statements about legality of service were factual/falsifiable

Allied Servs., LLC v. Smash My Trash, LLC,  2021 WL 3354839, No. 21-cv-00249-SRB (W.D.
Mo. Aug. 2, 2021)

Allied, aka Republic, “provides waste and recycling services
to business and residential customers in the Kansas City metropolitan area.” It
supplies dumpsters and open top roll-off waste containers to its customers.
This equipment is designed and constructed only to collect a customer’s
ordinary waste. Their agreements with customers provide that the equipment is
Republic’s property and that the customer is liable for any loss or damage to

Smash provides mobile waste compacting services in the
Kansas City metropolitan area using “Smash Machines,” 25,000 pound trucks with
hydraulic booms and three-ton spiked, rotating metal drums. (Awesome.)

Republic alleged tortious interference, trespass/conversion,
and false advertising claims.

Lanham Act false advertising: Smash’s website FAW said:

Will my waste company let me Smash my trash? It’s not their
waste, it’s yours. Well established legal doctrines protect your rights to
manage your waste while under your control at your facility. This includes the
right to Smash your trash.

First, the complaint adequately alleged that the challenged
statements weren’t merely opinion. “Statements about the status of a case or
one’s … property rights are not necessarily subjective opinions and are
generally verifiable … [t]hat a court of law need ultimately determine the
truth or falsity of these statements does not render them ‘opinion’

Second, Republic adequately alleged literal falsity by
alleging that Missouri law does not recognize this purported “right.” Republic
also alleged falsity by necessary implication: Republic’s customers were
allegedly “led to believe that they are legally entitled to utilize Republic’s
containers to have their waste compacted by Smash’s mobile compaction service.”

Materiality: It was sufficient to allege that “Smash has
falsely led Republic’s business customers to believe that the company is both
aware of and has no objection to Smash’s misuse of the Equipment and also that
Republic’s customers nevertheless have the unfettered ‘right to Smash their
trash’” along with allegations that “Republic’s business customers have
contacted it to cancel and amend Agreements, and in some instances, they have
refused to follow Republic’s direction that the Equipment may not be used by
Smash for its mobile waste compaction services.”

Again, it was adequately alleged that the statements “caused Republic’s
customers to breach their Agreements, have resulted in the denial of access to
its Equipment, have interrupted regularly scheduled hauls, have led to damage
to its containers, and have harmed its reputation with its customers.” Only
that last one is traditional false advertising damage—the others don’t really
seem to fall within the usual zone of interests—but ok!

from Blogger

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