AD-ttorneys@law – Aug. 3, 2022

Alerts / August 3, 2022

In This Issue:

Will Coppertone Get Burned for Its Labels?

Consumer class action alleges sunscreens are all the same

It’s Not Much, But It’s Something

Through the years, Coppertone – the sun protection products brand owned by Beiersdorf Inc. – has demonstrated an admirable, sometimes prescient, sensitivity to marketing missteps. Take, for instance, its original suntan lotion logo – the profile of a Native American chief with the tagline “Don’t be a paleface.” 

Coppertone replaced that image in the ’50s and introduced the now-iconic girl/puppy combo. It was a commendable early change of direction for its time – positively enlightened compared to certain organizations that have retained racist stereotypes of Native Americans until quite recently. Even in the case of the girl and the puppy, the company has demonstrated a capacity for adapting to the changing times, redrawing the logo to make the image less revealing. 

(History of Marketing Sidebar – the girl/puppy logo was designed and created by artist Joyce Ballantyne Brand in the ’50s. According to the New York Times, the model was her then-3-year-old daughter, Cheri, and the pup was based on her neighbor’s dog. According to the New York Times, Brand used her daughter as a model because she “worked cheap.”)

This Block Don’t Run 
Will Coppertone demonstrate the same agility in response to its latest marketing challenge? 

This one doesn’t involve the logo. Instead, it challenges the informational side of product packaging. In a consumer class action recently filed in the District of Connecticut, plaintiff Tonya Akes, a Fresno, California, citizen, has sued Coppertone’s parent, Beiersdorf, over a purchase of the company’s “Sport Mineral FACE” sunscreen. 

What’s the issue? According to the complaint, Coppertone markets its “Sport Mineral” and “Sport Mineral FACE” lines with nearly identical packaging and labeling. The packaging for the FACE line, however, includes the additional express claims that the product “Won’t Run into Eyes” and is “Oil Free” – characteristics Ms. Akes claims “lead reasonable consumers to believe that the Sport Mineral FACE lotion is specifically designed for the face.”

According to Akes, this reasonable belief is further supported by the pricing structure. The FACE product bottle is sold at a volume half the size of the standard-issue product but for twice the price. Customers, therefore, assume that the FACE line is specially formulated for facial use. 

The Takeaway 
According to Akes’ complaint, “Coppertone Sport Mineral FACE is not specially formulated for the face. Nor is it more expensive to manufacture.” Akes alleges that Coppertone “is tricking consumers into thinking they are buying sunscreen lotion specially formulated for the face, when in reality, they are just buying Defendant’s regular Sport Mineral sunscreen in a smaller – and far more expensive –bottle.”

On behalf of a proposed class, she’s suing for the violation of seven states’ consumer protection acts and the California’s Unfair Competition and False Advertising laws as well as unjust enrichment. 

As the complaint was recently filed, Coppertone has not yet had a chance to respond. But we’re curious – how will Akes prove damages when she and the other class-member customers knew the price they were paying for the product and the ingredients in the bottle? Other hurdles include convincing a judge that there was some sort of duty to price the FACE product at the same cost per ounce as the body version, particularly when there may have been packaging differences or other benefits of the FACE product beyond the formulation.

Comedy Group Wins TCPA Suit

Unsolicited texts, however, remain unfunny 

The History

Smosh, the improv sketch-comedy collective, has been producing original comedy content for almost 20 years. Their YouTube channel has 25 million subscribers, received more than 10 billion views, and has often topped the most-subscribed YouTube channel lists. [Warning: There’s tons of NSFW content sprinkled throughout their videos, so tread carefully.] Smosh also has its own website – – through which the comedy troupe sells branded merch.

Now, we admit, we might not be as hip as the kids when it comes to knowing about comedy. But if there’s one thing we know way too much about, it’s the Telephone Consumer Protection Act (TCPA) – a subject about which Smosh is just beginning to learn.

Blame the Kid!

The lesson came in the form of a consumer class action filed in the Eastern District of California last October. The named plaintiff, Kristen Hall, alleges that the cellphone she owned was pinged several times with text messages from Smosh offering discounts on their merchandise. 

The problem, Hall alleges, is that her phone number was on the National Do Not Call Registry, and she hadn’t consented to receive the messages at all. Moreover, the messages were aimed at her then-13-year-old son, whose data, Hall alleges, Smosh had “mined” and was exploiting for its marketing purposes. Accordingly, Hall sued Smosh and its parent company, Mythical Entertainment LLC, for violations of the TCPA and Texas state law. 

The Takeaway 

Unfortunately for Hall, it was her own allegations that led to the dismissal of her suit. You see, throughout her complaint, Hall essentially argued that while she was the subscriber and owner of the phone that received the unwanted messages, her son was the phone’s user, and the messages delivered to the phone were intended for her son. This, the court held, was sufficient to demonstrate that Hall did not have proper standing to bring the suit in the first place. 

As the suit was dismissed for lack of standing, the court did not reach any decisions on the actual merits of the case. 

So the takeaway turns out to be one of those too-clever-by-half sort of lessons that we like to share with laypeople – first lesson of being sued: make sure you’re being sued by the right plaintiff. 

Maybe not ha-ha funny, but ironic enough to get a chuckle.

Subscription Cancellation App Doesn’t Want To Let You Go

TINA finds Truebill’s cancellation program has an iron grip

Reality Bites

Remember irony? Velvet Elvis posters on your dorm room wall, air quotes, lounge music, a free ride when you’ve already paid …
When did irony die?
Well, here’s one last scrap of proof that you can no longer skewer mainstream expectations with a knowing wink. 


Meet Truebill. It’s self-described as “the money app that works for you,” and one of Truebill’s features is a subscription management service that allows users to itemize all those pesky subscriptions they’ve forgotten about and cancel the ones they don’t want or need. 

Useful, right? An app like this would help cut some underbrush out of your budget, perhaps even mitigate the nightmare of too many negative option offers. You could save a couple of hundred dollars a month. Hard to beat.

But you know very well that we wouldn’t even mention the service unless there were a hitch.

The Takeaway 

The hitch: Truebill’s anti-subscription service is itself a subscription service. And according to a recent expose from Truth in Advertising Inc. (TINA), Truebill’s cancellation service is really hard to cancel.

Although Truebill offers a free service, in order to have them identify and cancel subscriptions on your behalf, you need to fork over a monthly fee for the premium version. That monthly fee, however, is billed annually and is nonrefundable, which means even if you cancel after a few months, you’ve still paid a chunk of change you can’t get back. 

Another ironic feature: A link titled “How to Cancel” on Truebill’s website allegedly doesn’t actually tell you how to cancel Truebill’s service. Instead, it offers a list of links to “step-by-step explainers for how to cancel ‘any subscription.’” And the cherry on top of this sundae? Canceling a Truebill premium membership cancels only the service; it doesn’t delete one’s information. That requires a completely separate process!

So, to recap: A cancellation service for difficult-to-cancel services turns out to be a difficult service to cancel. 

In 2022 – the year in history most likely to be mistaken for a Philip K. Dick novel – there should be no surprise in that. 

Your mission, however, remains clear: Make cancellations of your services easy and quick. It’s only fair to your customers and, in the end, your business.

Fitness Guru Sues Fitness Guru

Tracy Anderson claims rival trainer ripped off confidential techniques

Origin Story
There are so many levels to the unfolding legal face-off between Tracy Anderson and Megan Roup that it’s hard to pick one theme to focus on. There’s a protégé-turns-on-mentor conflict – those are always fun. There’s also the interesting debate surrounding what sort of copyright protections are granted to dance, choreography and fitness routines. 

But for now, let’s review the background. The suit was filed by Tracy Anderson Mind and Body (TAMB), the corporate child of the eponymous fitness expert. Anderson was a former ballerina who, early in her career, gained weight that she couldn’t manage to shake off. After observing her then-husband, a pro basketball player, undergoing rehabilitation for a bad back, she was inspired by a “doctor who was attempting to ease the strain on the large muscle groups in athletes by strengthening the small, accessory muscles.” Using her dance and movement training, she built a method around this insight, and the Tracey Anderson Method was born.

Her business grew prodigiously, aided by early celebrity adopters like Gwyneth Paltrow and Madonna herself. She branched out from personal training to studio classes with TAMB-trained teachers to online and streaming classes – the popularity of which was accelerated by the COVID-19 pandemic, when everyone and their mother began using fitness apps from home. 

Obi-wan v. Anakin. Enter Megan Roup, another former dancer and creator of The Sculpt Society, a direct competitor to TAMB’s online offerings. In a complaint filed in the California Central District in mid-July, Anderson alleges that Roup worked as a trainer for TAMB from 2011 through 2017 – during which time she absorbed crucial, confidential information regarding TAMB’s methods and business practices. 

According to the complaint, confidential information included “nonpublic training materials and manuals, choreography transcriptions, and custom write-ups related to the performance and teaching of the TA Method”; “access to outlines of movement sequences and instructions related to performing each of the TA Method programs”; “the order, format, layout, structure, and organization of Anderson’s choreographed routines”; and “business practices and protocols, such as Anderson’s one-on-one customer consultation and intake methodology.”

Anderson alleges that the confidential information Roup obtained served as the foundation for The Sculpt Society’s class offerings, despite Roup’s having signed a trainer agreement and termination letter that forbade her from using or disclosing such information. Noting the relatively short period of time between when Roup left TAMB and when she launched The Sculpt Society, Anderson alleges that Roup leveraged Anderson’s celebrity relationships – taking photographs with Anderson’s celebrity clientele at Anderson’s facilities and then using the pictures on The Sculpt Society website as her own.”

The Takeaway 
Anderson is suing Roup for federal copyright infringement, Lanham Act violations, breach of contract and violations of the Unfair Competition Law of California – for allegedly using Anderson’s “secret sauce” to create The Sculpt Society’s overall approach. According to the complaint, “Roup took the Confidential Information, founded TSS with it, based TSS on it, and based the TSS Method on it. In doing so, Defendants have capitalized on years of Anderson’s research, development, and investment to enrich themselves at the expense and to the detriment of Plaintiffs.”

Anderson also accuses Roup of creating confusion regarding the origin of her method – “Defendants purposefully conceal Roup’s training from and association with [Anderson] from the public so that Roup can claim to be the original creator of the choreography movements, sequences, and routines that comprise the TSS Method.” 

Roup is further accused of copyright infringement for “regularly, repeatedly, and intentionally” publishing videos that copy “the choreography movements, sequences, and routines depicted in the [Tracy Anderson] Works; [their] organizational structure and format … and aesthetic elements depicted in [them].”

At the center of this high-energy, low-impact legal battle are interesting related questions. Will Anderson’s fitness routines be considered copyrightable choreography? Is every fitness routine considered a subset of dance or choreography? (Yoga poses, for instance, are not.) 

We don’t know about you, but we’ll be breaking out a pint of chocolate-chip cookie dough ice cream and waiting for the next developments in this case.

Check Out Our Latest Blog Posts
FTC and DOJ MOUs with NLRB Reflect the Administration’s Ongoing Focus on Restrictive Labor Relationships and the Gig Economy

Last week, the Federal Trade Commission (FTC) and the National Labor Relations Board (NLRB) announced that the agencies had entered into a new Memorandum of Understanding (MOU). The FTC press release touted the MOU as a big deal, stating that it would “bolster the FTC’s efforts to protect workers by promoting competitive U.S. labor markets and putting an end to unfair practices that harm workers.” The NLRB Press Release was a bit less definitive, describing it as “a partnership between the agencies that will promote fair competition and advance workers’ rights.” And this week, the Department of Justice (DOJ) Antitrust Division announced its own MOU with the NLRB.

What Even Is Ad Tech?

“What is ad tech?” That is a question I’ve been asked and have answered numerous times. I recently joined BakerHostetler’s Chicago office in the Digital Assets and Data Management Practice Group after spending almost eight years at Publicis Groupe, where I led a team of attorneys supporting business units focused on media, data and advertising technology (“ad tech”). As part of this transition, I’ve had the opportunity to meet many new lawyers at the firm and their existing and potential new clients, and that has required honing my proverbial “elevator pitch.” That elevator speech always includes a discussion of ad tech, starting with an explanation of what it is.

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