261 F. Supp. 3d 1220
M.D. Fla.2017Background
- Plaintiff Incarcerated Entertainment, LLC owns the rights to the life story of Efraim Diveroli and alleges Warner Bros. promoted the film War Dogs as the “true story” of Diveroli, diverting consumers from Diveroli’s memoir and causing economic injury.
- Diveroli’s real-life company AEY won large U.S. defense contracts, was later suspended, and Diveroli pleaded guilty to criminal charges; Rolling Stone published an article and Guy Lawson later optioned/produced material related to the story.
- Plaintiff alleges specific promotional statements (trailers, interviews, social posts) by Warner and associated individuals (producer Guy Lawson, consultant David Packouz, director Todd Phillips, actors Jonah Hill and Miles Teller) that portrayed War Dogs as true.
- Claims: Lanham Act false advertising (15 U.S.C. § 1125(a)(1)(B)) and state-law unfair competition/FDUTPA; Warner moved to dismiss arguing First Amendment protection for the speech and pleading deficiencies.
- The court evaluated whether the challenged promotions constitute commercial speech (Bolger factors) and whether plaintiff plausibly alleged falsity, consumer deception, materiality, standing/proximate causation, and declined to apply heightened pleading under Rule 9(b).
- Court denied the motion to dismiss in large part, finding plaintiff pleaded plausible Lanham Act and state-law claims at the pleading stage, but dismissed or declined to consider discrete allegations (e.g., certain website/facebook statements, Rolling Stone photo, a poster) that plaintiff conceded or that were not tied to Warner.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether promotions are "commercial speech" under Lanham Act | Promotions (trailers, interviews, posts) are advertising for War Dogs with economic motive and reference to a product | Promotions are entwined with artistic/political expression and thus noncommercial; speech about a film is protected | Court: Bolger factors plausibly met; promotions plausibly commercial speech at pleading stage; Rogers balancing may apply later but Dismissal denied |
| Whether statements are false or misleading | Specific promotional statements and agent statements (producer/consultant/actor) conveyed that the film was "true," and some imply factual basis | Statements are opinion/puffery, "based on a true story" admits fiction, or are non-actionable promotional context | Court: Many challenged statements survive pleading-stage review; some discrete items (certain social posts, Rolling Stone photo, poster) are not actionable and dismissed from claim |
| Whether plaintiff pleaded consumer deception, materiality, and injury (standing) | Alleged consumers prefer "true story" films; test screenings showed truthfulness mattered; plaintiff lost book sales and goodwill | Plaintiff needed specific consumer deception evidence or more detailed damages/causation at pleading | Court: At pleading stage, allegations suffice to plead capacity to deceive, materiality, and proximate economic injury (diversion of trade); Lexmark framework met plausibly |
| Whether Florida anti‑SLAPP applies and merits fee-shifting now | Plaintiff did not address anti-SLAPP as dispositive | Warner invoked anti-SLAPP and threatened fees if dismissal granted | Court: Declined to resolve anti-SLAPP now because Warner did not properly move under that statute at this stage |
Key Cases Cited
- Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935 (11th Cir. 2017) (applies Bolger factors to determine commercial speech in Lanham Act context)
- Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (balancing test for Lanham Act claims involving expressive works and titles)
- Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377 (Sup. Ct. 2014) (economic injury and proximate causation standards for Lanham Act standing)
- Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242 (11th Cir. 2002) (false advertising analysis and context rule)
- Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256 (11th Cir. 2004) (elements of a Lanham Act false advertising claim)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (S. Ct. 1983) (three-factor test for commercial speech when not core commercial)
- Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) (limits Rogers to expressive works and treats promotional documentaries as commercial speech)