claims to fill a gap in the market are puffery

Tracy Anderson Mind & Body, LLC v. Roup, 2022 WL 17670418, No. CV 22-4735-RSWL-Ex (C.D. Cal. Dec. 12, 2022)

Plaintiffs sued defendants for copyright infringement, violation of the Lanham Act, breach of contract, and violation of unfair competition law; copyright and breach of contract claims survived a motion to dismiss but the others didn’t.

Anderson alleged that she developed the Tracy Anderson Method—routines combining choreography, fitness, and cardiovascular movement—after decades of research, development, testing, and investment. Anderson is the founder and CEO of plaintiff TAMB, which offers choreography-based fitness and mat movement classes and owns copyrights to various media, including DVDs created by and featuring Anderson, that “express, relate to, or are based on, the TA Method.” One of TAMB’s subsidiaries employed defendant Roup for six years as a trainer and Roup signed an NDA covering  “nonpublic business and operation information, training materials and manuals, and transcribed methods ... including those comprising the TA Method’s proprietary choreography movements.” [Not sure how those could be nonpublic, but ok.]

You can guess what happened next: Roup left TAMB and founded a competitor.

The copyright claim was adequately pled: TAMB provided registrations for 19 motion pictures and alleged that defendants’ videos “infringe on [Plaintiff TAMB’s] copyrights by copying the choreography movements, sequences, and routines depicted in the [copyrighted works]; organizational structure and format of the [copyrighted works]; and aesthetic elements depicted in the [copyrighted works].” [Seems like there may be some idea/expression and merger issues forthcoming.] Defendants’ argument that “functional exercise movements are not copyrightable” could not be resolved at the motion to dismiss stage. [Some courts would at this stage compare the works and ask whether there was anything there that could be infringed, but not all.]

False advertising: Plaintiffs alleged that the following statements from Roup’s website bio were false or misleading: “I knew that there was something missing from the boutique fitness community, so I combined my passion for dance and love for fitness to create The Sculpt Society. I spent years teaching fitness and developing The Sculpt Society method before launching in 2017.” This allegedly falsely implied that (1) Roup developed the “TSS Method” over a period of multiple years, when she did not; (2) the “TSS Method” was created through years of science-based research, development, data collection, analysis, and trial and error, when it was not; and (3) the “TSS Method” is significantly different from the “TA Method,” when it is not.

“Claims that a defendant invented a product to fill a gap in the market, and the resulting implications regarding the innovativeness of a defendant’s product, constitute puffery rather than an assertion of fact.” The statement about the creation of TSS “conveys a general, vague, and unmeasurable assertion regarding inventorship and the innovativeness of Defendants’ products.” Likewise, Roup’s statement that she “spent years teaching fitness and developing The Sculpt Society method before launching in 2017” was another general and vague assertion of inventorship, and plaintiffs’ own argument was that Roup “spent years teaching fitness.” “Moreover, it is unlikely a reasonable consumer would rely on these statements as an objective, measurable statement of fact.” Because the statements were puffery, they wouldn’t mislead consumers to believe that the TSS method was created through science-based research or significantly different from the TA method.

California UCL fraud claims failed, because plaintiffs didn’t plead that they relied on Roup’s alleged misrepresentations. UCL unfairness claims failed because, in a competitor lawsuit, plaintiffs needed to argue that the alleged misconduct threatens an incipient violation of an antitrust law or has effects comparable to a violation of an antitrust law, and they didn’t.

Breach of contract claims survived.