are fake reviews actionable if the review content is just puffing?

Marksman Security Corp. v. P.G. Security, Inc., 2021 WL 649821,  No. 19-62467-CIV-CANNON/HUNT (S.D. Fla. Oct. 12, 2021) (R&R)

The magistrate judge joins the split over fake reviews, adopting the position—which I think is wrong—that concededly fake reviews that only include puffery in their content are nonactionable, despite the non-puffing fact of whether the reviews reflect an actual experience with the reviewed product/service.

Marksman sued defendants, who compete with it to provide private security and concierge services in South Florida, for creating an Instagram account that bore Marksman’s name, as well as purchasing domain names similar to Marksman’s that when accessed sent consumers to defendants’ website instead (e.g., marksmensecurity.com and some other TLDs). The magistrate recommended finding an ACPA violation and awarding attorneys’ fees (there was some litigation misconduct).

The Instagram “Marksmansecurity” account, which used Marksman’s logo, said: “We claim to be the best security company but we are not! Our employees steal from clients, we lie to our clients and we sue them if need be.”

Also, defendants paid acquaintances and other people $10 to post five-star positive reviews online about Defendant PG’s services on Google.

Reviews paid for by the reviewed party were commercial speech.  And the reviews were false: “Defendants paid for positive reviews from at least three individuals who never lived in a building that Defendant PG serviced. … These reviews are false and misleading representations of Defendants’ services.” But the reviews were not material because they contained only puffery: the “best,” “great company,” “great company to work for,” and keep “buildings safe and comfortable.” I don’t see how this makes sense: puffery can influence consumers, which is why businesses use it, and a consumer who knew the truth—that these reviews were not posted by people who had actually used the services—would certainly discount them. But anyway—plaintiffs also couldn’t show injury in lost sales or otherwise.

The judge didn’t explicitly rule on the Instagram account, but denied injunctive relief because the account had been deleted and the domain names transferred. However, it did find that this case was exceptional, with reasoning that seems quite cursory: the domains were purchased in bad faith, and “Defendants deliberately engaged in actions using Plaintiff’s marks for their own profits. Regardless of whether Defendants were successful, such actions qualify this case as an exceptional one.”