individual pitches/RFPs are advertising/promotion, but not user support/FAQ pages

Spotlight Ticket Management, Inc. v. Concierge Live LLC, No. 2:24-cv-00859-WLH-SSC, 2024 WL 4866813 (C.D. Cal. Aug. 30, 2024)

Spotlight provides ticket and event management enterprise solutions. It entered into an exclusive agreement with Ticketmaster, a ticket sales and distribution company, giving it “the exclusive right to directly integrate its technology with Ticketmaster’s software and systems platform.” Integration means “the ability to access Ticketmaster’s application programming interfaces (‘API’) to automatically and directly move Ticketmaster tickets without needing to go through the Ticketmaster website....” In exchange, Spotlight pays Ticketmaster an annual fee and a percentage of its revenue—millions of dollars for “a significant competitive edge in relation to its competitors.”

Concierge competes with Spotlight to provide similar ticket and event management services. Spotlight alleged that Concierge falsely advertised through its “public website, marketing materials, and direct communications with potential clients” in pitch meetings that it has the same functionality and integration capability with Ticketmaster as Spotlight does, and falsely characterizes Spotlight’s relationship with Ticketmaster as merely a marketing agreement, and not an exclusive agreement.

For example, Spotlight alleged that it lost out on a pitch to an online food ordering and delivery company because Concierge “falsely represented... that it could perform all the same functionality as [Plaintiff]—including integrations with Ticketmaster—but for a lower cost.” It brought false advertising claims under California and federal law along with tortious interference claims.

When brought by competitors, California UCL/FAL claims are basically Lanham Act claims, so they were analyzed together; the court applied Rule 9(b)’s heightened pleading standard, and found that the complaint passed it because it identified several specific pitches/requests for proposals. “While Plaintiff fails to allege the ‘who’ including the individuals present at the meetings (other than the Defendant and the entity issuing the RFP), the ‘where’ including the location or place of the pitches/RFPs, and the specific content of the allegedly false representations including a statement about why each statement is false, this is because Plaintiff was not in the room during the pitches.”) Spotlight provided enough, including discussing whether the statements were contained in marketing materials, the RFP, or were provided orally.

However, applying the Lanham Act’s “commercial advertising or promotion” requirement to both state and federal claims, some of the alleged false statements didn’t qualify. Specifically, Concierge’s public website’s user support articles weren’t advertising. The titles included “How do I add Ticketmaster inventory into Concierge Live?” and “How do I add Ticketmaster inventory into Concierge Live?” Plaintiff’s characterization of these as “marketing materials” did not persuade the court, since they were under the support subdomain, and the content was “written in a question-and-answer format suggesting that this material is a guide for users of Defendant’s platform.” These were “more akin to guides or instruction manuals and not commercial advertisement.”

Tortious interference with contractual relations: Spotlight didn’t sufficiently allege Concierge’s knowledge of its contract with Ticketmaster or the exclusive agreement; it wasn’t enough to allege that Ticketmaster issued a public letter in 2021 stating that it was in an exclusive partnership with Spotlight.

Tortious interference with prospective economic advantage: There was no independent tort alleged other than the alleged misrepresentations on Concierge’s website, which the court had just held not actionable.