AD-ttorneys@law – May 21, 2020

Alerts / May 21, 2020

In This Issue:

Ben & Jerry’s ‘Happy Cows’ Case Comes to a Sad End

Misrepresentation claims were skim, not whole

Bovinity Divinity?

We have several updates to previous stories this week, and the list kicks off with a class action brought against ice cream megabrand Ben & Jerry’s.

Back in December, we reported on two cases filed by the same law firm against the scruffy-hippie ice cream brand, which is owned not by Ben Cohen and Jerry Greenfield but rather by transnational consumer goods behemoth Unilever – the company they sold it to 20 years ago.

The case under consideration, brought by consumer James Ehlers in the District of Vermont in October 2019, alleged that “only a minority percentage of the milk and cream in the Products actually is sourced from … ‘happy cows’ on ‘Caring Dairy’ farms; the remaining milk and cream originates from factory style, mass-production dairy operations, [which are] exactly what consumers who choose Ben & Jerry’s Products would like to avoid.”

“Caring Dairy” farms are farms that participate in a program of the same name put together by Ben & Jerry’s in 2011. “The Caring Dairy program has encouraged family farms to support sustainable agricultural practices, top-notch animal care, and dignified conditions for farm workers,” the program page on the company website reads. You can learn more about its strict participation standards here.

Vermonty Python

Ehler’s case landed with a thud, however, when the district court granted Ben & Jerry’s motion to dismiss in an order handed down in early May.

The court found that Ehlers’ complaint didn’t prove that the company’s packaging was misleading. The label that sparked Ehlers’ ire reads: “We strive to make the best possible ice cream in the best possible way. We source Non-GMO ingredients, Fairtrade cocoa & sugar, eggs from cage-free hens & milk & cream from happy cows. Learn more at”

The “happy cows” claim wasn’t directly at issue; instead, the complaint focused on the Caring Dairy page on the Ben & Jerry’s page that the label included a link to. According to the order, Ehlers argued that the website represented that “‘Caring Dairy’ standards are required of all farmers whose happy cows supply milk and cream for Ben & Jerry’s Products.” But the court didn’t agree, finding instead that the participation standards were applied only to dairies aspiring to join the Caring Dairy program – not Ben & Jerry’s suppliers.

“Plaintiff bases his claim on a representation that is neither contained on Ben & Jerry’s ice cream cartons nor on its website,” the court wrote, and “cannot point to an actual misrepresentation, but instead relies exclusively on his interpretation of a phrase he characterizes as conveying the impression that all of Ben & Jerry’s products are ‘sourced exclusively’ from ‘Caring Dairies.’”

The Takeaway

This lack of misrepresentation collapsed the rest of the claims, and the action came to a halt.

As we remarked in the earlier article, the Vermont action was similar to a case floated in July 2018 by the Organic Consumers Association in the District of Columbia Superior Court. That case survived a motion to dismiss and is currently working through a motion for summary judgment brought by the ice cream men.

We’ll let you know its fate.

Paparazzi Suit Victims Try Unconventional Plays

Two cases from last year highlight (somewhat) successful defense strategies

À la Recherche du Plaintes Perdu

Just last week, we were reporting on the ongoing deluge of paparazzi/celebrity copyright cases – cases wherein nearly everyone who could possibly be sucked into such disputes found themselves sucked into such a dispute. Paparazzi, celebrities and sports figures, fashion designers, fashion houses, and so on – all have been smacked with a complaint in some form.

We were inspired and decided to go back in time and look at the resolution of two cases we covered last year – a lawsuit against supermodel Gigi Hadid and a lawsuit filed by NFL star Odell Beckham. In early 2019, we mentioned both; Hadid had yet to respond to being sued by a company called Xclusive-Lee Inc. for taking a photo of herself copyrighted by the company and pasting that photo to her Instagram feed without permission. Beckham, on the other hand, had recently launched an innovative lawsuit against a paparazzo that might point the way forward for celebrity defendants.

Behold a Pale Model

Back to Beckham in a minute. By June 2019, Hadid had responded to the Xclusive-Lee suit with a barnburner of a motion to dismiss; the model argued that posting the photo in question was fair use. “According to [Xclusive-Lee’s] complaint,” her motion read, “Ms. Hadid merely reposted the photograph to her Instagram page and made no effort to commercially exploit it. Her reposting thus reflected a personal purpose different than the photographer’s purpose in taking the photograph, which was to commercially exploit Ms. Hadid’s popularity.”

The plaintiff freaked out. In addition to claiming fair use, Hadid had argued that the original taking of the photo granted her an implied license over the work; Xclusive-Lee maintained in its response that this argument was nothing short of apocalyptic.

“If a model poses for a sculptor, does she possess an implied license to appropriate the work? If an individual provides a quote to [a] reporter for a story, does she possess an implied license to appropriate the work? If an individual cooperates with an author on a biography, does she possess an implied license to appropriate the work? Of course not. If Hadid’s approach to the issue of an implied license were adopted, the copyrights of the majority of the world’s authors would be obliterated because the only requirement for an implied license would be for the subject of a work of original art would be to claim (not very convincingly) that she winked, smiled, nodded, or otherwise communicated her acceptance to the author.”

Whimper, Not Bang

Fair use and implied licensing — unless we missed it, these two counterattacks hadn’t been used against paparazzi before. Did Hadid’s gambit pay off?

Sort of. The court tossed the suit, but not because it affirmed fair use as an applicable doctrine or because it believed an implied license had been created. No – the court avoided addressing either strategy because it found that Xclusive-Lee failed to register a copyright for the photo.That’s it.

Hadid never had a chance to see if she could upend the world of artistic copyright after all.

We expect she’ll survive the disappointment.

The Takeaway

But let’s bend back to Beckham. The Cleveland Browns wide receiver was one step ahead of his paparazzo.

In early 2018, Beckham sued a “notorious” photographer and the photographer’s agency when they approached him with a demand for $40,000. Beckham, like Hadid, had posted to Instagram a picture of himself taken by the photographer, and legal action seemed to be on the table.

Citing an earlier case launched by the agency and its photographer against actress Jessica Simpson, Beckham accused the defendants of running an extortion campaign and sued them before they had time to file. He claimed intrusion on solitude, public disclosure of private facts and appropriation of likeness, and he sought a declaratory judgment to block a future suit.

His approach seems to have worked. While we aren’t sure why, the parties filed a joint motion for dismissal in February 2019, with both walking away bearing their own costs and lawyer’s fees. No settlement amount was provided.

Along with fashion house Moschino’s innovative counterpunch in a separate paparazzi case – it also settled – it seems celebrities and other targets of the paparazzi are getting creative in the legal arena, with positive results.

FTC Fires Off More COVID Correspondence

Latest mail packet includes more than 40 letters to supposed scammers

Fattening the Curve

Is there anything more difficult than wringing humor from tragedy?

Well, this Twitter user (or whomever he copied his meme from) pulled it off – respecting the underlying sadness of the moment while poking fun at his own obsessiveness by plotting an exponential line showing his time spent looking at exponential graphs during the course of 2020.

This graph, in turn, made us wonder about the explosion of coronavirus scamming activity. Does it follow the same growth curve as the virus? Is it growing faster than the underlying pandemic?

If we were to dedicate the time and effort required to plot the number of Federal Trade Commission (FTC or Commission) warning letters sent out per week since March, we might be surprised by the answer. According to the FTC, its latest fusillade of letters to coronavirus and COVID-19 scammers, fired off on May 7, consisted of 45 separate letters – nearly half of the total number sent since the pandemic’s arrival in the United States.

But we didn’t put in the time and effort – our free time in quarantine is dedicated to binge-watching Love Is Blind.

Crackpot Crackdown

According to the Commission, the latest set of letters widens the scope of targeted companies from “sellers of vitamins, herbs, colloidal silver, teas, essential oils” to other treatments, including “Chinese herbal medications, music therapy, homeopathic treatments, and even shields claimed to boost the immune system by protecting the wearer from electromagnetic fields.”

To pick a random example, the music therapy website that received an FTC greeting card allegedly contained the following promotion:

“The Coronavirus strain COVID-19 is a respiratory illness spread from human contact or by touching contaminated surfaces/objects. We have made a new 25 minute program of specifically formulated frequencies to assist in boosting your immune system and weakening the virus. . . . [B]egin listening when the virus is reported in your community or if you think you have the virus. [L]isten before traveling to an area that has reported cases.”

How much does this sterling advice cost? Remarkably, the Musical Medicine “virus” page is still up and running. We won’t link to it, but the “Virus Program CD” costs $5.99. “Because of the possible severity of the spread of the virus, we are making this program available at a fraction of our costs.”

It appears that the company behind the CD simply scrubbed mention of COVID-19 and the coronavirus from the page. One wonders if simply calling it “the virus” will be enough to satisfy the enforcers at the FTC.

The Takeaway

In any case, the message is clear: Coronavirus scams are a growth industry, and the FTC is keeping busy beating back the BS. The letters call out unsubstantiated efficacy claims and give the companies 48 hours to let the Commission know they’ve “addressed the agency’s concerns.”

And the threat of further action is real: The FTC recently announced a preliminary order prohibiting a marketer and the individual behind the company from making claims that its cannabidiol-based products treat COVID-19.

Bakker Claims Coronavirus Prosecution Attacks His Faith

Will every advertising defendant get religion?

Silver-Tongued Devil

Here is yet another “latest developments” article.

This one concerns the Rev. Jim Bakker and his ministries, which when last we reported five minutes ago were catching hell for pitching a phony coronavirus cure.

For a while there, it seemed that everyone might get in on the act. The FTC and the Food and Drug Administration (FDA) pulled a double-team and sent the preacher a letter stating that he “offers products labeled to contain silver, such as ‘Silver Sol Liquid,’ for sale in the United States and that these products are intended to mitigate, prevent, treat, diagnose, or cure COVID-19 in people.”

The letter ominously noted that the “FDA has determined that these products are unapproved new drugs sold in violation of the Federal Food, Drug, and Cosmetic Act.”

Then the New York state attorney general’s (NYAG) office fired off a cease-and-desist letter. And the Missouri attorney general filed for a temporary restraining order, won it and then came back with a beefier amended complaint alleging Bakker violated Missouri law through a Dante-esque set of sins, including false promises, misrepresentation, unfair practice, deception, and concealment, suppression or omission of material fact. The NYAG requested a permanent injunction against further sales.

Limitless Protection

Perhaps Bakker understands that the current controversy raises his public profile to heights not experienced since he was accused by Jessica Hahn of sexual assault and hush-money payments. How else to explain his response to the MOAG? (We love that acronym.)

The motion to dismiss filed in early May by Bakker’s attorney, former Missouri Gov. Jay Nixon is … shall we say … a bit broad. The defendant moved to dismiss the case “as barred by the First and Fifth Amendments to the United States Constitution, Article I, Sections 5, 8, and 10, of the Missouri Constitution, and Missouri’s Religious Freedom Restoration Act.”

You heard it here: Selling unsubstantiated cures for a deadly virus is “the biblical practice and expression of Christianity and the religious solicitation of funds by a pastor to support a church’s ministry.”

There are further assertions like this one in the three-page motion, but little actual argument. Our favorite: Application of the Missouri Merchandising Practices Act “constitutes impermissible regulation of their religious speech and religiously-motivated expressive conduct (e.g., preaching, solicitation, and/or advertising).”

The Takeaway

Longer than the motion itself is an attached exhibit, the declaration of one Maricela Woodall, president of Bakker’s Morningside Church Productions Inc. After establishing that Bakker’s television program is a ministry and its viewers are congregants, Woodall outlines the tenets of the reverend’s brand of religion. Then the declaration takes a turn. “We believe that [the advent of COVID-19], which has resulted in massive world-wide turmoil, lockdowns, and other lasting effects, could be part of fulfilling the Biblical prophecy presented in Matthew 24:7 and Revelation 6:7-8.”

Silver Solution is a “practical tool” to “prepare for the end-times,” the Woodall declares. “Educating our partners concerning, and offering them, products, including Silver Solution, in connection with the solicitation of funds for the ministry serves as an expression of our religious beliefs, an effort to inculcate, and an important religious practice of itself.”

According to Bakker and company, religious practice and belief – activities from which countless human beings derive purpose, solace and joy – are now acceptable defenses for all sorts of illegal behavior.

If you’re a marketer or advertiser in legal trouble and you’re excited to discover a novel defense in Bakker’s arguments, we suggest that you think twice. The world will end before they’re taken seriously.

Supreme Court Reviews TCPA Exception Case

Lawyers presented their arguments, and nothing strange or funny happened

How To Recognize a True Professional

We swore a few weeks ago that we would try to keep our coverage of the coronavirus to a minimum. After all, other aspects of life (and the law) continue in spite of it, and you’re probably getting your fair share of coverage in any case.

But as viruses are wont to do, this one has wormed its way into nearly every part of our lives. And so, we’re leading off this story – ostensibly about a Supreme Court case with tremendous impact on advertisers – with a coronavirus-related anecdote.

The case concerns the Telephone Consumer Protection Act (TCPA). Given the current need for social distancing, we all were inoculated against the irony of the proceedings taking place via conference call. But social distancing, telework and livestreaming now have become so embedded in our daily lives that we are becoming very, very comfortable as we go about our work, even in front of open mics and video feeds.

Which leads to “the Flush Heard Round the World.”

Someone among those present in the virtual courtroom was using the commode during oral arguments relating to Barr v. American Association of Political Consultants, Inc. For what? Well, who knows what? We’ll leave that alone.

But there it was – a comic sucking sound that received predictable late-night attention.

In an amazing display of sangfroid, attorney Roman Martinez, who was arguing when the flush sang out over the telephone lines, ignored the sound and kept on making his case. Hats off to him.

Political Consultants Are Robocallers Too

With that out of the way, let’s turn our attention to Barr.

The case concerns an exception added to the TCPA in 2015 that allows auto-dialed calls from debt collectors seeking repayment on behalf of the federal government.

The American Association of Political Consultants and co-plaintiffs sued the Federal Communications Commission (FCC) in the Eastern District of North Carolina in 2016, arguing that the exception violated the First Amendment as a content-based restriction on speech. They maintained that the statute awarded certain types of automated calls preferential treatment based on their content and asked for the entire auto-dialer ban to be overturned – a move that would have gutted the act.

The Takeaway

The FCC walked away from the district court case, winning summary judgment, and the Fourth Circuit heard an appeal in 2018. Here’s where things became a little more complex: The appeals court held that the exception undermined the act’s attempt to safeguard privacy and violated the First Amendment but that the exception is severable from the rest of the act. The Fourth Circuit decided to delete the exception from the act.

By the time the case reached the Supreme Court, two momentous questions were raised by the case – one regarding fundamental rights, and the other about procedure:

“Whether the government-debt exception to the TCPA’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.”

The transcript of the arguments is available – alas, the flush is omitted, but they’re worth a read.

We promise to keep you posted on the latest developments in the case.

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