Touting a paid-for report as if it were independent could be false advertising; public webpage was “advertising”

Pegasystems, Inc. v. Appian Corp., — F.Supp.3d —-, 2019
WL 6560120, No. 19-11461-PBS (D. Mass. Dec. 5, 3019)
Undisclosed sponsorship of a critical report from an
apparently neutral source leads to a Lanham Act/state false advertising claim,
which the court here refuses to dismiss. [Side note: I am unduly charmed by the
business name Pegasystems. Well done, namers!] Also, just as you don’t have to show how many people watched an ad on national TV to show that it was “commercial advertising or promotion,” so too with a public page on the advertiser’s own site.
In May 2019, defendant BPM.com published a report, “Market
Report: Analysis of Process Automation Investments and Total Cost of Ownership
(TCO): Appian, IBM, and Pega.” Those three compete to make “business process
management” software that helps create custom apps for business processes. BPM.com
holds itself out as “the leading destination for research, white papers and
community forums on BPM and process automation.” Appian commissioned BPM.com to
publish the accused report, though this wasn’t disclosed to the public, and
Appian highlighted the results on its website.
The Report provides its methodology on the first page: BPM.com
sent out an online survey and received 500 responses. It then “eliminated any
non-compliant entries, such as those from organizations deemed too small or
from firms engaged in the sale, development, or specific services involved with
this type of software.” It conducted follow up interviews to ensure that the
surveyed customers were “verified end user organizations,” leaving 104
“verified projects,” of which 17% used Appian and 10% used Pega. Omitting some
specifics, the Report concluded “Appian was distinguished as the clear leader”
based on its low total cost of ownership combined with faster time to market.
Appian’s website allowed users to get the report, which it
categorized as a “Whitepaper.” It summarized the Report as follows: “Through
approximately 500 responses, BPM.com found that on average: • Appian customers build complete enterprise solutions 5
times faster • Appian customers use 79% fewer resources • Appian has more than
2x customers who’ve reached ROI in 2 years.” 
It also created a webpage, “Appian vs Pega: Discover Why Enterprises
Choose Appian,” with similar claims and linked to the report with a hyperlink
labeled “READ THE 2019 BPM.COM REPORT.”
Without deciding that Rule 9(b) applied to Lanham Act false
advertising claims, the court found that Rule 9(b) was satisfied.
Appian/BPM.com were the who; the survey results and associated statements were
the what; the Report/webpages were the where; and the when was “continuously.”
False advertising: Appian argued that Pega failed to plead
sufficient dissemination to be commercial advertising or promotion.  Widening a smallish split on this issue—in
the right direction, I think—the court found that it was enough to “target a
class or category of purchasers or potential purchasers, not merely particular
individuals.” “When Appian posted the Report’s findings on its website, it ‘target[ed]
a class … of purchasers.’”
Falsity/misleadingness: There were two misrepresentations:
(1) failure to disclose the material relationship between Appian and BPM while presenting
the Report as a neutral “white paper”; (2) presenting results as market
averages without reflecting Pegasystems’ actual performance in the marketplace.
Appian argued that the Report disclosed its methodology and didn’t claim to
offer “generally applicable” comparisons between Pegasystems and Appian, thus
wasn’t false or misleading.
First, it was plausible that the omission of the
relationship between Appian and BPM.com rendered the representations in the
Report and on Appian’s website false or misleading. Even without an explicit
statement that the Report had been independently developed, that was the
necessary implication of the presentation. Appian identified BPM.com as the
Report’s author and then described BPM.com as “a leading market research
group.” BPM.com states in the Report that its purpose was to “understand how
automation software is being used.” “Nowhere in the Report or Appian’s
statements promoting it would a reader learn that Appian was involved in the
Report’s production — they would likely be left with the opposite impression.
The allegation that the Report and website, when viewed in their entirety, are
at the very least misleading is plausible because their description conveys
neutrality.”
In addition, it was plausible that Appian made a literally
false statement when it wrote that BPM.com reached the Report’s results “Through
approximately 500 responses.” Only 104 were verified and analyzed and, of
those, only 27% of respondents used either Pegasystems or Appian. The website claim
about sample size was literally false.
If this was just misleading, Pega would need to show that “a
substantial segment of [the Report’s] audience” was actually deceived. However,
a plaintiff does not need to “identify the particular consumer survey that will
be used to support its allegations to survive a motion to dismiss.” And it had
plausibly alleged actual confusion. It alleged that “[c]ustomers have informed
Pegasystems that Appian has distributed or drawn their attention to the Report.
These customers have been confused or deceived by the false and misleading
conclusions of the Report[.]” That was enough for Twiqbal.
Injury: Pegasystems alleged that defendants’ statements had
been disseminated to “major customers for which Appian and Pegasystems
compete,” representing “prospective revenue streams in the millions of
dollars.” It was plausible that an explicit unfavorable comparison between
Appian and Pegasystems was likely to divert those customers from Pegasystems to
Appian.
False advertising under Mass. Gen. Laws ch. 93A survived
too. Appian argued that the challenged conduct did not occur “primarily and
substantially” in Massachusetts, as required by state law. Appian argued that,
“where the relevant deceptive conduct involves communications between a
defendant and third parties, courts have said that the ‘center of gravity’ lies
in the state in which the communications occurred (i.e., were ‘published’).” This
was an issue not suited for resolution on a motion to dismiss. It was enoguh to
allege that the plaintiff was based in Massachusetts, the injury occurred in
Massachusetts, one of the defendants is in Massachusetts and another has an
office there, and the document at issue was created there.
However, the complaint didn’t state a claim for
Massachusetts common law false advertising or unfair competition. Common law
false advertising requires fraud upon which a plaintiff relied to its
detriment; Pega was the wrong plaintiff for that claim. Likewise, unfair
competition is about consumer confusion as to source, which wasn’t alleged
here.
Commercial disparagement/injurious falsehood claims survived,
even though commercial disparagement covers only falsity and not misleadingness
and also requires actual malice (but not that the statement be made in
commercial advertising/promotion).  It
was plausible that there was falsity here. Although a representation in a study
is not false simply because the study’s “design … was flawed” where the
disputed “article plainly acknowledged possible flaws and limitations with the
methodology that was used” and the plaintiff did not allege that the author
“inaccurately interpreted or reported the collected data,” the situation was
different here.  Pegasystems alleged that
BPM.com “manipulated its selection of responses and projects in order to create
a sample favorable to Appian and detrimental to Pegasystems.” If so, it was
reasonable to infer that the Report’s unfavorable statements about Pegasystems
were based on skewed or inaccurate data and so were false. That would also
satisfy the actual malice requirement.
Footnote: BPM.com might have separate defenses but did not
assert them here.

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