handful of bad Amazon reviews make Energizer’s false advertising claims plausible

Energizer, LLC v. MTA Trading, Inc., 2021 WL 2453394, No.
20-CV-1583 (MKB) (E.D.N.Y. Jun. 16, 2021)

Along with breach of contract and tortious interference
claims, Energizer alleged that MTA falsely advertised by selling batteries with
Energizer’s mark and then by fulfilling orders with products different from
those advertised and shipping batteries to consumers that were “used, aged, or
tampered-with.” In seven consumer reviews quoted in the complaint, the
reviewers report that batteries sold by the relevant account did not work or
were not as advertised.

Defendants argued that Energizer failed to state a false
advertising claim because it relied on seven pieces of negative feedback
without explaining whether they were representative, and didn’t allege details
about how the batteries were advertised, such as whether they disclosed
repackaging or advertised an expiration date (two subjects that came up in the
negative reviews). It argued that there are plausible alternative explanations
for the negative reviews, including that Amazon shipped and fulfilled the
products (and might well have sent them from another seller, which does seem to
be a thing with Amazon sales) or that competitors were leaving fake negative
reviews. That’s a fascinating Twiqbal issue, it seems to me: at what point do
Amazon’s problems become part of common sense?

The court found the Lanham Act allegations adequate.
Energizer alleged that defendants advertised their batteries as “new,” and also
advertised the batteries in certain quantities, but instead, the batteries were
not new and were inoperable or had insufficient charge, and the shipments sent
to consumers were short of the quantities they ordered. That was specific
enough.

The additional arguments might work, but not on a motion to
dismiss.

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