Strauss v. Angie's List, 951 F.3d 1263

Plaintiff Steve Strauss owned Classic Tree Care and paid Angie’s List for advertising and referral services from 2005–2016; he alleges Angie’s List ranks businesses based on advertising spend rather than unedited consumer reviews.
Strauss paid roughly $200,000 to Angie’s List and claims, beginning in 2013, his business was excluded or buried in search results despite good reviews.
In 2017 Strauss sued Angie’s List for Lanham Act false advertising and Kansas Consumer Protection Act claims; the district court dismissed most claims as time‑barred, leaving only claims based on three 2016 website statements.
The 2016 Website Statements alleged: Classic had no consumer ratings/reviews, had not met Angie’s List’s criteria for inclusion, and had no local offers.
The district court dismissed the remaining Lanham Act claims for failure to plausibly plead the statements were made in connection with “commercial advertising or promotion” under the Tenth Circuit’s Proctor & Gamble test; Strauss appealed, arguing Lexmark altered that test.
The Tenth Circuit affirmed, holding Proctor & Gamble remains controlling and Strauss did not meaningfully challenge the district court’s application of that test to the 2016 statements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the 2016 Website Statements qualify as "commercial advertising or promotion" under the Lanham Act	Strauss contends the statements induced consumers to buy Angie’s List services and/or its ranking scheme is false/misleading	Angie’s List argued the statements were not commercial advertising/promotional statements under Proctor & Gamble and the district court properly dismissed them	Affirmed dismissal: Strauss failed to plausibly plead the required connection to commercial advertising under controlling precedent; he did not challenge the district court’s application to the 2016 statements
Whether Lexmark abrogated the Proctor & Gamble four‑part test (esp. competition and purpose prongs)	Strauss (and cited authorities) argue Lexmark eliminated the competition requirement and the need to show the statement was intended to influence consumers to buy defendant’s goods/services	Angie’s List and the panel argue Lexmark did not address what constitutes commercial advertising or promotion and thus did not supplant Proctor & Gamble	Court held Lexmark did not abrogate Proctor & Gamble; Tenth Circuit remains bound to apply Proctor & Gamble to this issue

Proctor & Gamble Co. v. Haugen, 222 F.3d 1262 (10th Cir. 2000) (adopted four‑part test for “commercial advertising or promotion” under § 1125(a)(1)(B))
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) (addressed statutory standing under the Lanham Act; declined to decide whether communications constituted commercial advertising)
Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964 (10th Cir. 2002) (elements of a Lanham Act false advertising claim summarized)
Twombly v. Bell Atlantic Corp., 550 U.S. 544 (2007) (pleading standard: plausibility requirement)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of plausibility standard to complaints)
In re Smith, 10 F.3d 723 (10th Cir. 1993) (panel precedent binds later panels absent en banc or Supreme Court decision)