1H 2021 Quick Links, Part 4 (Advertising, Contracts, & More)
* 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?
* Express Lien, Inc. v. Handle, Inc., 2021 WL 2476853 (E.D. La. June 17, 2021):
To rebut Plaintiff’s evidence, Defendants advance two primary arguments. First, Defendants argue that:
* 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:
Reminder: courts sometimes demand that consumers click twice to form a contract.
* 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
* 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.