1H 2021 Quick Links, Part 4 (Advertising, Contracts, & More)

Advertising/E-Commerce

* Ariix, LLC v. NutriSearch Corp., 2021 WL 221878 (9th Cir Jan. 22, 2021):

companies now pay so-called “influencers” to issue posts on social media touting their products or services. While such social media posts may not have the indicia of a traditional advertisement, there can belittle doubt that these paid posts are in fact advertisements…

Today, consumers face waves of advertisements amid a sea of product choices. To navigate the seemingly unending stream of advertisements, consumers often depend on independent reviews for candid and accurate assessments. But when someone falsely claims to be independent, rigs the ratings in exchange for compensation, and then profits from that perceived objectivity, that speaker has drowned the public trust for economic gain. Society has little interest in protecting such conduct under the mantle of the First Amendment….

The Guide does include what appears to be fully protected speech: It has an “informational” part that describes the benefits and science of nutritional supplements. But the commercial parts of the Guide — specifically, the allegedly rigged ratings of nutritional supplements — are not so connected to this informational section to lose their commercial character. On the contrary, they seem easily separable.

* Jackson v. Robinhood Markets, Inc., 2021 WL 2435307 (N.D. Cal. June 15, 2021)

Robinhood used Ice Cube’s picture and paraphrase of a line from his song to illustrate an article about market corrections. That illustration does not suggest that the plaintiff endorsed Robinhood (even if Robinhood uses celebrity endorsements (including Nas and Jay-Z) to promote its actual products, as the plaintiff alleges). The plaintiff characterizes the newsletter as an advertisement, not a newsletter. But he attaches the newsletter, which is demonstrably not an advertisement. No case establishes Article III standing under similar circumstances. To the contrary, the cases (cited above) all involve explicit endorsements. Similarly, and as Robinhood contends, the plaintiff does not have statutory standing under the Lanham Act because he did not allege how Robinhood’s use of his identity created the misapprehension that the plaintiff sponsored, endorsed, or is affiliated with Robinhood.

* Lona’s Lil Eats, LLC v. DoorDash, Inc., 2021 WL 151978 (N.D. Cal. Jan. 18, 2021). Restaurant’s lawsuit against DoorDash survives motion to dismiss.

* New Yorker: Dude, Where’s My Couch?

Contracts

* Express Lien, Inc. v. Handle, Inc., 2021 WL 2476853 (E.D. La. June 17, 2021):

As evidence of Nadolny’s acceptance of Express Lien’s Terms of Use, Plaintiff has supplied this Court with its “Terms of Use Acceptance Logs” that represent that Nadolny accepted the Terms of Use twice: once on December 4, 2018 under the user “JBN Supplier” and email address j.b.nadolny@gmail.com; and once on January 28, 2019 under the user “Abbot Construction” and email remodelergroup@gmail.com. To authenticate the logs, Plaintiff provides the Affidavit of Hisham Younis, Express Lien’s Chief Technology Officer, wherein Younis swears that the logs are gathered pursuant to the normal course of business and that the logs confirm “[t]hat a party affirmatively accepted Express Lien, Inc.’s Terms of Use” and “[c]ertain information about the party and the Terms acceptance.”

To rebut Plaintiff’s evidence, Defendants advance two primary arguments. First, Defendants argue that:

[T]he mere act of visiting a website with immediately accessible articles and information about mechanics liens during the course of Mr. Nadolny’s research about mechanics’ liens does not itself establish that Mr. Nadolny knew about or had notice of each of the website’s terms of use or manifested assent to those terms.

Defendants, however, provide no evidence to suggest that visitors to the non-public portions of the Levelset Platform “automatically” accept the site’s Terms of Use or that Nadolny was otherwise unaware of the Terms. Moreover, the Court finds Defendants’ argument to this point contradicted by Plaintiff’s evidence that Nadolny accepted the Terms of Use only twice—once under each account—but visited the website “at least 147 times, viewed 177 unique and distinct pages…[and] downloaded 71 unique forms.”

Second, Defendants argue that Hashim Younis’s Affidavit is itself invalid because Younis did not personally collect the information in the Terms of Use Acceptance Logs and testified that the produced Excel Sheet was not automatically generated. Federal Rule of Civil Procedure 56(c)(4) provides that “[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” The Federal Rules, therefore, do not require that the affiant have personally collected or personally typed the information. As Younis has personal knowledge that the logs accurately reflect Nadolny’s acceptance of the Terms of Use and that such records are kept in the ordinary course of business, Younis is a person through whom the logs could be admitted as evidence under the business records hearsay exception. The Court thus finds that Younis’s Affidavit sufficiently authenticates the Terms of Use Acceptance Logs.

* Kauders v. Uber Techs., 486 Mass. 557 (Mass. Sup. Ct. Jan. 4, 2021). Citing Cullinane, the court held that Uber’s arbitration clause is unenforceable:

The notice of the terms was not reasonable for several reasons. Importantly, the interface did not require the user to scroll through the conditions or even select them. The user could fully register for the service and click “done” without ever clicking the link to the terms and conditions….we do not consider the notice provided by this interface reasonable. In such a transaction, a user may reasonably believe he or she is simply signing up for a service without understanding that he or she is entering into a significant contractual relationship governed by wide-ranging terms of use. Instead of requiring its users to review those terms and conditions as it appears to do with its drivers, Uber has designed an interface that allows the registration to be completed without reviewing or even acknowledging the terms and conditions. In these circumstances, Uber has failed to show that it provided the plaintiffs with reasonable notice of the terms and conditions.

Reminder: courts sometimes demand that consumers click twice to form a contract.

Employment

* Crawford v. Mangos Caribbean Restaurant LLC, 2020 WL 10056405 (N.D. Ga. July 30, 2020): In the context of a nasty text message thread between employer and employee, three “fire” emojis could act as constructive termination.

* Reuters: In U.S. creator economy boom, big tech battles for online talent

* WSJ: Many Companies Want Remote Workers—Except From Colorado

Miscellaneous

* PetaPixel: Climbers Banned From Mt. Everest for Faking Photo

* Wired: How Covid Gums Up the Court System

* Les Giblin LLC v. La Marque, 2021 WL 1997376 (D. N.J. May 19, 2021):

Plaintiff next argues that La Marque’s activities on online social media platforms – Twitter in particular – suffice to establish jurisdiction based on apparent online engagements with New Jersey residents. Once again, the Court disagrees. None of the posts on which Plaintiff relies indicates that La Marque directed his activities towards New Jersey. First, of the posts Plaintiff claims were expressly aimed at New Jersey, most do not actually concern La Marque’s own conduct, but instead feature only the unilateral activity of people in New Jersey who independently chose to engage with otherwise general public comments made by La Marque by either replying to or “retweeting” them. Second, although Plaintiff does identify several posts in which La Marque references Skill With People, including several in which he appears to solicit or direct people to his own website to purchase the book (which Plaintiff alleges was only available for purchase as an unauthorized audio recording rather than as a physical hard copy), there is no indication that these general promotions of the book or solicitations of his own website to purchase the book were ever targeted at New Jersey or engaged with by New Jersey residents.