BHR Recovery Cmtys., Inc. v. Top Seek, LLC
355 F. Supp. 3d 416
E.D. Va.2018Background
- Broad Highway Recovery (Virginia) alleges Top Seek changed the phone number on Broad Highway's Google business listing to an 804 (Virginia) number that forwarded callers to out-of-state treatment providers, diverting customers.
- Top Seek contracted to generate leads for Life Solutions and obtained an 804 tracking number through Call Box; Broad Highway discovered the altered Google listing on March 2, 2017.
- Top Seek allegedly used anonymizing tools (fake Gmail, YOPmail, masked IP) when making the change; communications thereafter connected Broad Highway callers to Michigan facilities and Life Solutions personnel.
- Broad Highway sued asserting six counts: (1) unauthorized use of a name (Va. Code § 8.01-40); (2) Virginia Consumer Protection Act (VCPA); (3) business conspiracy; (4) Lanham Act § 1125; (5) Va. Code § 18.2-214; and (6) Va. Code § 18.2-216.
- Top Seek moved to dismiss for lack of personal jurisdiction and for failure to state claims; court allowed limited jurisdictional discovery, dismissed some original defendants, then addressed amended complaint.
- Court found it has specific personal jurisdiction over Top Seek and dismissed Counts 1–3 with prejudice; Counts 4–6 survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction | Top Seek directed electronic activity at Virginia by changing Broad Highway's Google listing and using a Virginia (804) number to target VA callers. | Top Seek argued lack of sufficient contacts/authority to change listing. | Court: Specific jurisdiction exists under ALS Scan sliding-scale/internet test; contacts arose from alleged conduct. |
| Unauthorized use of a name (Va. Code § 8.01-40) | Broad Highway says its trade name was used without consent. | Statute applies only to natural persons; a corporation is not a protected "person." | Court: Dismissed Count 1 with prejudice; statute limited to natural persons. |
| VCPA (Va. Code § 59.1-200) | Top Seek's misrepresentation (phone change) deceived consumers and harmed Broad Highway. | VCPA requires reliance by the plaintiff/consumer; Broad Highway did not plead detrimental reliance. | Court: Dismissed Count 2 with prejudice for failure to plead reliance and standing issues. |
| Business conspiracy (Va. Code §§ 18.2-499/500) | Broad Highway alleges Top Seek conspired to injure its business. | No particular allegation of combination or agreement with a co-conspirator (Google or others). | Court: Dismissed Count 3 with prejudice for failure to plead conspiracy with particularity or plausibility. |
| Lanham Act § 1125(a) | Top Seek used Broad Highway's trade name on Google listing in commerce to mislead callers; likely confusion resulted. | Denies requisite use/authority; factual disputes. | Court: Denied dismissal; complaint plausibly alleges trade name ownership, use in commerce, and likelihood of confusion. |
| Va. Code § 18.2-214 (removal/alteration of trademark) | Altering the phone number on the Google listing effectively removed/altered Broad Highway's identification. | Statute traditionally targets physical articles/devices; Top Seek disputes applicability. | Court: Denied dismissal; pleadings suffice at this stage to state a civil claim under the statute via § 59.1-68.3. |
| Va. Code § 18.2-216 (false advertising) | Posting an 804 number on Broad Highway's listing was an advertisement intended to induce customers to purchase Michigan services, causing loss. | Factual defenses available; damages may be hard to prove. | Court: Denied dismissal; plaintiff adequately pleaded advertisement, intent, deception, and loss. |
Key Cases Cited
- Walden v. Fiore, 571 U.S. 277 (2014) (personal-jurisdiction Due Process standard)
- Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945) (minimum contacts framework)
- ALS Scan, Inc. v. Digital Service Consultants, Inc., 293 F.3d 707 (4th Cir. 2002) (sliding-scale internet contacts test for specific jurisdiction)
- Verizon Online Servs., Inc. v. Ralsky, 203 F. Supp. 2d 601 (E.D. Va.) (jurisdiction based on internet activity causing harm in forum)
- Devil's Advocate, LLC v. Zurich Am. Ins. Co., [citation="666 F. App'x 256"] (4th Cir. 2016) (statutory person defined as natural person for § 8.01-40 interpretation)
- Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144 (4th Cir.) (Lanham Act likelihood-of-confusion factors)
- People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001) (Lanham Act use in commerce and internet-related claims)