handful of bad Amazon reviews make Energizer's false advertising claims plausible

Energizer, LLC v. MTA Trading, Inc., 2021 WL 2453394, No. 20-CV-1583 (MKB) (E.D.N.Y. Jun. 16, 2021)

Along with breach of contract and tortious interference claims, Energizer alleged that MTA falsely advertised by selling batteries with Energizer’s mark and then by fulfilling orders with products different from those advertised and shipping batteries to consumers that were “used, aged, or tampered-with.” In seven consumer reviews quoted in the complaint, the reviewers report that batteries sold by the relevant account did not work or were not as advertised.

Defendants argued that Energizer failed to state a false advertising claim because it relied on seven pieces of negative feedback without explaining whether they were representative, and didn’t allege details about how the batteries were advertised, such as whether they disclosed repackaging or advertised an expiration date (two subjects that came up in the negative reviews). It argued that there are plausible alternative explanations for the negative reviews, including that Amazon shipped and fulfilled the products (and might well have sent them from another seller, which does seem to be a thing with Amazon sales) or that competitors were leaving fake negative reviews. That’s a fascinating Twiqbal issue, it seems to me: at what point do Amazon’s problems become part of common sense?

The court found the Lanham Act allegations adequate. Energizer alleged that defendants advertised their batteries as “new,” and also advertised the batteries in certain quantities, but instead, the batteries were not new and were inoperable or had insufficient charge, and the shipments sent to consumers were short of the quantities they ordered. That was specific enough.

The additional arguments might work, but not on a motion to dismiss.