Friday, November 19, 2021

Even in a small market, a few varied phone calls aren't commercial advertising or promotion

Meredith Lodging LLC v. Vacasa LLC, No. 6:21-cv-326-MC, 2021 WL 5316986 (D. Or. Nov. 15, 2021)

Previous motion to dismiss. Plaintiff attempted to plead that a small number of calls to people contracting with it constituted “commercial advertising or promotion,” but the court still didn’t buy it.

The parties compete to manage vacation rental properties located in Oregon, and plaintiff alleged a smear campaign against it. Plaintiff alleged that the potential purchasing public was homeowners under contract with it in Lincoln and Deschutes Counties, because that was where the calls with allegedly false claims went, but didn’t explain why that was the market and not also two other counties where plaintiff alleged similar homes were located. But even if that’s the market, about 520 homeowners, that didn’t make a handful of calls with varying contents “sufficiently disseminated” to constitute advertising or promotion.

“While a common theme of attempting to persuade homeowners to switch management companies existed throughout, none of the calls followed a predetermined script. Plaintiff identified only: (1) two phone calls that didn’t allege any false statements; (2) three phone calls alleging cleanliness complaints against it; (3) two phone calls alleging increased revenue for customers who switched; and (4) a phone call where a customer was allegedly misled into thinking the caller worked for plaintiff before he tried to persuade her to switch. Additionally, instead of targeting specific homeowners during specific times, these calls were placed sporadically throughout late 2020 and early 2021 and targeted homeowners who lived in different states and owned homes in different parts of Oregon.” In Grubbs v. Sheakley Grp., Inc., 807 F.3d 785 (6th Cir. 2015), by contrast, the defendant sent identical emails to each of the plaintiff’s 22 customers to inform them that defendant would be taking over plaintiff’s responsibilities. Ten out of 500 customers, at varying times with varying messages, just isn’t enough. Under these circumstances, the court wasn’t willing to infer that, “because a false or misleading statement was allegedly made to one homeowner it was also made to hundreds of others, therefore constituting sufficient dissemination.”


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