statements about legality of service were factual/falsifiable

Allied Servs., LLC v. Smash My Trash, LLC,  2021 WL 3354839, No. 21-cv-00249-SRB (W.D. Mo. Aug. 2, 2021)

Allied, aka Republic, “provides waste and recycling services to business and residential customers in the Kansas City metropolitan area.” It supplies dumpsters and open top roll-off waste containers to its customers. This equipment is designed and constructed only to collect a customer’s ordinary waste. Their agreements with customers provide that the equipment is Republic’s property and that the customer is liable for any loss or damage to it.

Smash provides mobile waste compacting services in the Kansas City metropolitan area using “Smash Machines,” 25,000 pound trucks with hydraulic booms and three-ton spiked, rotating metal drums. (Awesome.)

Republic alleged tortious interference, trespass/conversion, and false advertising claims.

Lanham Act false advertising: Smash’s website FAW said:

Will my waste company let me Smash my trash? It’s not their waste, it’s yours. Well established legal doctrines protect your rights to manage your waste while under your control at your facility. This includes the right to Smash your trash.

First, the complaint adequately alleged that the challenged statements weren’t merely opinion. “Statements about the status of a case or one’s ... property rights are not necessarily subjective opinions and are generally verifiable ... [t]hat a court of law need ultimately determine the truth or falsity of these statements does not render them ‘opinion’ statements.”

Second, Republic adequately alleged literal falsity by alleging that Missouri law does not recognize this purported “right.” Republic also alleged falsity by necessary implication: Republic’s customers were allegedly “led to believe that they are legally entitled to utilize Republic’s containers to have their waste compacted by Smash’s mobile compaction service.”

Materiality: It was sufficient to allege that “Smash has falsely led Republic’s business customers to believe that the company is both aware of and has no objection to Smash’s misuse of the Equipment and also that Republic’s customers nevertheless have the unfettered ‘right to Smash their trash’” along with allegations that “Republic’s business customers have contacted it to cancel and amend Agreements, and in some instances, they have refused to follow Republic’s direction that the Equipment may not be used by Smash for its mobile waste compaction services.”

Causation/injury:  Again, it was adequately alleged that the statements “caused Republic’s customers to breach their Agreements, have resulted in the denial of access to its Equipment, have interrupted regularly scheduled hauls, have led to damage to its containers, and have harmed its reputation with its customers.” Only that last one is traditional false advertising damage—the others don’t really seem to fall within the usual zone of interests—but ok!