Panel 2: The Role of the Author and the Acquisition and Duration of Their Rights

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

Panel 2: The Role of the Author and the Acquisition and Duration of Their Rights

Molly Van Houweling, UC Berkeley Law (Moderator)

Tyler Ochoa, Santa Clara School of Law: why do we have formalities? Path dependence is one big explanation for registration, notice, deposit. If © is designed to incentivize exploitation, then formalities make sense—if you’re willing to create the work regardless, no point in ©; you should do something to claim that © was important to the creation (or distribution). Utilitarian view expressed in 1909 Act. Deposit and registration required for lawsuit in 1909, not pre-publication as in early republic. Domestic manufacturing clause.

1976 Act didn’t make huge changes in its initial form: notice was required for all copies published anywhere in the world, not just in the US, to avoid public domain: an expansion of the notice rule. UCC: notice substituted for other formalities. Failure to affix proper notice placed work in PD, subject to a cure provision. Manufacturing clause was kept, but sunsetted. Deposit/registration required to sue. Biggest single change in 1976 Act was duration. 85% of registered works went into public domain after 28 years, though musical works and motion pictures were heavily renewed (about 2/3). Books: 7%.

No works that received life+75 under the 76 Act have expired. The only works to enter the PD under the Act are pre-76 works that hadn’t yet been published or registered and were still unpublished as of 2002. And there’s still 45 years to go b/c of term extension.

Post-76 change gets most rid of the formalities that were preserved. BCIA: mandatory notice eliminated Mar. 1, 1989. Manufacturing clause expired; registration no longer required for foreign works to sue, though statutory damages/attorneys’ fees still require registration but there’s no technical violation of Berne b/c neither of those are required. VARA gives us something couched in the language of moral rights for the first time, but it requires single/limited edition (requires it to be signed/consecutively numbered, which is a formality). Automatic renewal; copyright restoration; CTEA term extension.

David Nimmer, UCLA School of Law: we have never known which works will still be popular several decades from now. Congress wanted to eliminate the Fred Fisher doctrine allowing assignment in advance of renewal rights. But it wanted to handle contributions to collective/joint works. That required more drafting.

How did that work? Winnie the Pooh termination: The current owner did a recission and regrant, all in one transaction. Nimmer argued that, before they got into that room, there was a termination right, and the agreement was an “agreement to the contrary” that was ineffective to override that termination right. He lost (but thinks he was right, and I definitely see his point). Congress could have allowed this, but the statute is categorical (w/the slight exception of renegotiating with the current owner once the termination notice has been sent). It’s not that he didn’t have authority to sign a contract. But the Supremacy Clause says that termination may be effected notwithstanding any agreement to the contrary. Fred Fisher has been resurrected.

What should we do? All we need are 2 changes: (1) voluntary nature of termination/all of the hoops to jump through make it practically impossible without counsel, and not easy even then. Termination should become automatic. (2) Congress should re-pass the provision about “any agreement” and say it really means it.

Robert Brauneis, GW Law: When does creative work get recognized as authorship? Most obvious exclusion doctrine is WFH; direction of 76 Act is really complicated there. It could be read as author-friendly only in relationship to the “instance and expense” test developed after the grand bargain was penned.

Other doctrines about recognizing creative work as central: fixation; derivative work authorship; joint/co-authorship. Under 1909 Act, phonorecord wasn’t fixation b/c not human perceptible, nor was choreographic work fixed in a visual record. The Office then adopted that requirement for deposit—registration had to be by visual notation and that forms the boundaries of the registered work. Many composers who don’t notate end up never being recognized as authors of the musical works they composed, especially in blues and folk genres.

That changes in terms of using recordings for fixation. But recordings are easier to pass back and forth b/t coauthors; it’s still possible for composers to lose out, but the average number of composers credited has grown a lot—Glynn Lunney says it’s more than doubled in a few decades; Emma Perot said it starts taking off in the 1990s and picks up speed. Possibly some is performers added as a condition of performance; others added because of fears of liability; sampling may also have added composers. Lunney suggests that each songwriter is becoming less productive.

More optimistic possibility: when he investigated “A Little Bird Told Me” from 1949, there was a composer of basic melody/lyrics, there was a lot of collaboration—singer Paula Watson and backup singers went over to his house and worked up new lyrics, a new bassline, a new arrangement & hummed introduction. But the “composer” was singly credited, leaving nothing but session payments for the other collaborators. Today, the others who contributed might have gotten a composition credit. A vanishingly small percentage of revenues today comes from sheet music; the authorship of the recorded version is much more collaborative; the rise in credits may not be less productive songwriters or overreaching of performers, but at least partly that more of the creative contributors are being recognized as authors, and the musical work recognized is “thicker” in that it contains more of the elements that make the work a hit.

1978 is when the legal change of the Act takes effect, and then there’s a change in form of deposit: by the 80s, 80% of applications are accompanied by phonorecord deposits. [What an interesting story!]

Copyright in unauthorized derivative works: the creators are doing something that authors do, but may not be recognized as authors. Protection doesn’t extend to unlawfully used material, and arrangements made for cover version can’t be ©d without permission of original © owner. Melville Nimmer argued that the first provision was inherited from 1909 Act; current edition of treatise says that the statute was ambiguous and the decisions contradictory, and Silbey/Samuelson argue that the text didn’t provide for forfeiture of © in newly added content, making the 76 Act an innovation.

Joint work: Intent to combine is required; designed to overrule precedents allowing music publishers to create joint works by combining music and lyrics written independently, but read much more broadly. Comment in legislative materials: Desirable to reduce as far as possible the situations in which a work is a joint work. Courts seem to have taken that to heart, including both in the 9^th and 2^nd circuits. Resulting problem: dominant creator gets sole ownership when other creators were consciously and intentionally creatively involved—denying authorship status to the creative work that authors do. Litman: courts erase the contributions of “inconvenient” co-creators.

Is the 76 Act to blame, or the courts resisting something outlined in the statute? More of the blame is on judges than on the language in his view.

Peter DiCola, Northwestern Pritzker School of Law: Reforms of the Act did not, and could not, meaningfully help authors given what else was about to happen, that is, consolidation, here in the music industry. Most conversations he has, people think he’s talking about Taylor Swift. But he thinks of the bell curve: a distribution of musicians—Swift is not representative. The industry has literally made sure that some things she’s done will never be possible for any other musician again.

Market demand determines copyright payout. But market demand is also shaped by concentration among companies that deliver content; in the US 4 have 97% of market share in streaming music. 3 major publishers and 3 labels, down from 7 even in past decades. Independent sector claims are often misleading (Spotify claims to send a lot of revenue to them) b/c an artist’s vanity label can be claimed as an indie but distributed by a major. And they’re parts of larger conglomerates. Composers and songwriters/recording artists face very large entities with lots of bargaining power. Recording contracts have become more structurally exploitative—shift to 360 deals where labels “participate” in revenue of artist in other endeavors like tours & t-shirts. Labels have moved to contractual agreement against re-recording, so Swift will be the last unless we restrict those contracts.

Biggest story now: consolidation of entities that retail or deliver music. Wal-Mart used its power to control both pricing and content. Now big companies are negotiating with big companies: oligopolies selling through oligopolies. That’s why Spotify, YouTube, Apple and Amazon are subject to increasing scrutiny and discontent by musicians. © can only deliver economic benefits based on structure of markets into which authors sell. Demand isn’t enough: the market structure is categorically different now from the market structure in 1976: twin oligarchies; tech companies may be willing to sell music at a loss to keep people on the platforms, which hasn’t happened before; Act wasn’t designed w/that kind of music in mind.

Along with antitrust, you could have more default rules prohibiting contracting around. Draft legislation: allowing sectoral bargaining for musicians against streaming companies. Could create authors’ rights to access data about how their works are exploited; transparency in accounting practices.

Biggest new hole in authors’ rights: Spotify’s policy starting 2023 is that they don’t pay royalties on tracks that get less than 1000 streams in the last 12 months. Perlmutter referred to streaming as a huge success compared to the litigation against filesharing, but now we see what happens: having music on Spotify means agreeing that your less successful tracks won’t get any royalties. How do we know what’s happened to the © system? It’s opaque! Don’t take Spotify’s word for it.

Q: are these mostly music-specific?

Brauneis: On coauthorship, there are field-specific practices and many are affected by the law/not in line with the caselaw.

Nimmer: ProCD v. Zeidenberg was bad—circumvented © law; contracts prohibiting soundalikes are systematically trying to defeat the right to make soundalikes, and we should also be hostile to them.

DiCola: we could elevate the negative space of 114(b) into the right of the public.

Ginsburg: who deserves the blame for the exclusion of inconvenient co-authors? It’s the judges! The statute only says intent to merge contributions, not intent to be co-authors. Master mind reasoning is nonsensical! Doctrinally, this is wrong, but it does have the merit of getting rid of the inconvenient co-contributors. If you apply the statute as written, how do you decide who is enough of a contributor to be an author? Should ideas be enough? [I think editing is the classic difficult case unless you bring in reasoning about the social meaning of various roles, and that just helps you with the editor, not with the dramaturg in the next case.]

Brauneis: the courts don’t feel competent to modify the rule that co-authors get equal shares to allocate ownership, so they need to find a rule to prevent people like Jefri Aalmuhammed from being authors. We would have to confront unequal shares—or say that if you didn’t plan for the situation you have to live with the default rule. Both Aalmuhammed & the Second Circuit case are about motion picture companies refusing to do things that they should have done (getting WFH agreements in place).

Ochoa: could have said that everyone in the credits is a co-author, but everyone else signed a WFH agreement, so Aalmuhammed only gets a 1/1000 share, but it made no sense for the Second Circuit to say that the director isn’t a coauthor.

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act: Origins of the Copyright Act

29th Annual BTLJ-BCLT Spring Symposium: Origins, Evolution, and Possible Futures of the 1976 Copyright Act

[apologies—seriously delayed flight means my notetaking will be bad.]

Panel 1: Origins of the 1976 Copyright Act

Peter Menell, UC Berkeley Law (Speaker and Moderator): Copyright revision was extensive process of negotiation, occurring alongside movement for racial equality. Some view this as a product of back rooms (shows a picture with only white guys in it). 60s and 70s weren’t the kind of “swamp” we have now. Many studies on historical, philosophical, comparative, economic, and other aspects of ©. Recommendations for broad rights in order to deal with the possibility that “a particular use which may seem to have little or no economic impact on the author’s rights today can assume tremendous importance in times to come.” Importantly, removed general limits on nonprofit uses despite concerns of librarians and educators.

Hollywood didn’t “run the table”—there was some movement to protect authors. Work made for hire renegotiated, and termination of transfers made inalienable, but not a huge shift in favor of authors. What about device manufacturers, users, and consumers? Complex interactions, during which computer software emerged. Not overbearing powerful interest groups running the show so much as carefully constructed balances that didn’t substantively favor content owners as much as we might think—no public performance right for sound recordings, because user groups—radio stations and cover artists—got the better of them. Likewise, the glass is half full for device manufacturers, libraries, scholars and teachers on fair use. Scientific publishers were able to block more generous photocopying rules. Jukebox manufacturers got a favorable rule on device royalties—a dying industry, which was part of their argument. 601: printers/organized labor got the manufacturing clause, though it sunsetted. And on cable, cable operators did pretty well. [This is pretty much Jessica Litman’s account in Digital Copyright, framed differently: interest groups that were organized and showed up got exceptions for themselves, but the “balance” was only for those groups; if they didn’t show up then their rights/interests weren’t considered.]

1976 Act was built for a gatekeeper/clearance ecosystem that was quickly disrupted by the Betamax and then the internet. Sometimes the system worked, sometimes not.

Jessica Litman, Michigan Law: Menell describes a continuous sequence of Copyright Office research and review, and then 9 years in Congress during which its proposal mostly survives. She sees more discontinuity. Office sought to do initial drafting relatively insulated from pressure from copyright bar and came up with what it believed would be wise; the © bar hated it and the Office pushed the restart button, encouraging negotiation between groups on the substance and in many instances the language of the revised proposal. The Office kept pretty good control of the drafting pen most of the time during the initial years, and the records of that process, including meetings hosted by LoC, are extremely useful for figuring out what the language was supposed to mean at the time.

Beyond academic interest, what does the intended meaning have to do with the meaning now? There are lots of reasons why that intended meaning might not be much help. Legislative history was seen in the 60s and 70s, and even 80s, as a crucial statutory interpretation tool, and now that’s not the case. Even ignoring that: Congress has made more than 70 amendments over the past 50 years; the crafters of those amendments paid little heed to what the earlier language meant/was intended to mean. And the malleable meaning of particular words is important: “copy” means something in 2026 than in 1966.

What we learn about original intended meaning of the words is of limited use if we’re trying to figure out what the statute means today. These explorations are useful especially for illustrating legislative process, and the history/structure of music, publishing, and consumer electronic businesses as well as teaching in schools and churches, but they don’t necessarily yield citable authority on what the statute “really” means.

Argument: the drafting process is hostile to outsiders who weren’t invited (sometimes b/c they didn’t exist yet). More recently interested in what happened among insiders and whether they got what they wanted. Assumptions about how the law and the world worked that didn’t necessarily hold: future-proofing did require assumptions. There were assumptions about how the parties would treat each other going forward; broken expectations can radically change the balance of what the insiders believed they were agreeing to do.

There were assumptions about law & world that didn’t prove out. They assumed the future would not be sharply distinct—didn’t anticipate breathtaking consolidation of entertainment industry; assumed that computers would continue to be niche devices used by scientists/students; didn’t anticipate consequences of networked computing. Even though they talked about the terrible danger of unlicensed personal uses, they figured they’d be a continuing annoyance rather than existential threat. Thus they didn’t have a statutory instruction on contributory infringement. One reason Sony came out the way it did was the prospect of making Sony pay statutory damages for every third-party infringement.

Unanticipated change in law: the definition of WFH and details of terminations of transfer were settled in April 1965 as the result of hard bargaining among book publishers, music publishers, songwriters, and author group. At the time, courts didn’t treat independent contractors’ works as WFH; creation of work was subject to implied agreement to transfer © to commissioning party. Didn’t need a signed writing b/c federal © had not yet attached on creation. Only significance was then that after the original 28 years applied, the creator could apply for renewal; but since most works weren’t renewed, this wasn’t all that important. The grand compromise on termination and WFH definition was negotiated against this background, adding categories of WFH made by independent contractors to definition. They insisted that any change by Congress would require renegotiation from the ground up, so very little changed.

But then the 9^th and 2^nd Circuit decided cases about independent contractors and found they should be WFH by confusing or conflating the line of cases holding that employers were the legal authors w/the line of cases holding that independent contractors implicitly agreed to copyright transfers. Implicitly, publishers promised that if authors gave initial period of exclusivity and waited and jumped through all the hoops they’d get their rights back. But the promises made in negotiations were never binding or enforceable—no legal authority to bind publishing companies years later. So if statutory language was susceptible of more than one interpretation, it’s hard to blame a publisher from exploiting that ambiguity. So they did! When served a termination notice, publishing companies asserted that they could keep collecting royalties for all previous versions of a song using the derivative works exception to termination. And the Supreme Court agreed. Publishers then argued, against proposed amendment, that the statute had created vested rights from the beginning that couldn’t constitutionally be taken.

It’s hard to think about moral enforceability when the individuals who need to keep the promises are different from the individuals who made the promises. In practice, an author who wants to exercise her termination rights has to jump through hoops and then be prepared to engage in litigation.

Other examples of broken promises exist. What’s the point? We can find out how various interests believed the statute would work, and compare that to our current world, but it’s hard to leverage our understanding of intended application to persuade courts to agree with it today given all the amendments and broken promises.

Useful process lessons: Even when it was new, the 76 Act looked better on paper than it turned out to work in the world. Latent assumptions/promises were weak points that could be and were exploited. Authors aren’t doing well: earning less and fewer choices than they once had. It may be that the late 1970s/early 1980s was a halcyon era, but things have changed. If we want authors to have a stronger hand to play, that’s a really difficult problem. EU takes this seriously and has made unsuccessful efforts in that direction; it’s definitely not a fix it and forget it problem.

The negotiations that gave rise to the revision bill were intense but respectful—trying together to build a workable © act even as they sought advantage. Hard to recognize that world now in the viper pit that is the current © bar.

It turns out to be really important who the Register is. True even though we don’t have much control over who that will be. Barbara Ringer: it’s important for the Register to be able to stand up to all the copyright lawyers for the various interests.

Jane Ginsburg, Columbia Law School

Influence of international law: American exceptionalism was the pre-history, but international norms pervaded the drafting of the 76 Act—Barbara Ringer was very proud of this—shifting from publisher to author as focus.

Universal Copyright Convention/formalities. We made our own international order allowing our 28 year initial term and formalities, but agreeing to reciprocal protection and restricting manufacturing clause so it didn’t preclude copyright for foreign authors’ works. Remaining outside Berne was annoying though.

Comparative law/duration/formalities. Each step made it easier to move toward compliance with the broader Berne regime. UCC revised: Registration, deposit, and domestic manufacturer were no longer required as long as the foreign proprietor complied w/a simplified notice requirement—a two-tier system allowed draconian formalities at home so long as foreign works had the easier system. But that’s unstable: why restrict domestic authors that way while the burden on foreign authors was much lighter? Rule of shorter term also created grumbling: foreign reciprocity was limited by our shorter term.

Misunderstanding about foreign law might have affected WFH status. Claim was that movie studios needed status of author to own all rights abroad. Assumed that foreign nations would accept this divestment of individuals; but France’s highest court spurned our characterization of film producers as authors and gave indefeasible rights to directors against colorization. s

Persistence of American exceptionalism: jukebox exemption; mechanical rights; moral rights; formalities; works made for hire.

Menell: how do we incorporate interests of people who weren’t in the room b/c their industries didn’t exist/how do we have a rule of law without a rule of interpretation? Judges who aren’t experts will struggle w/©.

Litman: in the 70s and 80s judges found legislative history useful. To the extent it wasn’t read by legislators voting, it’s a bit odd to consider it, but we now have a statute that very clearly wasn’t written by legislators—maybe that’s the result of delegation to the Office; doesn’t matter for this purpose. Judges today figure that their job is to look at the text and judicial decisions construing the text. That’s a rule of interpretation; she may not think it’s the wisest rule, but that’s up for debate.

Ginsburg: The rule was that you looked at legislative history when the statute was unclear; the statutory text was never irrelevant! Even aware of its corruptibility/process issues, the text isn’t always clear and judges need help; one place to find that help is the rich legislative history of the Act, possibly less corrupt than some others. But the legislative history of subsequent amendments might be a bit dodgy.

Menell: even strict textualists say that they interpret the statute as of the time the words were put into law, so understanding context remains important. Cox will cause more confusion, but that goes to how our democracy is evolving. Strict textualism is being used by judges who weren’t that sympathetic to the project in the first place.

Tyler Ochoa: © is not the best tool to make up for the near-complete lack of enforcement of antitrust law in the entertainment industry. What were the assumptions about competition and antitrust in the 70s?

Litman: we had many record labels, publishers, studios competing with each other. Blackmun was on the Court and antitrust was almost a constitutional imperative. That’s all changed, so the power dynamics aren’t what they expected.

Menell: network economic theory wasn’t yet developed. Concentration today has benefits to consumers through network effects that weren’t perceived at the time: Spotify is concentrated but has big benefits to consumers.

Litman (in response to Q): International compliance is an excuse. If we’d wanted harmonization, we’d have reduced the term of WFH rather than doing what we did.

Ginsburg: it’s true that the rule of the shorter term kept the 20 years from US authors in Europe, but Litman is right that our term for WFH (75 from publication) was already as long as the extended term in Europe. There were plausible int’l trade reasons for the extension, but zero copyright reasons.

FTC mostly succeeds in avoiding dismissal of claims against Uber; states must replead

Federal Trade Comm’n v. Uber Technol., Inc., 2026 WL 976077, No. 25-cv-03477-JST (N.D. Cal. Apr. 10, 2026)

Since November 2021, Uber has offered a subscription plan called Uber One, typically $9.99 a month or $96 annually with automatic charging and renewal. The Uber One subscription promises a “$0 Delivery Fee on eligible food, groceries, and more,” other benefits, and the option to “[c]ancel anytime without fees or penalties.” Other marketing claims include that consumers in the United States “[s]ave $25 every month” on average. “Uber uses consumers’ payment information to charge for Uber One, for which some consumers report they never signed up and have no idea why they were charged.”

The FTC alleged that members seeking to cancel their Uber One subscriptions must “take at least 12 to 32 actions,” including sometimes “calling [Uber’s] customer support to cancel, where they experience long wait times and significant delays.”

After navigating through several different screens in the app, consumers encounter a button called “End membership.” Members who click the button must answer a survey about why they seek to cancel, with follow-up questions that vary according to their stated reason. Throughout the process, the button to continue towards cancellation is black with gray or white font (in contrast to the button for keeping Uber One, which is white), and its position relative to other options changes, potentially misleading consumers who might tap the same position on the screen in an unsuccessful attempt to continue cancellation.

“For a significant part of the relevant time period, [the] End Membership button was not visible to any consumers in the final 48 hours of their billing cycle.” Even when they could see it, the app made it more difficult for them to cancel, offering a screen stating that they can keep their memberships active in exchange for savings of “$25 each month.” “[M]any” consumers who tried to decline were looped back to a cancellation survey even when they pressed the button that should have worked and didn’t succeed in cancelling.

The $25 savings screen, presented to consumers attempting to cancel within 48 hours of a new billing period, notifies consumers that their “next scheduled payment may be in process” and directs them to contact support. The FTC alleged that, “[i]n fact, Uber always charged consumers before the supposed billing date and never processed cancellations concluded via the in-app cancellation flow in the final 48-hour window.”

Moreover, “Uber did not provide any contact information for ‘support’ or give any guidance on where to navigate within the app to find ‘support’ for the vast majority of the relevant time period, and only offered the information after receiving notice of the FTC’s investigation.”

Finding where to contact “support” in the app requires navigating to and scrolling to the bottom of several more screens. Members must navigate to a support page, enter a complaint, and then re-navigate to the same page from an earlier screen to view the chat window through which a customer service representative may respond to the cancellation request. However, “even consumers who have found their way to the cancellation support queue have often been unable to promptly cancel or avoid being charged due to excessively long hold times: consumers often report waiting hours or up to a full day to receive a response from Uber, and that they were already billed for the next payment in the interim.” For consumers who reach customer service and cancel during this 48-hour window, Uber confirms cancellation and states that the consumer will not be charged after cancelling, but in fact, Uber always charges these users for one additional month.

Enact click-to-cancel now!

Also, while some materials note that cancellation is “with no additional fees” or “without fees or penalties,” elsewhere Uber discloses in fine print that members must cancel up to 48 hours before the membership renewal date “[t]o avoid charges.”

The FTC sued, along with 22 states, alleging violations of Section 5(a) of the Federal Trade Commission Act, 15 U.S.C. § 45(a), and numerous state laws; violation of the Restore Online Shoppers’ Confidence Act, including failure to provide disclosures of required terms and failure to obtain express informed consent before charges, and failure to provide simple mechanisms for stopping recurring charges. The court mostly upheld the federal claims but wanted more detail on the state law claims, dismissing them without prejudice.

FTC Act: First, the court didn’t resolve whether Rule 9(b) applied because even if it did, the FTC pled with sufficient particularity.

The FTC alleged that Uber’s representation “that consumers may cancel their subscription services at any time with no additional fees” was false because cancellation within 48 hours of the next billing period causes consumers to incur “additional fees” of $9.99 a month or $96 a year. That is, “Uber forces consumers who wish to cancel their subscription to resubscribe for a billing period that has not yet begun and whose benefits they have not yet begun to enjoy. Plaintiff’s theory that advance payment for a subscription that is no longer desired constitutes an ‘additional fee’ is intuitively colorable and Uber provides no authority to the contrary.”

That Uber occasionally, in fine print, warns consumers to cancel before the final 48 hours of the billing period didn’t prevent misleadingness. First, those disclaimers didn’t appear until, at the earliest, the checkout screen for Uber One; earlier in the enrollment flow Uber promises not to charge “additional fees” at cancellation. And fine-print 48-hour-window disclosure was plausibly insufficient to alter the “net impression” created by Uber’s statements that no additional fees are charged. This was additionally supported by allegations that, for trial period subscriptions, Uber bills consumers before the stated billing date—the end of the trial period; that some consumers who were told their subscriptions had been cancelled continued to receive charges for additional months; and that the 48-hour window is expressed in hours, but the billing “date” isn’t, “obfuscating the cutoff for consumers to cancel without incurring a fee.” 

However, the FTC didn’t entirely allege the falsity of the claim that Uber One members would “save $25 every month” even though many members do not do so. It was not sufficient that “Uber’s savings claim assumes that the subscription is free; the purported savings does not subtract any costs.” The complaint didn’t allege that $25 was not in fact the average savings enjoyed by Uber One members, even though it alleged several categories of members whose savings fall significantly below $25 a month. And one of the savings representations in the cancellation flow used “could,” which “communicates a possible but uncertain outcome,” along with clarifying that “[e]stimated savings do not include membership price.”

The FTC alleged that the $25 savings representation in the enrollment flow was misleading because it didn’t account for the cost of the subscription and didn’t disclose that; the enrollment flow was plausibly more significant than the cancellation flow. “Because it is possible that reasonable consumers would assume that projected savings account for the subscription cost and Uber has not shown otherwise, the Court will not dismiss this claim.”

The FTC also failed to plausibly allege the falsity/misleadingness of the claim that Uber One members receive “$0 delivery fees.” Uber plainly advertised $0 delivery fees on eligible orders. True, it was apparently “somewhat difficult to ascertain” which orders are in fact “eligible,” requiring a geographic radius, a participating store, and an order minimum that might vary based on the storefront, but “eligible” was “a clear qualifier signaling that only orders meeting certain criteria will qualify for $0 delivery fees. Even if a reasonable consumer may not know which orders will qualify, no reasonable consumer would assume that all orders do so.” Unless no orders were deemed “eligible,” that’s not deceptive.

ROSCA: ROSCA applies to “transaction[s] effected on the Internet through a negative option feature.” A “[n]egative option feature” is “a provision under which the customer’s silence or failure to take an affirmative action to reject goods or services or to cancel the agreement is interpreted by the seller as acceptance of the offer.” Uber’s briefing omitted the key phrase “or to cancel the agreement” in quoting the law, damaging its credibility and refuting its argument that ROSCA didn’t apply because users do not sign up for Uber One through silence or failure to take action.

The complaint alleged that a number of consumers were enrolled in Uber One without their knowledge or consent, which would “unquestionably” constitute a negative option feature.

But even for the others, the ROSCA violations were plausible. The negative option feature arose after sign-up, when consumers in free trials were “automatically enrolled in and charged for an Uber One subscription’ before the end of their free trial period.” There was also automatic renewal by default, a “textbook example of a negative option feature.” “Indeed, a free-to-pay conversion like Uber’s is explicitly identified in ROSCA as employing a negative option feature.”

It was plausible that Uber violated ROSCA by “fail[ing] to clearly and conspicuously disclose before obtaining consumers’ billing information all material transaction terms,” including (1) the recurring nature of Uber One; (2) the “true benefits and savings of an Uber subscription,” (3) the timing of charges; and (4) the method of cancellation.

ROSCA requires disclosure of “all material terms of the transaction before obtaining the consumer’s billing information.” But, in all or nearly all cases, consumers sign up for Uber One after providing billing information to use Uber for a single ride or delivery. The FTC’s argument that there was a per se violation of ROSCA in the timing of the disclosures, regardless of their sufficiency, was plausible. Even if companies can give consumers the option to autofill billing information on file, “ROSCA requires that consumers be given that choice after the disclosures.” In the current purchase flow, the terms show on the same screen that says Uber will charge their preexisting payment method. “Consumers consent to the use of that billing information only in the limited sense that they decline to select the ‘switch’ option to input different billing information.” The result here “might be different if Uber were to give consumers the option to autofill their existing payment information or otherwise affirmatively opt-in to its use.”

Failure to disclose material terms: Although each enrollment method had some kind of notice that Uber One members will incur recurring monthly charges, the FTC alleged that these notices are “in much smaller, lighter, and less prominent font than any other claims on” the same screens. ROSCA requires clear and conspicuous disclosures based both on “visual aspects” of the purported disclosure and the “context” of the transaction. The claim was plausible given the font, and the court was also sympathetic to the FTC’s argument that the “context” of the transaction weighs against the clarity and conspicuousness of the disclosures “because many plaintiffs are enrolled via unsolicited push notifications, pop-ups, and advertisements that appear when they are trying to secure a ride or place a delivery. Courts have observed that consumers do not expect to be enrolled in a subscription when making a one-time purchase, and therefore have little reason to look for fine print notifying them of the subscription.”

Some marketing materials also apparently “obfuscate[d] Uber One’s nature as a recurring subscription service.” E.g., “Love Uber One? Get 50% off 1 year / Save on your Uber One membership” “could mislead a consumer into believing they are already subscribed to Uber One and are merely being offered the chance to continue using Uber at a lower rate.” So too when the app directed a consumer attempting to book a ride to a popup asking them to sign up for Uber One or to “cancel”: “a consumer might believe they must sign up for Uber One or risk cancelling the ride request.”

It was also plausible that Uber failed to clearly and conspicuously disclose the timing of subscription fee charges. Its disclosures were (1) in fine print and (2) plausibly inaccurate, because, as Uber admitted, it charges consumers 48 hours prior to the stated billing date. Thus, “Uber’s disclosure of such dates is not only unhelpful but actively deceptive.” The court also found the timing disclosures “potentially difficult to read given the small size of a smartphone screen.”

And it was plausible that Uber failed to disclose the separate and more onerous method of cancellation consumers seeking to cancel their subscriptions within 48 hours of their renewal date had to use. Uber argued that it always said that users should cancel “in the app.” But, the court noted, “in the app” “provides little guidance given how thoroughly the cancellation button is buried within the app.” Also, “users within the 48-hour window actually cannot cancel within the app, but must instead contact customer service (although that process can be initiated through the app).” “Thus, Uber’s only purported attempt to disclose the cancellation method does not in fact tell users how to cancel.”

The FTC further alleged that Uber didn’t disclose the true benefits and savings: “save $25” could be misleading “insofar as a reasonable consumer believes it to include the subscription price.”

ROSCA also requires that a seller obtain a consumer’s “express informed consent” before charging the consumer. A consumer provides express informed consent if “(1) the website provides reasonably conspicuous notice of the terms to which the consumer will be bound; and (2) the consumer takes some action, such as clicking a button or checking a box, that unambiguously manifests his or her assent to those terms.”

The complaint alleged that some consumers who were charged never signed up at all, and that “others took action to revoke their consent and were charged again anyway, either because of the unreasonably long wait times in the support chat queue or despite the fact that they appeared to have successfully cancelled their subscription.” The FTC wasn’t required to affirmatively plead the precise number of consumers affected by each issue. And Uber’s alleged failure to sufficiently disclose material information would also defeat informed consent. In addition, the FTC alleged that consumers consented to free trial terms under which they will not be charged until the trial ended, only to be charged before that time.

The FTC wasn’t seeking civil penalties under the FTC Act, only under ROSCA, and that’s ok. “[B]efore commencing” any civil action seeking civil penalties, the FTC must provide written notification to and undertake consultation with the Attorney General. Although the complaint didn’t allege that this consultation had occurred, it wasn’t required to plead that; a presumption of regularity applied. (FWIW, though the DOJ has lost the benefit of that presumption, my guess is that the FTC lawyers knew what they were doing.) “If Uber believes that the FTC has failed to comply with [this requirement], it can seek that information during discovery.”

Uber also argued that the plaintiffs failed to plead the requisite knowledge under ROSCA or state statutes, but they did. Under ROSCA, “a business can be liable only if it either knew that the act was unlawful or if it should have known the act was unlawful.”

The allegations were sufficient, including the existence of “more than a dozen actions against other companies under the FTC Act and ROSCA, including for failing to have simple cancellation mechanisms and charging consumers without authorization,” “a public outpouring of complaints about unauthorized charges and difficulty cancelling Uber’s subscription services,”; internal testing conducted by Uber reflecting significant customer confusion regarding the cancellation process; “employee discussions of the problems with Uber’s disclosures,”; and even Uber’s “receipt of a letter from the FTC in September 2024 probing about Uber’s subscription programs, including enrollment and cancellation mechanisms and compliance with ROSCA.” Uber didn’t provide an interpretation of the statute and then explain why its conduct complied with that interpretation or otherwise defeat the plausibility of its knowledge.

The state plaintiffs had Article III standing for some claims, but needed more specific description of the elements of the state law claims.

“When a state sues to vindicate its own direct sovereign or proprietary interests, it need only meet Article III’s standing requirements.” When they assert parens patriae standing, they must also “[1] ‘allege injury to a sufficiently substantial segment of its population,’ [2] ‘articulate an interest apart from the interests of particular private parties,’ and ‘express[es] a quasi-sovereign interest.’ ”

Uber’s alleged violations of the FTC Act, ROSCA, and state statutes didn’t itself interfere with states’ sovereign “power to create and enforce a legal code.” But states also have a sovereign interest “in protecting their marketplaces” from deceptive practices, because “[f]raudulent market conduct has the capacity to degrade faith in the state, chill economic activity, and deter participation in the market.” The complaint sufficiently alleged the latter harm, describing “a public outpouring of complaints” and “significant customer confusion” and explaining that “[c]onsumer confidence is essential to the growth of online commerce” and that “the Internet must provide consumers with clear, accurate information.”

For parens patriae standing, one “helpful indication” was whether the injury to citizens “is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers.” Given that the plaintiff states “have in fact addressed the alleged injury by enacting the consumer protection statutes under which they sue,” they had an interest in the economic well-being of state citizenry, apart from private parties. But it was disputed whether they alleged injury to sufficiently substantial segments of their populations. Allegations that Uber has enrolled more than 28.7 million consumers into Uber One subscriptions weren’t enough without knowing how many lived in the plaintiff states. Thus, they failed to allege parens patriae standing.

Still, they had authority to sue, and to sue in federal court. But the relevant counts didn’t plead the elements of any state law claim. “A cursory listing of [several] states’ statutes is insufficient to satisfy Twombly and Iqbal’s pleading requirements.”

A thin record prevents ruling on a thin copyright

Viann’K Mansur LLC v. Estiloisabella LLC, 2026 WL 952416, No. H-23-2914 (S.D. Tex. Feb. 26, 2026)

“The parties in this case sell elaborate ball gowns for quinceanera parties, the celebration of a Latin American girl’s fifteenth birthday.” Defendant Etilolsabella LLC, formed by a former employee of plaintiff, allegedly began advertising and selling copies of its “Leonora Dress” (a light blue gown with pink floral surface designs) and “Golden Train Dress” (a crimson gown with gold sequin appliques). Defendant Etilolsabella LLC’s social media accounts featured posts depicting allegedly infringing dresses advertised with various derivatives of “#viannkmansurexclusive.” Defendants argued that they acted in the reasonable belief that they had authority to use the mark due to various permissions plaintiff had previously given.

Copyright: “[W]hen comparators are not overwhelmingly identical or exact matches or the differences edge beyond the superficial, summary judgment is not appropriate because a reasonable juror could find no infringement.” Here, the parties agreed that the only protectable elements of plaintiff’s dresses were the surface design elements—the placement and shape of the sequin or floral appliques that adorn the dresses. The record didn’t show the Leonora dress and the accused dress with enough clarity to enable a substantial similarity analysis. An individual defendant expressly testified that “[i]t’s not exactly the same dress” and that the differences related to the floral appliques, which were the only protectable elements of the Leonora Dress.

plaintiff's Leonora dress

accused use

accused use

accused use

Meanwhile, the Golden Train dress and the accused dress designs were

far from identical. The Golden Train Dress has single-pointed crenelated edging with deep negative space and additional sequinning on the flounce layers on the sides of the dress. The allegedly infringing dress, on the other hand, has much thicker double-pointed edging with wide scalloped edges and while there is additional sequinning on the train itself, the layered flounces appear unadorned. In other words, these dresses are not “so overwhelmingly identical that no reasonable juror could reach a different conclusion.”

Plaintiff's Golden Train closeup

Plaintiff's Golden Train

Defendant's accused dress

On likely confusion, there were factual issues despite the use of a similar hashtag to an inherently distinctive mark. On intent, given that “[d]efendants paid taxes, rent, and electricity bills on behalf of the Viann’K Mansur brand, … there is a genuine dispute as to whether Defendants had a good faith belief, even if mistaken, that they had permission to use the Viann’K Mansur name.” And there was no evidence of actual confusion. One of defendant’s customers testified that, although she considered making an appointment with Plaintiff, she decided instead to purchase a dress from Defendants after viewing Defendants’ social media post,” but her “conscious choice of Defendants’ brand over Plaintiff’s brand implies her actual awareness of two distinct brands.” And these were “relatively expensive items of custom clothing and purchasing one requires making an in-person appointment with the seller.”

The court didn’t discuss the false advertising claims separately.

Reading list: The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment

Alisher Juzgenbayev, The Vanishing Enforcer: Consumer Protection in an Era of Dual Retrenchment, 120 Nw. U. L. Rev. 1449 (2026).

Abstract

Recent developments, including reductions in the federal workforce, effective suspension of certain enforcement activities, and attempted centralization of independent agency rulemaking in the White House, have significantly weakened administrative agencies. This administrative retrenchment is concerning as private enforcement of a number of consumer protection statutes has been simultaneously curtailed through the Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez, which dramatically narrowed plaintiffs’ standing. These decisions rely in part on a vision of strong executive authority, positing that broad private standing conflicts with an Article II framework where a politically accountable President faithfully implements laws and exercises coordinated enforcement discretion. When the Executive interprets this discretion so expansively as to effectively nullify enforcement of federal statutory schemes, Congress retains few tools to engage in meaningful lawmaking to advance policies across different domains. The Fair Debt Collection Practices Act (FDCPA) and the Consumer Financial Protection Bureau (CFPB) offer a telling case study: as courts have systematically restricted private enforcement, particularly class actions, they have channeled enforcement toward the CFPB—theoretically positioning the agency to address systemic violations through enforcement, monitoring, and information gathering. While individual consumers may still access state courts or raise FDCPA violations defensively, addressing systemic violations requires robust administrative enforcement if the Article II justification for restricting private standing is to remain coherent. The possibility for such enforcement now faces mounting challenges from increased politicization of enforcement, executive disempowerment of agencies, and growing judicial skepticism about the propriety of independent agencies and their investigative and interpretative authority. The risk is that some consumer protection statutes will become effectively unenforceable as neither private litigation nor state alternatives can adequately fill the resulting enforcement gap.

court allows Lanham Act claims about allegedly deceptive Amazon product page grouping to proceed

Corsair Gaming, Inc. v. Choice Electronics Inc., 2025 WL 2822691, No. 5:25-cv-00045-BLF (N.D. Cal. Oct. 3, 2025)

There seem to be a couple of these cases out there. Corsair sells computer and gaming products under the “CORSAIR” brand; subsidiary Corsair Memory is the trademark registrant for “CORSAIR” for its products. US products are protected by a limited warranty, which by its terms is restricted to Corsair products purchased either directly through Corsair or an authorized t reseller. Both Corsair and Choice sell the products on Amazon through their respective Amazon storefronts.

Amazon allegedly permits vendors and third-party sellers to create “variation” relationships between substantially similar products that differ only in specific, narrow ways. A product detail page will display each product in the variation relationship as an alternative. “Owing to the close similarity of products within a variation relationship, the product detail page displays the total number of ratings and the average star rating for all products in a given variation relationship. For example, a product detail page for a shirt may offer for sale the same shirt design in various colors and sizes, displaying the total number of ratings and average star rating for the shirt across the range of colors and sizes offered.” To avoid consumer confusion, Amazon allegedly prohibits vendors from grouping together fundamentally different products within the same variation relationship.

Corsair initially sued Choice for violations of the Lanham Act and the California UCL, alleging that, though Choice isn’t an authorized reseller, it represented “that the Corsair products it offers for sale on Amazon are ‘new’ despite the fact that they are used, closed out, liquidated, counterfeit, and/or non-genuine product of unknown origin.” This opinion dealt only with the counterclaims for trademark invalidity and false advertising.

Choice sufficiently alleged that Corsair Memory abandoned the CORSAIR Mark because its “naked licensing and/or uncontrolled acquiescence of Corsair Gaming’s use of the CORSAIR trademarks has caused the marks to lose trademark significance, and as a consequence, the public no longer associates these marks with a single source of goods or services.” Corsair argued that this claim failed because Corsair and Corsair Memory are related entities. “While it is of course true that use by a trademark registrant’s related company inures to the benefit of the trademark registrant (and thus does not result in abandonment), the term ‘related company’ is specifically defined as ‘any person whose use of a mark is controlled by the owner of the mark with respect to the nature and quality of the goods or services on or in connection with which the mark is used.’” Thus, the corporate relationship alone was insufficient on its own to preclude abandonment; discovery would bear out the facts.

Lanham Act false advertising counterclaims: Choice alleged that Corsair “knowingly manipulates Amazon listings in order to show inflated and unwarranted reviews for its products by misleadingly listing new products as ‘variations’ of pre-existing products, instead of creating new listings for new products,” causing consumers to be “deceived and confused into believing that Corsair Products have amassed significant amounts of positive reviews and high ratings, when, in fact, such reviews and ratings merely relate to a prior product.”

This was plausible on a motion to dismiss. Choice alleged standing through direct competition in the sale of Corsair products. It further alleged that customers wrongly believe the accumulated reviews for the older products belong to, or otherwise endorse, a substantially different product. That sufficed to allege harm. Corsair argued that there was no redressability because Amazon controls the product pages, but the counterclaims specifically alleged that vendors like Corsair Gaming exert control over the variation relationships. And, even assuming that Rule 9(b) applied, the counterclaim sufficiently specified “how Corsair has allegedly created a variation relationship between three different computer monitors despite substantial technological differences.”

UCL unfair competition/NY GBL deceptive business practices: Sufficiently pled with respect to the same conduct covered by the Lanham Act, but not for Corsair’s allegedly unlawful warranty restrictions because Choice didn’t explain how the warranty harmed it. The allegations that “the purportedly unenforceable Corsair Warranty misleads consumers by creating the false impression that Corsair Products purchased through Choice’s Amazon storefront are not subject to the same protections and thus has ‘discouraged and dissuaded consumers from purchasing genuine Corsair Products from Choice Electronics’” were conclusory and wholly speculative.

Likewise, while Choice could refer to state and federal law for its UCL claims, it couldn’t use a violation of section 369-b of the New York GBL as the predicate violation for an “unlawful” UCL claim, because New York wanted only the NY AG to be able to enforce that law. That provision makes unlawful certain warranty restrictions such as those allegedly at issue here.

prefacing statements with "allegedly" or calling them "estimates" doesn't make them nonfalsifiable opinion

V Shred, LLC v. Kramer, 2026 WL 895614, No. 2:25-cv-01341-CDS-DJA (D. Nev. Apr. 1, 2026)

V Shred is a health and wellness company specializing in “online exercise training programs, exercise apparel, and nutritional supplements.”

Kramer is a social media influencer with millions of followers who promotes “online exercise training programs, exercise apparel, and nutritional supplements” and allegedly directly competes with V Shred.

V Shred sued for Lanham Act false advertising, alleging among other things that Kramer uses the catch phrase “Fuck V Shred” on his social media profiles as “a discount code consumers can use” for products promoted by Kramer.

The court found that the complaint alleged some provably false statements, while others weren’t identified specifically enough (though the court granted leave to amend).

As to a video titled “Mini Golf With V Shred in Las Vegas,” it was not enough to allege that this was false because V Shred was not present or in any way associated with the video. “Here, there was no unauthorized use of an image, but rather there was merely a tagline reference to V Shred. The leap from using a tagline to arguing that it equates to promoting the defendant’s products is not plausible. Here, as alleged, there were no products offered for sale and V Shred was not even discussed in the video.” Dismissed with prejudice.

As to an appearance on the “TSL Time” podcast, Kramer allegedly falsely stated “the company of V Shred isn’t owned by a health and wellness company. It’s owned by a marketing agency. Just a bunch of marketing dudes”; he also allegedly stated that V Shred “is a ‘cancer,’ ” “sells ‘crash diets,’ ” that “[principal] Sant is an ‘actor’ who ‘doesn’t know what the fuck he’s talk about,’ ” and that he plans to “knock the legs out from under [V Shred] because they are a garbage company.”  He also allegedly falsely stated that V Shred has “1,200 or 1,300 complaints filed with the Better Business Bureau this past year alone.”

Kramer argued that his statements about ownership were nonfalsifiable opinion, and that his claims about the BBB complaints were an estimate “based on memory.” The court found that both statements were falsifiable, and because he allegedly promoted his own products instead, they could be a commercial advertisement. The “estimate” defense “is essentially an admission that the BBB statements were indeed demonstrably false.”

Finally, Kramer allegedly posted a video stating that “they only pay their coaches $9 per client.” V Shred alleged this statement was false because they pay their coaches different amounts for different types of plans. The qualifier “allegedly” did not save this statement from falsifiability. This was also plausibly an ad; Kramer spent 58 of the 93-second video criticizing V Shred before promoting his own company and attempting to recruit customers, including that he will pay his coaches “double the market standard.”

two cases reach opposite results over whether "health" claims are misleading if products are lead-contaminated

Lopez v. Mead Johnson Nutrition Co., 2026 WL 788492, No. 24-cv-03573-HSG (N.D. Cal. Mar. 20, 2026)

Lopez alleged that Mead infant formulas’ packaging contains deceptive statements that imply that they are generally nutritious and have “no detrimental, harmful, or genetically engineered ingredients.” For example, the challenged labels state that the formulas are “brain building” or “support[ ] brain... development,” and are “recommended” or “trusted” by experts and pediatricians. Others contain statements that the formulas promote immune health, bone health; eye health; were inspired by breast milk; and do not contain artificial colors, flavors, sweeteners, or growth hormones. But independent testing allegedly revealed a presence of arsenic, cadmium, or lead in each of the formulas, and that other infant formulas may be manufactured without detectable levels of heavy metals. She also alleged that consumer surveys revealed that people would expect a company to test for those substances and disclose whether “detectable levels” were found, and that consumers would understand the formulas’ packaging to imply there were no heavy metals.  

The court disagreed, although it rejected Mead’s primary jurisdiction argument and arguments that Lopez couldn’t sue over products with different ingredients from those she purchased (there are milk-based, soy-based or amino-based options), because they were substantially similar in the relevant characteristics to the products she did purchase.  

Lopez did fail to plead that damages would insufficiently compensate her for the alleged overpayment, so her restitution and disgorgement claims failed.

More importantly, her UCL, FAL, and CLRA claims failed. She didn’t allege that any of Mead’s claims were literally false, but rather that “each challenged statement speaks directly to the quality and nutritional benefits of the Products” without mentioning the potential presence of heavy metals. “[T]his argument is based on implausible assertions about what a reasonable consumer would understand the challenged representation to say about the Products…. There is nothing that logically connects an expert’s recommendation or the presence of certain substances in an infant formula with the absence of some other substance.” [Would an expert really recommend feeding a baby cadmium and lead?]

The survey didn’t help. Over 91 percent of a subset of parents answered “yes” to the questions “Do you expect a company to test for arsenic, cadmium, lead, and/or mercury in infant formula that will be fed to infants?” and “Would you expect a company to disclose if there were detectible levels, or risk, of arsenic, cadmium, lead, and/or mercury in an infant formula?” And 77 percent of consumers would not “expect arsenic, cadmium, lead, and/or mercury in the infant formula” after seeing the label. “But these generalized questions to an undisclosed number of people, detached from any legal standard, fail to support the plausibility of Plaintiff’s reasonable consumer allegation.”

Nor did Lopez plead that Mead has a “duty to disclose” because the suppressed facts are “contrary to a representation actually made by the defendant.” The challenged statements read together didn’t represent that the products didn’t contain any detectable levels of heavy metals. “It is not enough for the disclosure to only provide more information about the product.” This defeated all the claims.

Meanwhile: The Court directed defense counsel to show cause why they should not be sanctioned for including a non-existent quotation from Becerra v. Dr Pepper/Seven Up, Inc., 945 F.3d 1225 (9th Cir. 2019). The required response indicated that the quote was actually from a district court case that cited Becerra whose citation was inadvertently deleted. The filing included a screenshot purporting to show that counsel had previously accessed that district court case on Westlaw and specifically disavowed any generative AI use, which was clearly part of the court’s suspicions. “Counsel for Mead Johnson apologizes for the mistake and has informed Mead Johnson of both this error and the Court’s Order.”  

Pellegrino v. Procter & Gamble Co., 2026 WL 880573, No. 23-CV-10631 (KMK) (S.D.N.Y. Mar. 31, 2026)

Plaintiffs brought claims under New York General Business Law §§ 349 and 350, New York Agriculture and Markets Law § 199-a, and negligence per se based on P&G’s marketing of Metamucil, a psyllium fiber supplement.

Plaintiffs alleged that “[t]he labels on the Products suggest ... that [they] are generally healthy and safe for consumption and provide specific health benefits ....” and that they “have been inspected and sealed to ensure each is safe for human consumption” and free from tampering. P&G’s website has a dedicated “Product Safety” section, which discusses the “rigorous safety process” it uses “to analyze every ingredient” used in its products and claims to “go beyond regulatory compliance to ensure every ingredient’s safety through a four-step, science-based process” used by various regulatory agencies, including “US FDA, [the] EPA, the EU, the WHO, and others.” P&G “reassures consumers it ‘define[s] the safe range of every ingredient’ by ‘apply[ing] the same science-based approach as regulatory agencies around the world.’ ” The website specifically states that it does not use “[h]eavy metals” such as “[a]rsenic, [l]ead, [and] [c]hromium” as ingredients in its products.

But the products allegedly “contain dangerous amounts of the heavy metal lead[,]” supported by the results of “[i]ndependent laboratory testing completed in July 2023 by an ISO-accredited laboratory.” P&G allegedly knew this since 2021, when “Consumer Lab published a report concerning the lead content of various psyllium fiber supplements, showing up to 14.6 μg of lead per serving in Metamucil Sugar Free Orange Flavored.”

P&G argued that plaintiffs didn’t allege facts sufficient to show that the products they purchased actually contained dangerous amounts of lead. The court agreed in part; it didn’t think there was enough detail in most of the independent testing allegations.

“To validly assert an injury under a price-premium theory, a plaintiff must ‘allege[ ] facts demonstrating it is at least plausible that a plaintiff purchased a misbranded product.’ ” Plaintiffs can test the products they personally purchased, but “[c]aselaw in this Circuit recognizes ... that it may not always be possible to test the actual product purchased by a plaintiff.”

John v. Whole Foods Mktg. Grp., 858 F.3d 732 (2d Cir. 2017), accepted the results of a third-party investigation, which found the defendant’s pre-packaged foods were mislabeled 89% of the time. “[T]he samples in the independent investigation included the particular type of products that the plaintiff bought from the two store locations where he bought the products during the same time period in which the plaintiff made his purchases.” John requires plaintiffs to “meaningfully link the results of their independent testing to the product actually purchased.” This can be done, for example, “by showing that the mislabeling was systematic and routine.”  Relevant factors include temporal proximity, geographic proximity of the testing to the plaintiff’s purchases, the number of samples tested, and the name and testing methodology of the tester. “The pleading also should disclose the number of samples tested, and the testing should involve more than a small number.”

Only one plaintiff’s claims survived this inquiry. The court declined to dismiss those claims on the grounds that plaintiffs didn’t show that the amount of lead was dangerous: what constitutes too much lead is a fact question, and plaintiffs alleged that “[t]here is no level of exposure to lead that is known to be without harmful effects” and “[t]here is no known safe blood lead concentration.”

P&G argued that “[s]everal of the representations Plaintiffs challenge are structure/function claims that are authorized by the [Federal Food, Drug, and Cosmetics Act (the “FDCA”),]” which “expressly preempts Plaintiffs’ attempt to attack these structure/function claims as deceptive under state law.” The Second Circuit hasn’t weighed in on the relevant preemption provision, but the court here applied the rule that “there are two ways plaintiffs may escape preemption under that provision: (1) if their claims seek to impose requirements that are identical to those imposed by the FDCA; or (2) if the requirements plaintiffs seek to impose are not with respect to the sort described in [that part of the statute].”

Plaintiffs do not assert that Defendant failed to adhere to the labeling requirements posed by the FDCA, nor do they quarrel with the effectiveness of the Products or the primary ingredients that are in the Products. Instead, Plaintiffs claim that the representations Defendant made about the Products are false and misleading because the Products contain undisclosed amounts of lead….  Because “Plaintiffs’ argument is that the representations Defendant has made about its Products are false and misleading, ... Plaintiffs do not attempt to impose any additional requirements on Defendant other than those already imposed by the [FDCA].”  

The issue wasn’t whether the structure/function claims were false in the abstract, but whether these products were contaminated with lead.

Stating a claim under GBL §§ 349 and 350: Plaintiffs alleged that various statements on the Products’ packaging “suggest to reasonable consumers that the Products are generally healthy and safe for consumption[ ] and provide specific health benefits,” but these “statements and suggestions ... are false and misleading because the Products’ high lead content means the Products are, in fact, neither healthy nor safe for regular consumption.”

P&G argued that the challenged statements didn’t explicitly say the Products are healthy and safe for consumption and “courts have rejected efforts like Plaintiffs’ to ‘allege[ ] that a consumer will read a true statement on a package and will then ... assume things about the products other than what the statement actually says.’ ”

But the reasonable consumer test is usually a question of fact unless a plaintiff’s proposed reading is “patently implausible and unrealistic.” So the court proceeded to evaluate specific package statements.

“#1 Doctor Recommended Brand”: Bates v. Abbott Lab’ys, 727 F. Supp. 3d 194 (N.D.N.Y. 2024), aff’d, No. 24-CV-919, 2025 WL 65668 (2d Cir. Jan. 10, 2025) (summary order), rejected an argument “#1 Doctor Recommended Brand” was actionable under the GBL because the product—a nutrition drink—had added sugar. But “[a] consumer who agrees that any added sugar in a nutrition drink undermines its health benefits can obtain that information from the label,” which listed sugar as an ingredient, so “#1 Doctor Recommended Brand” was not misleading. But “the deception alleged here is different in kind than that alleged in Bates, both in terms of the scope of the omission (some disclosure about the sugar versus none about the lead) and the danger presented by the ingredient at issue (lead versus sugar). And, this difference is dispositive because the complete failure to mention the presence of a harmful substance such as lead makes any claim about the Products’ brand being doctor recommended plausibly misleading since it suggests that ‘the Products have been evaluated and approved by doctors as healthy and safe when taken as directed.’”

However, it was not plausible that claims that the packaging was tamper-evident misled reasonable consumers by “reassur[ing] [them] that a product is free from toxic adulterants like lead.” This wasn’t a case about tampering.

So too with the “Better Choices for Life” statement that appears as part of the American Diabetes Association seal on the packaging. When viewed in context of the logo in which it appears, no reasonable consumer could read “Better Choices for Life” as anything other than an endorsement by the American Diabetes Association.

“Helps Support: Appetite Control* ... [and] Digestive Health*”: Even though the challenged statement refers to “the specific effects of consuming fiber” and not the overall ingredients, deceptiveness was a fact question.

Omission: P&G argued that, because a March 2021 Consumer Lab report revealed that lead was found in various Metamucil products, plaintiffs couldn’t allege that its presence was “material information” that was exclusively within P&G’s control. Some courts interpreting NY law have gone so far as to require plaintiffs to plausibly allege they “could not ‘reasonably have obtained the [omitted] information[,]’ ” with “[o]ne example—though not the only example—of how to meet that standard is if the defendant ‘alone possesses [the omitted] information.’ ” Figuring out whether the information was discoverable by a reasonable consumer would require factual development.

"carbon neutral" not plausibly misleading where D bought offsets from 3d-party certifiers, despite methodological disputes

Bell v. R.J. Reynolds Vapor Co., 2026 WL 915295, No. 25-cv-04521-TLT (N.D. Cal. Feb. 20, 2026)

Bell brought the usual California claims based on RJR’s alleged misrepresentation of its products’ carbon neutrality. The court dismissed the complaint.

RJR labeled its Vuse as the “first carbon neutral vape brand,” based on the purchase of carbon-offset credits created from projects that aimed to reduce their carbon emissions. RJR purchased credits through certification by third-party organizations such as Verra and Vertis, mostly reforestation and forest protection projects between 2021 and 2024. Bell alleged that these projects “do not provide genuine, additional carbon reductions” because “forestry activities that would have occurred anyway” or lands were “already at minimal risk of deforestation.” The complaint alleged both consumer surveys and confirmation of the lack of impact through publicly available data, news reports, project documentation, satellite imagery, and third-party evaluations.

Bell’s price premium theory properly alleged standing, but that was it. There’s no statutory definition of “carbon neutrality.” “Merriam-Webster provides a dual definition for the term as (1) having or resulting in no net addition of carbon dioxide to the atmosphere; or (2) counterbalancing the emission of carbon dioxide with carbon-offsets.” And plaintiffs failed to plausibly allege that a reasonable consumer would adopt an interpretation that carbon neutrality must mean no additional carbon emissions to the atmosphere and that RJR must have conducted an independent, primary-source verification of the carbon-offset project. RJR truthfully disclosed its reliance on the third-party verification. “The third parties are allegedly independent organizations that have operated for decades and manage leading standards in the global carbon market.” Though Bell disagreed, disagreements over “statistical methodology and study design” are generally insufficient to allege a materially false statement. Although Bell alleged consumer surveys and studies showing that a significant portion of consumers prefer carbon-neutral products, the complaint failed to plausibly allege how these consumers would reject third-party certifications. “Given the complexity of carbon emission and the fact that Defendants explicitly described achieving carbon neutrality through third-party certifications that further described how underlying projects achieve offsetting carbon emission, the Court finds that a reasonable consumer would not view Defendants’ conduct as inherently counterfactual nor unreasonable.”

the continuing merger of TM and the right of publicity: court can't tell the defenses apart

Upper Deck Co. v. Pixels.com LLC, No. 3:24-cv-00923-BAS-DEB, 2026 WL 776227 (S.D. Cal. March 19, 2026)

Eric Goldman’s discussion. Upper Deck makes sports memorabilia (including sports player trading cards), and has exclusive licensing agreements with various athletes, including famous basketball player Michael Jordan, to use their names, images, and likenesses. Pixels is an online company, selling print-on-demand décor, photographs, wall art, prints, and other similar products. Pixel allows people to upload images and to sell physical prints of those images on its sites. Those included framed prints of Upper Deck’s trading cards featuring Jordan, and other prints displaying Jordan’s likeness. Upper Deck sued for false affiliation/endorsement, false advertising, and unfair competition; trademark dilution; trademark infringement; and right of publicity claims. The court mostly allowed the claims to proceed, with some subtractions.

Those subtractions included the dilution claim: Upper Deck’s registered hologram mark was not sufficiently famous among the general consuming public. However, trademark infringement claims based on the use of (non-hologram) reproductions of the hologram mark survived, despite Pixels’ argument that the one product containing the Upper Deck Hologram Mark listed on its website was never actually sold. Also, a copy of the 1986-87 Fleer Michael Jordan Rookie Card was sold at an auction for $840,000, while the framed print of that card offered for sale on Pixels’ website was priced at $70.

The same result occurred for Lanham Act false advertising and false affiliation claims based on Pixels’ advertisement and sale of products displaying Jordan’s trademarks on its website.

False advertising: The court found that Upper Deck identified a “false statement of fact” by Pixels in a “commercial advertisement about its own or another’s product,” via Pixels’ advertising of products containing Jordan’s trademarks on its website. The court analogized to the use of a kosher certification mark, which doesn’t seem to be analogous in materiality terms. Also, “the fact that some of the images are accompanied by the names of the persons uploading the images on Pixels website does not undermine the misleading nature of Pixels’ use of Jordan’s trademarks in advertising its products.” No further explanation.  

False association: “To establish proximate cause for false association claims, it is sufficient to demonstrate misuse of the relevant mark is likely to cause consumer confusion.” No materiality or harm requirement.

Upper Deck, as licensee for Jordan’s publicity rights, was also able to bring its publicity rights claims, including a publicity rights violation as a predicate violation for UCL claims (if there was no adequate remedy at law).

There were statute of limitations issues. The analogous limitations period for Lanham Act violations in California is four years; two years for the common law right of publicity; and four years for the statutory right of publicity, statutory unfair competition, and common law unfair competition. The specific images that fall within those time frames could be addressed by motions in limine.

I often tell my students that courts interpret the federal and state dilution laws as closely together as they can (with the partial exception of fame) because no one wants to do two dilution analyses, no matter whether the laws are written differently. I predicted that this would also become true of post-JDI Rogers/right of publicity defenses and here I am proven right: Apparently unable to recognize that, in theory, Rogers is the Ninth Circuit test for First Amendment limits on trademark and transformativeness is the Ninth Circuit test for First Amendment limits on the right of publicity, the court here rejects them both because Pixels is supposedly making trademark use of Upper Deck’s marks (that is, the basis recognized by JDI, but until now not part of transformativeness). And it does so because … Upper Deck’s trademarks, including Michael Jordan’s likeness, appear in the images and are thus serving as source indicators. “The pictures and photographs of Jordan displayed in Pixels’ products at issue in this action are source-identifying insofar as they contain Jordan’s Marks.” Bad reasoning all around. Pixels could still argue expressive use “insofar as it is relevant to the likelihood of confusion analysis at trial.” But ROP violations don’t require confusion—so I guess Pixels just loses?

CDA 230: Pixels is a “publisher or speaker” for advertising and curating content on its websites, but not for selling and distributing physical products. “Pixels does not create the illicit images of products uploaded and displayed on its site, and Pixels’ website search engine and content filtering tools do not contribute to the creation of those products.” This gets rid of display-only ROP and other state law violations (because the Ninth Circuit says state-law ROP claims aren’t exempted IP claims), but keeps the rest (e.g., claims based on Pixels’ contracting with vendors to manufacture and ship products, facilitating product returns, and offering a money-back guarantee).

Washington Supreme Court rejects private standing for discount misrepresentations

Montes v. Sparc Group LLC, 2026 WL 900481, No. 104162-4, --- P.3d ----, 2026 WL 900481 (Wash. Apr. 2, 2026)

Interpreting the Washington Consumer Protection Act, the state supreme court held, over a dissent, that buying products that are falsely advertised as discounted doesn’t cause actionable injury if the products aren’t worth less than was paid for them. This answered a question certified by the 9^th Circuit. (California law is otherwise.)

“Any person who is injured in his or her business or property” may sue to enforce the CPA. Only economic losses count as injuries to “business or property” under the CPA—noneconomic losses, such as “personal injury, ‘mental distress, embarrassment, and inconvenience,’ ” do not count. 

Montes alleged that she purchased $6.00 leggings at their advertised $6.00 price because they were discounted from the advertised regular price of $12.50; but in fact the leggings had rarely sold for $12.50. Since she received the product she sought to obtain, and didn’t allege that its non-price qualities differed from those advertised, she had no claim even if the reason for her purchase was that the seller misrepresented the product’s price history.

The court rejected three theories of injury: (1) the class “would not have purchased the items at the prices they paid had they known the items had not been regularly offered at the higher list price” (the “purchase price” theory); (2) they didn’t receive the benefit of the bargain: they “did not enjoy the actual discounts Aéropostale represented and promised them”; and (3) the deceptive pricing scheme inflated demand, which in turn inflated prices: “[b]ut for the false advertising scheme, Aéropostale would have had to charge less money for its products in order to enjoy the same level of demand for its products.”  These were just disappointed expectations. “Without more, the mere fact of a retail transaction does not imply economic loss.”

The majority followed the New Jersey Supreme Court: “even though Aéropostale’s alleged practices violated the state’s CFA, even though those practices violated a specific state regulation barring false discount advertising, and even though New Jersey consumer protection law recognizes the purchase price and benefit of the bargain theories of loss, plaintiffs failed to establish that the violation caused an ascertainable loss under either of those theories.” The AG could act, but not a private plaintiff.

And the complaint’s allegations didn’t support the theory that the deceptive pricing scheme inflated the market price of the leggings she bought. Plaintiff conceded the leggings had the monetary value that she paid for them: “the Leggings that Ms. Montes received had an actual value of between $5.00 and $6.00—the price range Aéropostale regularly offered them for sale.”

The dissent would have read the CPA more broadly. Montes could establish injury through a “price premium” theory by proving that the deceptive or misleading price history artificially increased demand for the leggings, causing an increase in the product’s market price. “The Ninth Circuit does not ask us whether Montes will prevail in her CPA claim, specifically whether she can quantify and prove damages. The majority imports a requirement for such proof into its injury analysis and in doing so narrows the scope of cognizable injuries under the CPA”:

Taking the allegations in the complaint as true, Montes would not have spent $6 on this pair of leggings if she had known the product’s true price history. To view this as a pure causation question would “render absurd conclusions” because it is Aéropostale’s affirmative misrepresentation that led Montes to purchase the leggings, and it is the purchase itself that constitutes a cognizable injury in these circumstances. Stated differently, Montes’s property interest was diminished because Aéropostale’s misrepresentation prevented her from, for instance, spending $6 elsewhere on another item; she is not required to prove that the leggings are not worth $6.

Beyond the Dog's tactics in employment dispute may have been beyond the pale

Beyond The Dog, LLC v. Salzer, 2026 WL 884140, No. 3:24-cv-1439 (VAB) (D. Conn. Mar. 31, 2026)

Plaintiffs (BTD) sued defendants Salzer and Canine Behavioral Blueprints, LLC over a failed working relationship, resulting in claims for trade secret misappropriation, breach of contract, unjust enrichment, unfair competition, and related counterclaims. I’m going to focus on the advertising-related claims, but some breach of contract claims survive for trial.

Beyond the Dog is a Missouri dog-training business. Dr. Salzer signed its Trainer Non-Compete Agreement /Employment Agreement, which contained restrictive covenants, confidentiality provisions, and a carveout for “[a]ctivities solely for academic purposes and not-for-profit.” During her employment, plaintiff Echterling-Savage supervised Salzer and worked with her on dissertation-related research. The dissertation was published through the University of Kansas. The relationship deteriorated after Salzer moved to Connecticut, started working with a local SPCA and a business called Our Companions, and opened Canine Behavioral Blueprints (CBB).

Plaintiffs took steps to protect contractual and confidentiality interests they believed remained in effect, including sending a letter to the MSPCA, communicating with a third party about CBB, and attending a public Our Companions seminar presented by Salzer. This allegedly interfered with Salzer’s professional opportunities and contributed to the cancellation of her lecture series and the end of her work with Our Companions.

If you want to know how this litigation is going: Previously, the court granted a preliminary injunction against plaintiffs’ use of agents to pretend to be potential clients of defendants in order to obtain defendants’ business documents, or any other covert corporate espionage activities; communication with the MSPCA and Our Companions or with any other of Salzer’s employers or business relationships regarding Dr. Salzer or the claims of this litigation except for the purposes of discovery; or following, or engaging agents to follow, Salzer, park outside her house, places of employment, or at her clients’ houses, or otherwise communicating or speaking with Salzer; telling any third party that Salzer breached her contract with Beyond the Dog or misappropriated trade secrets or confidential information; and “initiating or otherwise promoting further proceedings with the University of Kansas regarding the issues of this litigation.”

Common-law unfair competition under Missouri law: This requires passing off. Here the allegations were, in essence, reverse passing off, and Dastar has much to say. [Although Dastar was federal law specifically interpreting the word “origin” in the Lanham Act, its rationale supports the idea that state laws are preempted by copyright if they don’t follow Dastar.]

Beyond the Dog argued that its unfair competition claim “targets deceptive marketplace conduct non-attribution in credentialing and promotion,” because “CBB’s intake process mirrors BTD’s distinctive two-part system (front-end prompts and non-public back-end scoring that generates a protocol-oriented report), reinforcing a false impression of origin and distinctiveness in the services Defendants sell.” That did not get the job done. “The Supreme Court foreclosed this type of non-attribution or methodology-based claim … in Dastar.”

CUTPA counterclaims: The Connecticut Unfair Trade Practices Act provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce” and gives a private right of action to a person who suffers an “ascertainable loss of money or property, real or personal.” Defendants argued that their acts targeting Salzer arose from “employment-relationship enforcement, not marketplace conduct.” They also argued that there was no actionable harm because their letter to the MSPCA “did not accuse Dr. Salzer of any wrongdoing,” that it was sent “to ensure non-disclosure, not to interfere with her employment,” and that MSPCA “has continued to employ Dr. Salzer and has even given her a raise.”

Although an employment relationship doesn’t constitute trade or commerce under CUTPA, a jury could find that the acts of which plaintiffs are accused didn’t arise solely from an employment relationship. After all, Salzer’s non-profit work was “specifically excluded from the scope of her Agreement with BTD,” but they targeted the MSPCA anyway. Likewise, plaintiffs allegedly attended Salzer’s seminar, sought access to her presentation materials, and attempted to interfere with Dr. Salzer’s teaching activities and her relationship with Our Companions. Repeatedly dangling the prospect of a recommendation letter, then refusing to provide it unless she agreed to relocate and work for them in Dallas, Texas, allegedly harmed Salzer’s ability to obtain certification and referrals in Connecticut. And the “mystery shopper” activity could be justified pre-suit investigation or instead conduct that a reasonable factfinder could deem deceptive or unfair under CUTPA.  In addition, sending a takedown notice to the University of Kansas could be part of the counterclaim, given that the dissertation was allegedly “used ‘solely for academic purposes’ and thus ‘exempt’ from Dr. Salzer’s non-disclosure agreement with BTD,” and allegations that “BTD made demonstrably false allegations to protect non-existent legal rights knowing that an academic misconduct investigation into Dr. Salzer’s dissertation could be reputationally ruinous.”

For similar reasons, the tortious interference counterclaims survived, as did defamation per se (accusations of theft can be per se defamatory), subject of course to proof and potential defenses like truth or privilege. Connecticut common-law unfair competition is narrower than CUTPA, but that claim also survived. A reasonable jury could find “justified, limited enforcement conduct,” or “fraud, misrepresentation, intimidation or molestation, or that the defendant acted maliciously, in interfering with the plaintiff’s business prospects.” Similarly, negligent infliction of emotional distress survived because it targeted conduct “beyond an ordinary employment-termination dispute or distress arising solely from litigation.”