345 F. Supp. 3d 534
S.D. Ill.2018Background
- Avvo operates an online attorney directory with profiles that include numerical "Avvo ratings," client/peer reviews, and a "Pro" badge for paying subscribers; some attorneys pay for advertising and services, others do not.
- Kevin Davis, a nonpaying New York attorney, sued Avvo on behalf of a class alleging false advertising under Lanham Act § 43(a) and NY GBL § 349, claiming paid attorneys receive higher ratings, "Pro" badges, highlighted positive reviews, and promotional descriptions that mislead consumers and harm nonpaying attorneys.
- Avvo moved to dismiss under Rule 12(b)(6), arguing its ratings and statements are constitutionally protected opinions or nonactionable puffery and that Davis failed to plead causation or injury.
- The complaint alleged generalized diversion of business, reputational harm, and speculative monetary losses but offered no specific facts linking Avvo’s features to actual lost clients or quantifiable injury to Davis.
- The court treated Avvo ratings as subjective, constitutionally protected opinions; held "Pro" badges and advertising phrases are nonactionable puffery; found review-spotlighting disclaimers and editorial choices not to be false advertising; and concluded Davis failed to plead causal injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Avvo ratings actionable false advertising or protected opinion? | Ratings presented as objective but inflated for paying attorneys, misleading consumers. | Ratings are subjective evaluations—opinions protected by First Amendment and NY Constitution. | Ratings are opinion and constitutionally protected; not actionable. |
| Is the "Pro" badge false or misleading? | "Pro" implies higher quality; placement obscures actual meaning, misleading consumers. | "Pro" denotes verified profile information; if taken as quality claim, it is puffery. | "Pro" at most indicates professional/verified status; quality sense is nonactionable puffery. |
| Are highlighted positive reviews and removal of negatives false advertising? | Avvo spotlights positives and blocks negatives for paying attorneys, creating misleading profiles. | Site disclaims review moderation and dispute process; reviews are subjective opinions. | Review moderation and spotlighting are not false advertising given disclaimers and opinion nature of reviews. |
| Did plaintiff plead injury and causation sufficient for Lanham Act or NY GBL § 349? | General allegations of lost fees, reputational harm, and large estimated losses. | Plaintiff offers only speculative, subjective belief without specific facts linking conduct to harm. | Plaintiff failed to plead concrete injury or causal facts; claims dismissed for lack of injury. |
Key Cases Cited
- McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007) (standard for pleadings on motion to dismiss)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Ashcroft v. Iqbal, 556 U.S. 662 (courts need not accept legal conclusions as true)
- Merck Eprova AG v. Gnosis S.p.A., 760 F.3d 247 (elements of Lanham Act § 43(a) false advertising claim)
- ONY, Inc. v. Cornerstone Therapeutics, Inc., 720 F.3d 490 (opinions not actionable under NY GBL § 349 if not actionable under Lanham Act)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (distinction between fact and opinion for First Amendment protection)
- Bolger v. Youngs Drug Prod. Corp., 463 U.S. 60 (definition and scope of commercial speech)
- Compuware Corp. v. Moody's Inv'rs Servs., Inc., 499 F.3d 520 (ratings as predictive opinions)
- Lipton v. Nature Co., 71 F.3d 464 (definition and nonactionability of puffery)
- Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186 (plaintiff must plead more than subjective belief of injury in Lanham Act claims)