably—and
possibly illegally—sourced avocados distorts the market,” while plaintiffs must
comply with strict sustainability requirements, while the complaint focused only
on defendants’ acts of “offering for sale and selling deceptively labeled
Mexican avocados” and “deceptively marketing products.”

Regardless, that theory wasn’t enough. Plaintiffs argued
that defendants’ sourcing practices are exploitative because they are “possible
only by entities with sufficient size and power to dominate operations in
foreign countries with weaker environmental regulations” and they “exploit
residents of a foreign country and contribute to the wholesale destruction of
forests.” Thus, “Defendants leverage their size and reach to flood the market
with avocados, boxing out competitors.” But these were “conclusory assertions,”
and didn’t explain what part of antitrust law was implicated.  Nothing in the FTC Act specifically “precludes
a business from sourcing its products in a lower-cost country where
environmental laws or other safeguards may be less stringent than in the United
States,” and sourcing products abroad is not an FTC Act violation “simply
because regulatory conditions in those countries make the cost of production
lower.” Plus, injury to competitors isn’t injury to competition. [That argument
rings particularly hollow where the alleged distortions operate on whole
countries’ worth of businesses.]

from Blogger https://tushnet.blogspot.com/2026/05/competitor-lacks-standing-under-cal-law.html

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despite some skepticism, court mostly allows adtech vendor’s disparagement claims against competitor to proceed

Posted on May 27, 2026 by rtushnet

Double Verify Holdings, Inc. v. Adalytics Research, LLC, No.
25-1535-TDC, 2026 WL 1133411 (D. Md. Apr. 27, 2026)

DoubleVerify is in the business of “helping brands,
agencies, and publishers verify that their digital advertising investments are
delivered as intended.” Its customers advertise online and thus seek to ensure maximum
viewership by real potential consumers. “Online ads are typically placed on
websites through a high-speed, auction-like process.” The auctioneer, a
“demand-side platform,” collects “bids” from advertisers; this is the “pre-bid”
stage. If an advertiser’s bid is accepted and its ad is displayed, or “served,”
to the webpage visitor, the advertiser will be billed for the “impression.”

Online advertisers retain DoubleVerify to avoid having their
ads served to bots rather than to humans, and to avoid paying for such
impressions if they do occur. DoubleVerify offers two solutions to help
customers avoid paying for views resulting from bot activity, aka invalid
traffic (IVT): it claims that its pre-bid service successfully filters out 99
percent of GIVT impressions at the pre-bid stage, but it also offers a
post-serve service that (1) identifies and removes views resulting from standard
bot IVT (GIVT) from the counts of billable views and (2) notifies customers
about views resulting from malicious IVT so that they may then seek
reimbursement from the publishers. Users can use the pre-bid service, the post-serve
service, or both.

Adalytics is an “ ‘ad-tech’ vendor” that “sells an ad
transparency service that competes with DoubleVerify” and allegedly carried out
a disparagement campaign. Its report quoted DoubleVerify’s claim that it
“offers the most comprehensive and accurate pre-bid avoidance targeting
available in the market” but didn’t mention DoubleVerify’s post-serve services.

The Report claimed to be the “largest analysis of declared
bot traffic in the context of digital advertising.” Relevant claims: (1) “Many
publishers which appear to employ the IAS and DoubleVerify publisher
optimization tools on their pages were observed serving ads to bots, including
to declared bots operating out of known data center IP addresses.” (2) “Hundreds
of major brands whose ads’ source code include[s] … code from DoubleVerify
appear to have had their ads served to bots in data centers.” (3) Advertisers
“whose ads appear to be mediated by DoubleVerify’s Scibids AI technology” were
served “to declared bots operating out of known data center IP addresses or to
URLScan[’s] bots.”

It concluded that “[i]nterpreting the results of this
observational study requires nuance and caution,” and that “[o]ne should not
assume that because a given ad tech vendor or vendors transacted a given ad to
a bot that those vendors are somehow responsible or ‘at fault’ for the ad being
served to a bot.” The Report also cautioned that “[r]eaders should be
discerning and careful not to conflate distinct sets of observations or draw
inferences about causality, intent, quantitative impact, magnitude, or
provenance,” and that it “makes no assertions about” these issues. And it said
that it “does not make any recommendations to media buyers with regards to
whether or not to transact with specific ad vendors or with specific publishers,”
but advised that advertisers “may benefit from undertaking a closer review of
their digital advertising.”

DoubleVerify argued that, based on Adalytics’s “willful
blindness to post-serve detection and filtration,” the Report “falsely and
misleadingly portrays DoubleVerify’s web advertisement verification and fraud
protection services as ineffective, including by stating or clearly implying
that DoubleVerify’s customers are regularly billed for GIVT impressions.” In
addition, references to DoubleVerify in the source code on webpages from which
ads were served to bots could have occurred in relation to DoubleVerify
customers who did not use its pre-bid services. DoubleVerify alleged that, for
all of the ad views, or impressions, cited in the Report that were ostensibly
connected to DoubleVerify and that it was able to identify in its records, it
confirmed that it had actually detected such impressions at the post-serve
stage and either removed them from customers’ billable counts or flagged them
for reimbursement.

DoubleVerify alleged additional false or misleading
statements or material omissions, including using 115 screenshots of
advertisements presented in the Report as having been served by DoubleVerify
customers where at least 62 had no apparent connection to DoubleVerify.

DoubleVerify alleged reputational and financial harm from
dissemination of these claims, including a WSJ article titled “Efforts to Weed
Out Fake Users for Online Advertisers Fall Short,” which stated that
DoubleVerify “regularly miss[es] nonhuman traffic.” DoubleVerify’s stock price fell,
and it allegedly had to expend employee time and resources to counter the
Report. It therefore sued for false advertising under the Lanham Act as well as
defamation, injurious falsehood, tortious interference with business relations,
and unfair competition.

Was this a “commercial advertisement or promotion”? “Although
the Report reads more like an analysis of other products and related technology
than a communication aimed at selling Adalytics’s own goods or services,
DoubleVerify asserts that Adalytics publishes research of this kind because it ‘uses
its blog posts and articles to promote its own platform’ and supports that
claim by pointing to a February 2025 statement on Adalytics’s website that it ‘release[s]
thought leadership on systemic issues affecting brands and their media
investments … to … attract new clientele.’” And it alleged an economic motivation
for publishing: to win new business from customers of DoubleVerify.

Although the Report didn’t promote a specific product, that
wasn’t dispositive of whether this was commercial speech. Nor was whether this
was a traditional “advertisement.” At this stage, Adalytics’ direct competition
and commercial motivation was enough: “the Report could potentially constitute
commercial speech where its focus was the dissemination of the results of an
analysis critical of a competitor’s product or service.” And allegations about
harm to DoubleVerify’s stock price and “inbound calls from its customers
regarding the effectiveness of DoubleVerify’s services” adequately alleged that
the Report was “sufficiently disseminated to the relevant purchasing public to
constitute advertising or promotion within that industry.”

Adalytics claimed that the challenged statements were all
protected opinions on scientific and technical matters. The court disagreed
(reaching the same result on defamation).

Defamation: most of the challenged statements weren’t alleged
to be literally false. For example, the complaint conceded that DoubleVerify’s
pre-bid services do not actually prevent all ads from being delivered to bots
when it acknowledged that those pre-bid services filter out only “99% of
unwanted GIVT impressions.” But defamation by implication was possible. Under governing
Maryland law, if “the expressed facts are literally true,” a plaintiff pursuing
a defamation-by-implication theory “must make an especially rigorous showing”
and may prevail only if the challenged language “affirmatively suggest[s] that
the author intends or endorses the inference.”

The court found it significant that the Report stated that
“impression level log file data and financial invoices suggested that
advertisers were billed by ad tech vendors for ad impressions served to
declared bots operating out of known data center server farms.” This was fairly
implied to relate to DoubleVerify. Also, the Report plausibly misled when it
claimed to be able to identify whether a given brand had been charged for bot
avoidance services, even when these impressions could have been served by
DoubleVerify customers that do not have pre-bid solutions enabled. The court
was a bit skeptical—DoubleVerify didn’t allege that any material number of its
customers place online ads without enabling DoubleVerify’s pre-bid solutions—but
the case was in an early stage.

Assuming, without deciding, that DoubleVerify had to plead
an endorsement of the defamatory implications even though DoubleVerify wasn’t a
public official, it was plausible that Adalytics, which “claimed expertise in
advertising technology,” would understand that “DoubleVerify’s customers, in
accordance with industry standards, would not be charged for pre-bid
impressions served to bots once DoubleVerify’s post-serve processes were run.”
Also, DoubleVerify’s “pre-emptive article,” published two months before the
Report, put Adalytics on notice. And Adalytics allegedly illustrated its intent
to disseminate defamatory information because it sent a draft version of the
Report to certain media outlets but never requested any comment from
DoubleVerify. These allegations were sufficient if not “overly compelling.”

The disclaimer wasn’t sufficient because it didn’t specifically
disclaim the allegedly defamatory implication.

Nor was the Report protected opinion. “[A]lthough Adalytics
used some technical methods in the Report, it was published on the company’s
general website and was not a peer-reviewed scientific or technical journal
article such as those at issue in cases cited by Adalytics on this point.”Even
assuming that DoubleVerify was a limited-purpose public figure, it alleged
sufficient facts for actual malice, noted above.

Injurious falsehood claims also survived.  Expenses incurred when countering the
publication of the Report were sufficient to allege special damage. Common-law
unfair competition also survived, but tortious interference claims failed because
Double Verify didn’t “identify a possible future relationship which is likely
to occur, absent the interference, with specificity.”

from Blogger https://tushnet.blogspot.com/2026/05/despite-some-skepticism-court-mostly.html

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9th Circuit reverses dismissal where plaintiff plausibly alleges that an ingredient is non-natural flavoring

Posted on May 26, 2026 by rtushnet

Trammell v. KLN Enterprises, Inc., No. 24-6097 (9th Cir. May
15, 2026)

Perfect summary:

The defendant company in this case
represented to consumers that its berry snacks product contained no artificial
flavors. The plaintiff bought the product believing the representation to be
true. It turned out, however, that the product contained an artificial flavor.
Laboratory testing revealed that the product’s flavoring was not naturally
occurring but made from an artificial petroleum substrate. At least this is
what the plaintiff alleged (albeit with more detail) in his complaint. The
district court concluded, however, that the plaintiff failed to state a claim
and dismissed the complaint with prejudice. We disagree and reverse.

Wiley Wallaby Very Berry Licorice says on the front, “Natural
Strawberry & Raspberry Flavored Licorice,” and “Naturally Flavored,” while
the back label states, “Free of . . . Artificial Colors & Flavors.”

Trammell sued for violation of the CLRA,
unjust enrichment, and breach of express warranty. Although the product represents
that it is free of artificial colors and flavors, it allegedly contains an
artificial flavor, malic acid. Natural malic acid, derived from natural fruit
sources, is commonly known as “L malic acid,” while artificial malic acid,
derived from a petroleum substrate and other synthetic components, is commonly
referred to as “DL malic acid.”

Trammell alleged that the product was tested in a laboratory
and that the testing results “establishe[d] that the malic acid used in these
Products is DL malic acid, and not L malic acid.” Allegedly, the test used the
“industry standard” method for testing for the “D isomer” of malic acid, which
is “not present in any amount in” natural malic acid and which would indicate
“the use of artificial DL malic acid” in the food or beverage tested.

The district court thought that wasn’t enough to plausibly
allege that the malic acid was artificial, and that a reasonable consumer
wouldn’t be misled because “Naturally Flavored” and “Natural Strawberry &
Raspberry Flavored Licorice” were “not unambiguously deceptive”: “a reasonable
consumer would not interpret the front label as unambiguously representing that
[the Product] does not contain artificial ingredients.” The back label
statement “Free of . . . Artificial Colors & Flavors” was not deceptive
because the back label “discloses both natural and artificial ingredients in
plain text.” “[N]owhere on the front or back label does it state that the
product is ‘all natural,’ ‘100% natural,’ or ‘free of artificial ingredients,’”
so “nothing about this product—a brightly colored, shelf-stable licorice
candy—would lead a reasonable consumer to conclude that [the Product] is free
of artificial ingredients when the product labels make no affirmative
representations saying as such.”

This was error. The complaint satisfied Rule 9(b). It gave
notice to the defendant and provided the court with “some assurance” that his
theory of liability “has a basis in fact.” Trammell alleged the specific
laboratory that performed the testing; he provided a date of the testing; he
explained the qualifications of the laboratory (“a reputable independent food
testing and analysis laboratory that has conducted testing for the food and
beverage industry since 1984”); and he discussed the laboratory’s “industry
standard” methodology for detecting artificial malic acid by testing for the
presence of the “D isomer” of malic acid, which is “not present in any amount”
in natural malic acid. That was specific enough, and more specific than the
allegations in cases on which the district court relied.

As for the merits, “Trammell plausibly pleaded that a
reasonable consumer is likely to be deceived by a product that claims to be
free of artificial flavors when that claim is (allegedly) not true.” Even if “Natural
Strawberry & Raspberry Flavored Licorice” and “Naturally Flavored” wasn’t false
or misleading, the back label makes a specific claim about being “Free of . . .
Artificial Colors & Flavors,” Trammell has plausibly pleaded that was false
or misleading.

Nor, contrary to the district court’s reasoning, did the back
label actually disclose both natural and artificial ingredients:

The ingredients list on the back
label does not disclose, on its face, which of the ingredients are artificial.
Indeed, despite claiming that artificial ingredients are plainly disclosed,
neither the district court nor Defendant identifies which ingredients are
artificial. Some ingredients, like “malic acid,” may come in two forms—natural
or artificial. But the list does not say which it is. A reasonable consumer,
not being a chemist, is not in a position to make that assessment when buying
the Product. What a reasonable consumer can understand is the Product’s
representation that there are no artificial flavors. When that clear
representation is placed next to an ingredients list—a list that does not make
apparent (1) which ingredients are flavors and (2) which of those ingredients
are artificial—a reasonable consumer could plausibly be (mis)led into believing
that the Product does not contain artificial flavors. If anything, the
ingredients list here—which does include an ingredient called “natural flavor”—reinforces
the Product’s free-of-artificial-flavors statement.

True, the product never claimed to be “‘all natural,’ ‘100%
natural,’ or ‘free of artificial ingredients,’” but Trammell’s claim wasn’t that
those things were false, but rather that the product was not free of artificial
flavors. The fact that the product is “a brightly colored, shelf-stable
licorice candy” “may go to the artificiality of the coloring and preservative;
they do not necessarily bear on the artificiality of the flavors.”

Defendant also argued that the FDA considers “malic acid” a
mere “flavor enhancer,” not a “flavoring agent.” “But whatever category malic
acid falls under in the FDA’s regulatory scheme, the question is what a
reasonable consumer expects, not what a regulatory expert in the
food-and-beverage industry knows. And here, Trammell has plausibly alleged that
a reasonable consumer expects the Product to be free of artificial flavors and
that it would be misleading to that consumer if the Product contained an
artificial petroleum substrate as a flavoring—whether as a flavor itself or as
a flavor enhancement.”

from Blogger https://tushnet.blogspot.com/2026/05/9th-circuit-reverses-dismissal-where.html

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Reminder: Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026: submit by June 1

Posted on May 26, 2026 by rtushnet

Penn/NYU/Harvard Trademark and Unfair Competition Scholarship Roundtable 2026

The Trademark and Unfair Competition Scholarship Roundtable co-hosted by
Harvard, NYU, and the University of Pennsylvania will take place this
year at NYU. Now in its fifth year, the Roundtable is designed to be a
forum for the discussion of current trademark, unfair competition, and
right of publicity scholarship, covering a range of methodologies,
topics, and perspectives. Five to six papers will be chosen for
discussion over the course of the Roundtable, with each paper allocated
an hour for discussion and assigned a commentator.

The Roundtable will be held on Friday, October 16, 2026. If there is a
critical mass of papers, we may also extend the Roundtable through
Saturday morning, October 17. Participation at the Roundtable will be
limited and invitation-only and we expect all participants to have read
the papers in advance. We will ask participants to rely if possible on
research accounts to cover travel and accommodation, but if that is not
possible we will have funds to cover costs.

We invite submissions from academics working on any aspect of trademark,
false advertising, marketing, right of publicity, or related areas of
the law. Priority will be given to those who can attend the entire event
and a dinner the night of Friday, October 16. Submissions must be of
full drafts in Microsoft word format. The deadline for submission is
June 1, 2026. Decisions on participation will be made by June 15, 2026.

Submissions should be made by means of this Google form<https://urldefense.proofpoint.com/v2/url?u=https-3A__docs.google.com_forms_d_e_1FAIpQLSfpHCiFmcHZ6SCKp4oWYC1TDTVXC8MNxWlaw2XpMc4IF3GtHQ_viewform-3Fusp-3Dpublish-2Deditor&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=JCtF1L1KFZQA400a-MfN1LbbUwey4sno6RJztdDSMVk&m=frYEnTCmkzL5dabxDGK2I-SaTfGMF9qSkTH-tqc6v8_eRDuLE2XZ1o1PydGPHvx0&s=PUCAH7B4foFMqAuRCNa6K1oA1S63rzSVKgCgIrUKF8I&e=>. If you have any questions, please contact Barton Beebe at barton.beebe@nyu.edu<mailto:barton.beebe@nyu.edu>.

from Blogger https://tushnet.blogspot.com/2026/05/reminder-pennnyuharvard-trademark-and.html

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mix-and-match ad campaign actionable but “instant whitening” claims were mere puffery

Posted on May 26, 2026 by rtushnet

Ledesma v. Hismile, Inc., 2026 WL 1146742, No.
24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously.
Here, the plaintiffs provide enough allegations about the challenged
teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of
algorithmically generated ads, but still lose on puffery grounds. In essence,
defendants allegedly exaggerated the teeth-whitening capabilities of their
products through various means, such as unnaturally bright lighting and models
who already have very white teeth, fake reviews, fake customer videos, claims
of clinical proof, and claims of “color correction technology: purple and
yellow are complementary colors opposite to each other on the color wheel, so
purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted
on defendants’ social media accounts using the same core advertising methods,
and that many advertisements “reus[e] the exact same clips in a different
order, or with different actors reading similar scripts and acting out similar
scenarios.” They brought California
and NY claims.

Defendants argued that plaintiffs failed to identify the
specific advertisements that they saw. But “California courts have recognized
an exception to the requirement that a plaintiff identify the specific
advertisement they relied upon ‘where a claim of fraud is based upon a
long-term advertising campaign, which may seek to persuade by cumulative impact,
not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged
that the ad campaign began more than ten years ago and saturates social media
user feeds with videos, many of which reuse the same clips in different orders
or with different actors reading similar scripts or acting out similar
scenarios, all touting “the same false core message: that Hismile’s Products
deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently
alleged their own individual exposure to this advertising campaign, including
when and/or how long they saw the advertisements, what social media platforms
they saw the advertisements on, more specific examples of the types of
advertisements they saw, and the effect of those advertisements on Plaintiffs’
perception of the product — namely, that the products “would produce an
instant whitening effect.” That sufficed under Rule 9(b) to identify the who
(Defendants), what (the advertising campaign and the types of advertisements
viewed by Plaintiffs), when (the length of the advertising campaign and
approximately when Plaintiffs were exposed to it), where (the social media
platforms Plaintiffs viewed the ads on), and how (the allegedly false claim
spread by the advertising campaign that Defendants’ products “instantly” whiten
teeth).

Defendants argued that plaintiffs should have identified specific
ads because they were still “readily accessible” on defendants’ social media. “But
this argument only highlights the difficulty of identifying the specific
advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account
posts at a rate of 15 or more videos a day, which results in over 1,000 videos
in the span of 67 days. …To require that a plaintiff comb through hundreds to
thousands of similar videos advertisements (assuming the viewed advertisement
is still available) imposes a potentially insurmountable burden.” The court
wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the
allegedly false/misleading influencers and customer reviews upon which they
relied.

However, the case still had to be dismissed because “instant”
whitening was puffery. (What about the clinical proof claim, above?) “Instant”
wasn’t a quantifiable statement, but a general, subjective claim. Nor could
plaintiffs use the duration of ads/demos during ads to show that defendants
gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At
what point in time would ‘instant’ no longer be an accurate description?” After
all, “many things are advertised as ‘instant’ — instant noodles, instant
oatmeal, instant film, instant stain remover — that are not literally instant
but can take several minutes even if they are significantly faster than their
non-instant counterparts.”

from Blogger https://tushnet.blogspot.com/2026/05/mix-and-match-ad-campaign-actionable.html

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Costco’s “free shipping” claims plausibly deceptive if online price is raised to account for shipping

Posted on May 26, 2026 by rtushnet

Zaimi v. Costco Wholesale Corp., 2026 WL 1145798, No.
2:25-cv-01076-JHC (W.D. Wash. Apr. 28, 2026)

The court refused to dismiss statutory and common-law claims
related to price differences between items that Costco sells online and
in-store: online, Costco charges more for big-ticket items like couches to
cover shipping, but advertises “free shipping.”  For example, one couch is available for
$2,099.99 when bought in a physical Costco store but costs $2,399.99 when
purchased online, and at checkout, “Shipping & Handling” is listed as
“$0.00.” Within the online listing, in light grey font, Costco says that
“Delivery, setup and packing removal [are] included,” and that “Items may be
available in your local warehouse, prices may vary.” Also, there’s a webpage
that says “Costco.com prices take into account shipping and handling fees not
applicable to warehouse purchases,” but plaintiff alleged that “she was not
presented with, and did not read, the fine print on Defendant’s customer
service webpage admitting that those representations were false.” She brought
claims under the Washington Consumer Protection Act (CPA) and California’s FAL,
UCL, and CLRA, along with claims for breach of contract, breach of
warranty, quasi-contract/unjust enrichment, and negligent and intentional
misrepresentation, which the court declined to dismiss. I won’t discuss many of
the details.

Costco argued that it disclosed the price differences and
shipping costs. Online, the listing states that “[d]elivery, setup, and
packaging removal included” in the stated price, and elsewhere on the website, it
discloses that items are cheaper if bought in-store. Thus, believing that one
would pay the same for the couch online as in the warehouse and pay nothing to
have it delivered was patently unreasonable.

Zaimi rejoined that the checkout page statement, “Shipping
& Handling $0.00,” induces reasonable consumers into believing they are
paying $0.00 for shipping, and that general disclaimers (that items are
available at a lower price in its warehouses) do not “negate the clear message
that ‘Shipping & Handling $0.00’ conveys to reasonable consumers.” The
court found no previous case to be entirely on point, but, at the motion to
dismiss stage, this theory was plausible. The online listing didn’t state that
the prices will be lower in-store: It states that the “prices may vary.” And
plaintiff plausibly alleged that consumers “expect free shipping,” given the
ubiquity of online shopping, even for large purchases like furniture.  

As for injury under Washington consumer protection law, it
was enough to allege that she “would not have made the online purchase if she
had known that she was paying for shipping or that Defendant charged more for
the product online.”

from Blogger https://tushnet.blogspot.com/2026/05/costcos-free-shipping-claims-plausibly.html

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slack fill claims proceed because protein powder is harder to understand than cookies

Posted on May 25, 2026 by rtushnet

Cody v. Gainful Health Inc., 2026 WL 1428888, No. EDCV
25-01373-KK-SPx (C.D. Cal. May 19, 2026)

Gainful sells protein powder nutritional supplement products;
plaintiff alleged unlawful slack fill. Cody bought a “28 Servings” package that
“included two pouches or bags,” each weighing 14.8 ounces and “contain[ing] 14
servings per container,” and 28 “Flavor Boost” packets. Each pouch was “opaque”
and did “not allow the customer to fully view its contents.” The nutrition
label on the back of each pouch indicated a serving size of “1 scoop (30 g).” She
saw the image online, which “depicted a totally opaque Product container that
did not allow Plaintiff … to see the fill level within such container.” The
image also showed the “Flavor Boost” packets, “which indicated the far greater
size of the Product’s container by comparison.” The Amazon product listing
disclosed 28 servings, weight of 30 ounces, and package dimensions of 10.47 by
9.92 by 4.76 inches. But it did “not disclose any … disclaimer such as a
reference to a fill line or other caveat disclosing that the Product’s
container was not packaged to be substantially full of protein powder.”

The court found the claims sufficiently pled under the relevant
California statutes and common-law fraud. Cody sufficiently alleged an
affirmative misrepresentation by using an opaque and “oversized” container,
“which implied … that the container had more protein powder than it actually
contained,” and failure to disclose the non-functional slack fill in violation
of California law.

“Because a consumer viewing the Product listing on
Defendant’s online storefront has no ‘reasonable opportunity prior to purchase
to shake or otherwise manipulate’ the Product to determine whether the
Product’s packaging ‘is filled to the brim,’ they “may reasonably rely on the
size of the packaging and believe that it accurately reflects the amount [they
are] purchasing.’” Here, the packaging as depicted on the online storefront
conceals that the “actual product only occupies approximately 60 [percent] of
the exterior space represented by the Product’s packaging container.”

What about the quantity disclosures that did exist? First,
it was unclear whether the listing included the back label, making any
information on that label “irrelevant to determining whether a reasonable
consumer is likely to be deceived.” Listing dimensions, weight, and number of
servings “do[ ] not necessarily provide the reasonable consumer a meaningful
metric for how much powder is in the container,” as a reasonable consumer is
“not necessarily aware” of how a product’s weight and number of servings
“correlate[ ] to the product’s size.”

Even if Cody saw the back label, deception was still plausible.
Gainful cited several cases finding “no reasonable consumer would be plausibly
deceived” where a package “provide[s] a consumer with a ‘rough estimate’ of the
amount of final product that can be made from its contents.” But each of those
cases “involved products that were discrete, countable goods, the number of
which were disclosed on the label.” The instructions on the back label did not
indicate how much protein powder a consumer should mix with 8 oz of milk or
plant-based milk or blend with 8 oz of the consumer’s “favorite beverage.” Nor
did the instructions indicate how much “Flavor Boost” a consumer should mix
with milk, blend into a smoothie, or add into a baked good. While the back
label suggested a consumer could “[a]dd a scoop” of the Product to their
“favorite baked good recipe,” it didn’t specify the type or amount of baked
goods to which a scoop of the Product should be added. Without that, a “scoop”
of protein powder “is not an intrinsically meaningful metric of quantity,” even
when “the consumer can calculate the approximate weight of each scoop.” As
another court said: “A label that states a cannister contains 20 scoops of
protein powder communicates materially less information to a consumer than a
label stating that a cannister contains 20 cookies.”

She also sufficiently alleged that the slack fill was
nonfunctional. It sufficed to allege that (1) “[t]here is no risk of the powder
breaking or sustaining damage if there was less empty space in the Product’s
container,” (2) “the machines used for enclosing the contents of the package
have the capacity to add more content to the containers used to enclose the
contents of the Product,” and “[a]t most, a simple recalibration of the
machines would be required,” (3) “any settling” of the Product “occurs
immediately at the point of fill” because of “the Product’s density, shape, and
composition,” (4) the Product’s packaging “contains no instructions to
consumers that they should mix together the Product’s whey protein powder with
any Flavor Boost within the Product’s pouch container,” (5) “[t]he package is
intended to be discarded immediately after the Product is consumed” and is not
a “durable commemorative package” or “promotional package,” and (6) “Defendant
can easily increase the quantity of the Product in each package (or,
alternatively, decrease the size of the packages) significantly.” These plausibly
alleged that none of the safe harbor provisions in California’s slack fill law applied.

from Blogger https://tushnet.blogspot.com/2026/05/slack-fill-claims-proceed-because.html

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contract, 230, and lack of specificity defeat “chat scam” claims against OnlyFans

Posted on May 25, 2026 by rtushnet

N.Z. v. Fenix Int’l Ltd., 2026 WL 1425183, No.
8:24-cv-01655-FWS-SSC (C.D. Cal. May 19, 2026)

Plaintiffs sued OnlyFans (Fenix) and other entities who
manage OnlyFans models based on allegations that they concealed the fact that
plaintiffs weren’t authentically chatting with OnlyFans models, despite the
centrality of the promise of authentic personal interaction to OnlyFans. One of
OnlyFans’ “Core Values” is the following: “Giving creators control to own and
monetize their content and to foster authentic relationships with their
followers and fanbase.” Also, OnlyFans urges Fans to subscribe to specific
Creators using the following language: “SUBSCRIBE AND GET THESE BENEFITS: Full
access to this user’s content [/] Direct message with this user [/] Cancel your
subscription at any time.”

The agency defendants allegedly “sell their services to
OnlyFans Creators with promises that they can increase a Creator’s revenue
exponentially—without the Creator ever having to actually do what OnlyFans
promises: ‘directly connect’ with Fans.” They allegedly “contract with
‘Chatters’ to conduct most, if not all, of the communications between the
Creators and the Fans. Without the Fans’ knowledge, the Chatters impersonate
the Creators when direct messaging with Fans.” “Agencies even provide Chatters
with actual ‘scripts’ similar to those used by telemarketers and call center
employees, which give Chatters a specific workflow to follow in order to
maximize the amount of money extracted from any given Fan.”

In recent years, agencies have allegedly developed
specialized tools to facilitate the use of a single OnlyFans account by a team
of Chatters. Further alleged: “OnlyFans is either aware of, or intentionally
ignorant to, the use of CRM software on its platform—not least because its use
violates OnlyFans’ Terms of Service—but chooses to do nothing to prevent the
use of this software because of the increased revenues that CRM software
facilitates.” And: “OnlyFans knew, and should have known, that its Creators
were using Chatters to engage with Fans— including based on the revenue being
generated by those Creators; the number of direct messages with Fans; the
number of different login sessions to a given Creator’s account, often from
many different locations and IP addresses; and the number of Fan complaints
(which OnlyFans ignored).” As a result, they alleged, “the ‘Chatter Scams’
involve massive breaches of confidentiality and privacy violations in which
intimate communications and private and/or personal information about
Fans—including photos and videos—are distributed and/or accessible to numerous
unauthorized parties.”

Plaintiffs sought to assert various claims against OnlyFans
and the agencies, including RICO, VPPA, breach
of contract, fraud, and California
UCL/FAL claims.

§ 230: The VPPA and RICO claims against OnlyFans were barred
because they sought to hold OnlyFans liable solely for facilitating, or failing
to moderate, communications through the OnlyFans platform. (The other RICO
claims failed because they were RICO claims.)

However, the breach of contract claim depended on claims of breach
of  a contractual promise that OnlyFans
“will use reasonable care and skill in providing OnlyFans” by collecting “data
sufficient to identify Chatter-operated accounts—including multiple
simultaneous logins from disparate geographic locations—and failed to act on
this information.” That wasn’t seeking to hold OnlyFans liable solely for
facilitating communications but rather to require it to ensure the users are
operating OnlyFans properly and that OnlyFans acts on the simultaneous logins. (Eric
Goldman will hate that!)

And, to the extent that misrepresentation claims were based
on OnlyFans’ own representations that users can “ ‘direct message’ …, chat ‘1
on 1’ …, and build ‘genuine’ and ‘authentic’ connections” with Creators,
those weren’t barred. The claims wouldn’t require OnlyFans to monitor
third-party communications to avoid liability. (But the breach of contract
claim would!) Anyway, although “content moderation [may be] one possible
solution” for OnlyFans to fulfill its alleged duties, “the underlying duty
being invoked by the Plaintiffs … is the promise” or representation itself.

VPPA: The VPPA provides that “[a] video tape service
provider who knowingly discloses, to any person, personally identifiable
information concerning any consumer of such provider shall be liable to the
aggrieved person.” The Ninth Circuit has adopted the ordinary person standard
to determine what constitutes PII, holding that “personally identifiable
information means only that information that would readily permit an ordinary
person to identify a specific individual’s video-watching behavior.” Under the
TOS, plaintiffs agreed and acknowledged that their “[c]ontent may be viewed by
individuals that recognise [their] identity” and that OnlyFans is “not in any
way … responsible” if Plaintiffs “are identified from [their] Content.” And plaintiffs
failed to sufficiently allege OnlyFans’ knowledge.

However, they sufficiently pled that the agency defendants
knowingly disclosed PII: they alleged that they shared personal information in
chats with Creators, including their full legal name and photos of their face,
and that the Chatter Scams function by “creating a communication history
viewable by Chatters” which consists of “intimate knowledge of the Fan’s
personal information, conversation history, and preferences,” and most
importantly, “the specific content that they requested and/or viewed.” The agency
defendants allegedly disclosed PII from Fans to Chatters by sharing login
information or via CRM software.

Under the VPPA, “A video tape service provider may disclose
personally identifiable information concerning any consumer … to any person
if the disclosure is incident to the ordinary course of business of the video
tape service provider.” At this stage, that exclusion didn’t require dismissal.

Breach of contract: the statement “ ‘Direct message with
this user [Creator]’ ” wasn’t part of the TOS, which contained an integration
clause stating that users have “[n]o implied licenses or other rights are
granted to [them] in relation to any part of OnlyFans, save as expressly set
out in the Terms of Service” and that the TOS “form the entire agreement
between [Fenix International] and [the user] regarding [the user’s] access to
and use of OnlyFans,” and “govern [Plaintiffs’] use of OnlyFans.”

Failure to provide the platform with reasonable care and
skill: It wasn’t enough to allege that OnlyFans allowed management agencies to
use Chatters to impersonate Creators because this theory of liability imposed a
monitoring obligation on Fenix Defendants. Nor was merely designing and
providing tools for OnlyFans users sufficient to allege a breach; plaintiffs didn’t
allege how tools such as Fan spending analytics and “inter-shift notes features”
enable, or were specifically designed for, the Chatter Scam.

Implied covenant of good faith and fair dealing: Failed
because plaintiffs sought to impose duties beyond those incorporated in the
specific terms of the alleged contract.

Also, fans were not third-party beneficiaries of the Creator
TOS, which required Creators to be individuals and safeguard their accounts
given its express language saying there weren’t any third-party beneficiaries.

Fraud and deceit: Also failed against OnlyFans. OnlyFans made
explicit disclosures about the use of third parties, its inability to control
how Fan content is used, and the materials provided to Fans.

UCL/FAL: Not sufficiently alleged against agency defendants
because plaintiffs didn’t allege the specific representations at issue.

from Blogger https://tushnet.blogspot.com/2026/05/contract-230-and-lack-of-specificity.html

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CFP: Ninth Junior Faculty Forum on Law and STEM

Posted on May 23, 2026 by rtushnet

Call for Papers

Ninth Junior Faculty Forum on Law and STEM

Stanford Law School, November 6-7, 2026

The
Northwestern, Penn, and Stanford law schools are pleased to announce a
Call for Papers for the Ninth Junior Faculty Forum on Law and STEM,
which will be held at Stanford on November 6-7, 2026. The Forum is
dedicated to interdisciplinary scholarship focusing on the intersection
of Law and Science-Technology-Engineering-Mathematics (STEM). We are
seeking submissions from junior faculty in any discipline interested in
presenting papers at the Forum. The submission deadline is June 15, 2026.

A
group of junior scholars will be chosen on a blind basis from among
those submitting papers by a jury of accomplished scholars with
expertise in Law and STEM. One or more senior scholars, not necessarily
from Northwestern, Penn, and Stanford, will comment on each paper. The
audience will include the participating junior faculty, faculty from the
host institutions, and invited guests. Participating junior faculty are
expected to stay for the full duration of the Forum.

Our
goal is to promote interdisciplinary research exploring how
developments in STEM are affecting law and vice versa. Preference will
be given to papers with strong interdisciplinary approaches integrating
these two areas of study.

We
invite submissions on any topic related to the intersection of law and
any STEM field. Potential topics include (but are not limited to):

  • Artificial intelligence
  • Autonomous vehicles
  • Biomedical research and drug development
  • Biometrics
  • Bitcoin and other blockchain technologies
  • ChatGPT and large language models
  • Climate change technologies
  • Computational law and algorithmic decisionmaking
  • Cryptocurrency and NFTs
  • Digital health and health data
  • Genetics, epigenetics, and gene editing
  • Machine learning and predictive analytics
  • Nanotechnology
  • Neuroscience and law
  • Online security and privacy
  • Personalized medicine
  • Regulation of online platforms
  • Robotics
  • Spectrum policy
  • Synthetic biology
  • Virtual and augmented reality

There
is no publication commitment. Northwestern, Penn, and Stanford will
cover presenters’ and commentators’ travel expenses, though
international flights may be only partially reimbursed. Authors of
accepted papers are expected to attend the conference and present their
work in person.

QUALIFICATIONS:
To be eligible, authors must be teaching at a U.S. school of higher
education in a tenured or tenure-track position or as a Visiting
Assistant Professor or Fellow and must have received their first
tenure-track appointment no more than seven years before the conference.
Authors in tenured and tenure-track positions will be given priority.
American citizens or permanent residents teaching abroad are also
eligible to submit provided that they have held a faculty position or
the equivalent, including positions comparable to junior faculty
positions in research institutions, for less than seven years, and that
they earned their last degree within the past ten years. We accept
jointly authored submissions so long as the presenting coauthor is
individually eligible to participate in the Forum and none of the other coauthors
has taught in a tenured or tenure-track position for more than seven
years. Papers that will be published prior to the meeting are not
eligible. Authors may submit only one paper.

PAPER
SUBMISSION PROCEDURE: Electronic submissions should be made through
this website. Please remove all references to the author(s) in the
paper. The submission deadline is June 15, 2026.  We will notify
applicants as soon as practicable thereafter whether their papers have
been selected.
https://forms.gle/PPPn823V1DmYwQvP6

Any questions about the submission procedure should be directed to Professor Lisa Ouellette (ouellette@law.stanford.edu).

FURTHER
INFORMATION: Inquiries concerning the Forum should be sent to Lisa
Ouellette at Stanford Law School, David Schwartz at Northwestern
University Pritzker School of Law, or Christopher Yoo at University of
Pennsylvania Carey Law School.

from Blogger https://tushnet.blogspot.com/2026/05/cfp-ninth-junior-faculty-forum-on-law.html

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Lanham Act requires less in the way of injury from competitors than California FAL/UCL

Posted on May 22, 2026 by rtushnet

Eight Sleep Inc. v. Orion Longevity Inc., 2026 WL 1243359, No.
2:26-cv-02460-SB-KS (C.D. Cal. May 4, 2026)

Eight Sleep “developed and patented the Eight Sleep Pod, a ‘bio-tracking
mattress cover’ that optimizes sleep by using biometric measurements to
automatically adjust the temperature of the user’s bed.” Defendant Orion developed
a competing temperature-regulating mattress cover with similar features. Eight
Sleep sued for patent infringement, which I will not discuss (the patent claims
survive), and false advertising, which I will.

Orion allegedly made false and misleading statements about
the Orion Sleep System’s features and availability, including by representing,
during development, capabilities not borne out in the product released to the
market, in violation of the California UCL
and FAL. Orion argued that there was no statutory standing.

Both statutes “require[ ] that a plaintiff have ‘lost money
or property’ to have standing to sue,” which requires the plaintiff to
“demonstrate some form of economic injury.” The economic injury must also be “
‘as a result of’ the unfair competition or a violation of the false advertising
law,” which requires the plaintiff to show “a causal connection or reliance on
the alleged misrepresentation.”

Eight Sleep relied on the Ninth Circuit TrafficSchool
case’s statement that courts have “generally presumed commercial injury” when
the parties “are direct competitors and [the] defendant’s misrepresentation has
a tendency to mislead consumers.” But that decision addressed the Lanham Act,
which requires only likely injury. Under the UCL and FAL, actual monetary loss
is required.

The complaint only conclusorily alleged that as a result of
Orion’s false advertising, Eight Sleep’s goodwill was damaged, and it “lost
sales because customers who would have otherwise purchased its products,
instead purchased Orion.” That wasn’t enough: “First, the law is unsettled as
to whether injury derived from a customer’s reliance on fraudulent
advertisements may support a false-advertising claim by a competitor who did
not rely on the fraud.” Federal district courts are increasingly accepting
reliance by deceived consumers rather than the competitor-plaintiff, but, even
under that more permissive approach, the complaint was insufficiently detailed.
Similarly, allegations Orion “repeatedly approached investors with false
claims” about the parties’ products and Eight Sleep’s profits and margins, and
that Eight Sleep “lost investment opportunities that would otherwise have been
available from investors who would have, but for Orion’s false statements to
investors, invested in Eight Sleep” didn’t identify specific misrepresentations,
even if it were clear that statements to investors are actionable as
advertisements under the UCL and FAL.

What about Lanham Act claims?  At least one false statement was plausibly
alleged: a chart purporting to compare the features offered by “Eight Sleep”
and “Orion,” suggesting that Orion offered all 10 of the features listed while Eight
Sleep offered only one (embedded sleep sensors). One of the features identified
for Orion’s product was “5-Stage sleep tracker,” which the complaint alleges
“never existed.” The false statement was posted on Orion’s during “some of the
busiest shopping dates in the United States, including Black Friday.”

from Blogger https://tushnet.blogspot.com/2026/05/lanham-act-requires-less-in-way-of.html

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