Angie’s List Defeats Lawsuit Over Alleged “Pay-to-Play” Rankings–Strauss v. Angie’s List

Strauss spent over $200,000 on Angie’s List advertising over about a decade. After he stopped advertising, he claimed Angie’s List treated him poorly, including deindexing him from its search, then degrading his positioning in search results, and other malfeasance. All of this behavior allegedly contravenes Angie’s List’s marketing about the editorial purity of its directory and search results. He further alleges that Angie’s List falsely discloses to “consumers who search Defendant’s website that: (1) Plaintiff Strauss has “no rating or [consumer] reviews”; (2) has not met certain “criteria” to be listed on Defendant’s website; and (3) has no ‘local offers’ to extend to consumers.”

Lanham Act False Advertising. With respect to the website disclosures about Strauss’ business, the court says that Lexmark opened up Lanham Act standing to non-competitors. However, Lexmark didn’t change the requirement that the claims at issue constitute “commercial advertising or promotion” (as defined in the seminal Gordon & Breach ruling, incorporated into the 10th Circuit’s Proctor & Gamble v. Haugen case). Angie’s List’s disclosures didn’t meet that standard because they “cannot be construed as having been made for purposes of influencing consumers to buy Defendant’s goods or services.” The fact that the disclosures might have redirected consumers to Strauss’ competitors doesn’t change that outcome. The court rejected the plaintiff’s analogy to a 9th Circuit case, TrafficSchool v. eDriver, because (1) “there is no contention that Defendant offers tree care services of the kind offered by Plaintiff Strauss or that Plaintiff Strauss offers goods or services similar in kind to those offered by Defendant,” and (2) Lexmark may have superseded that case.

Statute of Limitations. The court defines the Lanham Act laches standard to parallel Kansas’ 2 year statute of limitation for fraud. Most other claims were based on activity from 2013 or before, well outside this time period.

This case reminded me of Demetriades v. Yelp, which involved false advertising claims over Yelp’s description of its review filter, and Levitt v. Yelp, which alleged that Yelp punitively cooked the ratings and reviews for non-advertisers. We still have no resolution to the Demetriades case; I checked the docket this morning, and 6+ years after filing, the court will hear summary judgment motions next month. In this case, the statute of limitations wiped out the most analogous (and most interesting) allegations, so we don’t really get answers to the perennially interesting question about when review sites can be liable for allegedly enforcing pay-to-play rules. Instead, the case devolved to look more like the YouTube remove-and-replace cases, where the video uploaders claimed that YouTube misled viewers about why the videos were removed. The YouTube remove-and-relocate cases mostly failed for other reasons, but they all failed like this one did.

Case citation: Strauss v. Angie’s List, Inc., 2018 WL 5722561 (D. Kan. Nov. 1, 2018)