Rebecca Tushnet

Victory Global, LLC v. Fresh Bourbon, LLC, — F.4th —-,
2026 WL 836221, No. 25-5173 (6^th Cir. Mar. 26, 2026)

Lower
court decision discussed here.

Victory Global, d/b/a Brough Brothers claims to have become
the “first” African American-owned company to distill bourbon when it opened
its physical distillery in 2020. But Fresh Bourbon counters that it was the
“first” because its owners physically distilled their brand at another
company’s distillery two years earlier. Brough Brothers sued for Lanham Act
false advertising, but failed to identify any unambiguously false statements or
evidence of deception. The court of appeals affirmed the grant of summary
judgment to Fresh Bourbon.

Brough Brothers sold their its batch of bourbon under the
Brough Brothers label in 2020. The bottles truthfully disclosed that they were
distilled in Indiana. On New Year’s Eve in 2020, they distilled their first
bourbon in Kentucky.

Fresh Bourbon distilled using another distillery’s space starting
in 2018; eventually, Fresh Bourbon’s employees knew what they were doing and
got “free reign” [sigh] of the Hartfield distillery. It first sold its bourbon made
at Hartfield in 2020, using Hartfield’s federal license to sell to
distributors. The label stated: “Distilled and Bottled by Buchanan Griggs Inc.
Paris, Kentucky For Fresh Bourbon Distilling Company[.]” Fresh Bourbon owned
the recipe for this bourbon, and Hartfield agreed not to make it for others.
Eventually, Fresh Bourbon opened its own distillery and distilled its first
batch either in late 2022 or in early 2023.

“Given that Brough Brothers and Fresh Bourbon developed side
by side, various sources have made different claims about who came first.”

“If a defendant makes a literally false statement, the
defendant can identify no possible framing in which one could consider the
statement true.” [This is an overstatement—we can always imagine secret
definitions that make a statement true.]  By contrast, a misleading statement “requires
a reader to engage in some mental processing to determine its truth or falsity.”
[Also wrong: the whole point of falsity/misleadingness is that the reader does not
know the truth by way of the statement. A misleading statement requires some inference
that leads the reader to a false conclusion; the mental processing is the
process of determining what the statement is saying.] “If, for
example, an ambiguous statement is true under one interpretation but false
under another, the statement qualifies as potentially misleading (not literally
false). The same rule covers a technically true statement that lacks important
details.”

The court noted that other circuits have split over whether
the false/misleading line matters to materiality. Now here’s a line I like a
lot: Materiality “implements the statutory causation requirement because a
business is not ‘likely to be damaged’ from a claim that will not affect a
consumer’s decision on which product to buy.” The court declined to weigh in on
the split here (correctly recognizing that the Fifth Circuit had mistakenly cited
it as already having resolved the issue; indeed, the Fifth Circuit cited its
misunderstanding of other courts’ holdings as the reason it adopted a
separate-evidence-for-materiality requirement; the split emerged from a game of
Telephone).

Anyway, Brough Brothers bet it all on literal falsity. But
none of the categories of challenged statements met the “high” bar for literal
falsity.

First: The first to African Americans to “distill,”
“produce,” or “develop” Kentucky bourbon since the Civil War. For example,
Fresh Bourbon’s profile on X called the company’s bourbon the “first …
developed grain to glass by African Americans in the state of Kentucky.”

Brough Brothers’ expert conceded that it was “impossible to
verify” whether other African American distilleries existed before these two
companies because of the history of ignoring Black history. “At least with
respect to other bourbon makers, then, Fresh Bourbon’s statements are not ‘verifiable’
as false on this record.” So the alleged falsity was the message that Fresh
Bourbon made bourbon at its Lexington distillery before Brough Brothers made
bourbon at its Louisville distillery, when the truth was that Brough Brothers
obtained its distilling licenses and made its first batch of bourbon at its own
distillery in December 2020 before Fresh Bourbon completed the same tasks years
later. “If, then, the challenged statements unambiguously suggested that Fresh
Bourbon opened its physical location before Brough Brothers, they would likely
be literally false.” 

But there was another “reasonable” reading [applying the
correct standard rather than the “any reading” standard]: “that Fresh Bourbon’s
agents made its Kentucky bourbon first—no matter the physical distillery at
which it did so.” And that was true. Fresh Bourbon’s founders participated in
the distilling process at the Hartfield distillery starting in 2018. During
this time, Brough Brothers sourced their bourbon from Indiana and did not help
this producer in the distilling process. Under these circumstances, there was
ambiguity.

Brough Brothers argued that a party does not “distill,”
“produce,” or “develop” bourbon unless the party obtains licenses to open a
distillery.

But this technical claim has no
place in the “literally false” calculus—which requires a “bald-faced” lie. Fresh
Bourbon’s use of these verbs does not meet that high standard. In ordinary
language, one would naturally say that a party distilled or produced bourbon
when the party put the raw materials into a still and took the other steps
necessary to create the alcoholic beverage at the end.… These verbs also would
remain accurate even if the party lacked a license.

The legality claim thus “conflicts with the ordinary
understanding of the words.” And the facts showed that Fresh Bourbon’s team did
more than buy bourbon on Hartfield’s license; they physically participated in
the distilling.

Second: “[C]onsidered to be the first black-owned distillery
in Kentucky.” This phrase came from the Kentucky Senate’s resolution praising
Fresh Bourbon in February 2020, to which Fresh Bourbon’s website links. Brough
Brothers argued that it opened its Louisville distillery before Fresh Bourbon
opened its Lexington one, making this literally false.

But there was no evidence that Fresh Bourbon itself ever
claimed to have opened the first African American-owned distillery in
Kentucky. That the Kentucky Senate “considered” it to be the first, even if misleading,
wasn’t literally false. Also, “distillery” could mean different things in
different contexts. Although both dictionaries and Kentucky law define the term
as meaning a place where distilled spirits are made, “consumers do not
necessarily flip open a dictionary or check statutes when evaluating products.”
And Fresh Bourbon introduced evidence that companies often call themselves a
“distillery” even when they are “having a spirit bottled for” them by others. Brough
Brothers itself registered the name “Brough Brothers Distillery” in 2018—years
before it opened its physical location. The resolution itself suggested that
this was how the Kentucky Senate used the term, because it stated elsewhere that
Fresh Bourbon had “announced that they plan to build” a physical distillery in
Lexington. “[I]t would have made little sense for the resolution to refer to
Fresh Bourbon’s (unconstructed) venue as the first.” Under the understanding of
“distillery” that means a company that sells bourbon, Fresh Bourbon sold
Kentucky-made bourbon while Brough Brothers still sold Indiana-made bourbon, so
that was true.

Brough Brothers argued that Fresh Bourbon drafted the resolution
and was thus responsible for it, but the Senate didn’t use the language that
they drafted, which didn’t include the challenged statement. Thus the court
didn’t resolve the question of whether a state Senate resolution could be
attributed to a private party for Lanham Act purposes.

Likewise with other claims; the Senate resolution also said
that Fresh Bourbon “produces bourbon in the state of Kentucky with an African
American Master Distiller, the first in Kentucky since slavery[.]” Brough
Brothers argued that this statement was literally false because the putative
master distiller lacked the qualifications: “20+ years of experience operating
a distillery,” according to its expert. The putative master distiller “worked
full time at a bank and merely had an interest in bourbon as a hobby before he
took the job with Fresh Bourbon.” But the record showed that whether a producer
qualifies as a “master distiller” was opinion not fact; as one witness said,
the term is “more of a symbol” that some distillers coined in their marketing
to become “rock stars with the bourbon people.” He testified that there is “no
set experience level” or “no set anything” for that matter; the claim that a
master distiller must have 20 years’ experience would disqualify Brough
Brothers’ own master distiller. Brough Brothers’ expert conceded that it
“[b]asically” boils down to “a matter of opinion,” which is fatal to a Lanham
Act claim.

The court also declined to hold that these statements added
up to falsity by necessary implication. Unfortunately casting doubt on whether the
circuit actually recognized the doctrine, it understandably refused to “combine
statements from different sources into one ‘overall marketing scheme.’” Context
is vital, but “we have never treated every advertisement that a business has
ever made as the relevant ‘context.’” Even considered together, however, the
challenged statements were still ambiguous.

from Blogger https://tushnet.blogspot.com/2026/04/ca6-interprets-literal-falsity-narrowly.html

McKeon Rolling Steel Door Co. v. U.S. Smoke & Fire Corp.,
2026 WL 865699, 1:23-cv-8720 (ALC) (S.D.N.Y. Mar. 30, 2026)

McKeon sued defendants for false advertising under NY and
federal law. I’m ignoring the trade secret counterclaim.

McKeon and USS&F compete in the market for commercial
and special purpose safety assemblies, focusing here on fire shutters that
close openings in buildings and block the passage of flames and gas in the
event of a fire. Fire shutters are installed in public buildings, including
hospitals, schools, and airports; they descend from ceilings if there is a
fire. Building codes throughout the United States require that fire shutters be
tested and certified by UL 10B Standard for Safety.

Defendant Guardian tests products, sometimes with
third-party help; once it deems a product certified, it posts that to its
website. Once the products at issue were deemed “certified” by Guardian, defendant
USS&F posted the certification information on its publicly accessible
website.

They argued that the statements were literally true because USSF’s
products were tested by a third party, a certified testing agency; the tests
were witnessed by Guardian, and Guardian issued certifications that the
products were UL 10B certified.

McKeon argued that, even though the products stated they
were UL 10B certified, they were not properly certified. McKeon had obtained
what defendants deem “confidential test reports” and interpreted the results to
determine whether the products should have been certified to UL 10B standard. McKeon
argued that it was bringing an establishment claim, by which it sought to prove
that “the Test Reports do not support the proposition for which they were
cited; namely, that the subject Products meet the UL 10B certification
requirements.”

The court found summary judgment appropriate, because this
wasn’t a case where the claim was “tests prove X,” but rather “this product is
accredited by a third party.” And that was true. The court found that cases
allowing challenges to the reliability of claim-supportive testing were about
protecting consumers against unfounded superiority claims. Here, there was no
superiority claim, so there could be no establishment claim. [This distinction
seems wrong to me, even if summary judgment is correct on these facts.
Certainly statements that “tests prove” a monadic claim (e.g., treats headaches)
or an equivalence claim (as good as) should also be able to be falsified.]

Instead, the court looked to Board.-Tech Elec. Co. v. Eaton
Corp., 737 F. App’x 556 (2d Cir. 2018), which rejected a challenge to whether a
competitor’s light switches should have actually been certified by the UL.
“Without any indication that UL decertified the defendant’s product—or
(perhaps) that the defendant’s product had materially changed since
certification—there would be no plausible allegation of a false statement.” Here,
McKeon conceded that it didn’t have a certifier re-test the products at issue,
or provide evidence from a testing agency that the products didn’t meet the standard,
or provide evidence that there was in fact no accreditation. Thus, the statements
were literally true.

from Blogger https://tushnet.blogspot.com/2026/04/challenge-to-whether-certification.html

 Cellco Partnership v. T-Mobile USA Inc., 2026 WL 867129, No. 26-cv-0972 (LAK) (S.D.N.Y. Mar. 30, 2026)

Verizon sued T-Mobile for false advertising and the court granted a preliminary injunction, finding that T-Mobile’s claims that switchers could “Save Over $1,000” were likely false. As the court explains:

The cellular service industry is dominated by three large providers that fiercely compete to wrest customers from each other and to attract new ones. Price (or perceived price) is among the most important subjects of competition. Much provider advertising seeks to induce competitors’ customers to “switch” to the advertising provider. It often does so by claiming that the advertiser’s service is the cheapest.

The court agreed that the new campaign compared apples to oranges.

Verizon’s pricing strategy allows customers to customize their plans by adding optional “perks,” bundled together and offered at a discount compared to what the selected services (e.g., HBO and Netflix) would cost individually.

T-Mobile, by contrast, includes some benefits, such as a smaller, select set of streaming services, for no or little additional cost. It also includes T-Satellite, a network of low-orbit satellites that provide cellular service in parts of the United States that otherwise are unserved by terrestrial cellular networks. (T-Satellite is available to customers of other service providers, but few Verizon customers buy it.)

Previously, Verizon challenged T-Mobile’s “Save Up to 20%” campaign before the NAD, which recommended that “T-Mobile discontinue the challenged claims” because (a) “consumers are not likely to expect the value of ancillary benefits to be included in a savings comparison,” and (b) the terms that would enable a customer to save 20 percent were “not clear and conspicuous and further contradict[ ] the message of the broad comparative savings claim.” The NARB on review upheld that recommendation in part because “many reasonable consumers will conclude that the promoted savings is based on the cost of the wireless plans without any adjustments for additional benefits.” On January 22, 2026, the NARB found that T-Mobile still had “not made a bona fide attempt to” comply with aspects of its decision.

Instead, the “Save Over $1,000” campaign features claims that customers can save over $1,000 per year by switching from Verizon’s Unlimited Ultimate Plan or AT&T’s Unlimited Premium Plan to T-Mobile. This campaign tells customers that they can “[s]ave on streaming, satellite, and more benefits the other big guys leave out.” The fine print reads:

Savings vs. comparable plans at AT&T and Verizon plus the costs of optional benefits; plan features and taxes and fees vary …. With 3+ lines of Better Value Plan, 3+ new lines & 2 eligible ports or 3+ lines & 5+ years on T-Mobile postpaid plan required. Qualifying credit [required].

T-Mobile’s online calculator shows the a bunch of purported monthly cost comparisons between T-Mobile’s Better Value Plan and Verizon’s Unlimited Ultimate Plan, where services are listed as “included” through T-Mobile but extra through Verizon. Adding up the cost comparisons, T-Mobile’s calculator purports to show that its Better Value Plan costs customers $143 per month, whereas Verizon’s supposedly comparable Unlimited Ultimate Plan costs customers $260 per month, or a difference of $1,404 per year.

Verizon also has claimed in ads that its service is cheaper than those of its competitors. Until at least the T-Mobile campaign’s launch, Verizon offered its own interactive calculator that customers to toggle adding to their plan certain features, such as streaming bundles, that Verizon offers and then purported to show what a T-Mobile or AT&T customer purportedly would have to pay to obtain those same benefits.

Verizon’s core objections were two: “First, the campaign compares the promotional rate T-Mobile charges to new customers to Verizon’s nonpromotional rate, ignoring Verizon’s promotional rate of $175 per month. Second, it attributes to Verizon the costs of ancillary benefits that T-Mobile includes in its plan without charging T-Mobile the costs of ancillary benefits Verizon includes in its plan.”

T-Mobile counterclaimed that Verizon was falsely advertising its own “Better Deal,” but didn’t move for a preliminary injunction.  

For likely success on the merits, only falsity and materiality were contested. First, the court found that the “Save Over $1,000” campaign “necessarily implies” that customers can save over $1,000 per year on a comparable plan by switching from Verizon’s Unlimited Ultimate Plan to T-Mobile’s Better Value Plan. “That message is false. Instead of putting comparable plans side-by-side, T-Mobile engages in an apples-to-oranges comparison at every step of the way.” First, the undisclosed comparison of Verizon’s nonpromotional rate ($195 per month) with T-Mobile’s own promotional rate ($140 per month). It attempts to define away that problem by arguing that “$140 for three lines is the standard rate for T-Mobile’s Better Value [P]lan” was “akin to comparing an apple to an orange.”

T-Mobile argued that the comparison was reasonable because it “targets existing Verizon customers,” who supposedly would not be “eligible for Verizon’s promotional price.” “But nowhere in the campaign does T-Mobile indicate that it is speaking to only the subset of Verizon customers who are paying Verizon’s nonpromotional rate.” Verizon’s promotional rate lasts for three years, and using the term “switch” didn’t convey any limit on the claim.

Then, T-Mobile compared the price for each of three streaming services that it includes at little to no additional cost in its Better Value Plan to the full cost of each of Verizon’s bundles that include the relevant streaming service. “Yet, T-Mobile neither credits Verizon for the value of the additional services included in Verizon’s bundles nor charges T-Mobile for those services, which are not available through the Better Value Plan.” It also charged Verizon for the “sticker price” of T-Satellite too, even though T-Mobile controls how much to charge Verizon customers for T-Satellite and even though most Verizon customers do not purchase T-Satellite.

It was not enough that T-Mobile disclosed its inputs and methodology, because the plans were different, but T-Mobile portrayed them as “equivalents in all ways other than in price.” This is literally false by necessary implication because it portrays “non-comparable products … as otherwise equivalent (except for the superior or inferior aspect being illustrated in the advertisement).” “Accounting for Verizon’s promotional rate and the ancillary streaming benefits it offers in its bundles that T-Mobile does not and removing from Verizon’s side of the figurative ledger the cost of T-Satellite, the supposed savings fall to a mere $228.84 per year.”  

Finally, the campaign’s price guarantee of five years applied to only “the cost of voice, data, and texting on T-Mobile’s cellular network,” or “the price of the rate plan,” not the ancillary streaming benefits or T-Satellite. This was a “crucial fact” but disclosed “at best indirectly, in fine print, and only on some advertisements.” That didn’t change “the unmistakable message of the campaign that a customer can save over $1,000 per year by switching to T-Mobile.” That was literally false.

Materiality: “Claiming a price difference between two purportedly comparable products is material. Indeed, T-Mobile’s claim of immateriality is nonsense for the obvious reason that it is inconsistent with its decision to launch the campaign and with its repeated arguments that enjoining the campaign would harm its ability to communicate the value of its services and compete in the cellular service market.”

Verizon was thus entitled to a presumption of irreparable harm that was not rebutted by delay. The ongoing dispute over a different ad campaign didn’t affect the fact that Verizon “promptly” filed suit after the “Save Over $1,000” campaign launched.

Nor did Verizon’s allegedly bad conduct in substantially similar advertising affect the balance of equities. Even assuming that Verizon’s “Better Deal” campaign was false, Verizon took down its competitive grid before suing. Its position “must be judged by the facts existing as they were when this suit was begun, not by the facts existing in an earlier time …. Conduct which came to an end prior to the events which are in issue cannot constitute an unclean hands defense.” Even if that were not the case, it still would be “better to remedy one wrong than to leave two wrongs at large,” “particularly where the harm damages not just the parties but also the public.” The counterclaim was the right place to address Verizon’s bad behavior.

from Blogger https://tushnet.blogspot.com/2026/03/court-enjoins-t-mobiles-save-over-1000.html