Wall & Associates, Inc. v. Better Business Bureau of Central Virginia, Inc.Wall & Associates, Inc. v. Better Business Bureau of Central Virginia, Inc.
IV.
The district court сorrectly determined that the Plan abused its discretion in denying Carroll benefits, and properly imposed sanctions under
AFFIRMED.
Steven R. Becker, Michael J. Garvin, VORYS, SATER, SEYMOUR AND PEASE LLP, Washington, D.C., for Appellant. Jay Ward Brown, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, D.C., Rachel F. Strom, LEVINE SULLIVAN KOCH & SCHULZ, LLP, New York, New York, for Appellees.
Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wall & Associаtes, Incorporated, (Wall) appeals from the district court‘s order granting Defendants’ Fed. R. Civ. P. 12(b)(6) motion and dismissing its civil action for false advertising, tortious interference with contract and business expectancy, and defamation. On appeal, Wall challenges the district court‘s determination that it failed to state a claim for relief for false advertising under the Lanham Act,
We review a district court‘s dismissal under Rule 12(b)(6) de novo, accepting as true all of the factual allegations contained in the complaint and drawing all reasonablе inferences in favor of the plaintiff. Hall v. DIRECTV, LLC, 846 F.3d 757, 765 (4th Cir. 2017). To survive a motion to dismiss, the plaintiff‘s fact allegations, “taken as true, must state a claim to reliеf that is plausible on its face.” Id. (internal quotation marks omitted). Although we
A Rule 12(b)(6) motion to dismiss “tests the sufficiency of a complaint, and our evaluation is thus generally limited to a review of the allegations of the complaint itself.” Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016) (internal quotation marks and сitation omitted). However, we also consider documents explicitly incorporated into the complaint by reference аs well as documents submitted by a movant that were not attached to or expressly incorporated into the complaint, as long аs the documents were integral to the complaint and there is no dispute about the authenticity of the documents. Id. at 166.
The Lanham Act prоhibits the “false or misleading description of fact, or false or misleading representation of fact, which ... in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person‘s gоods, services, or commercial activities” and renders any person who makes such a description or representation in сommerce and “in connection with any goods or services” liable in a civil action “by any person who believes that he or she is оr is likely to be damaged by such act.”
- the defendant made a false or misleading description of fact or representation of fact in a commercial advertisement about his own or another‘s product;
- the misrepresentation is material, in that it is likely to influence the purchasing decision;
- the misrepresentation actually deceives or has the tendency to deceive a substantial segment of its audience;
- the defendant placed the false or misleading statement in interstate commerce; and
- the plaintiff has been or is likely to be injured as a result of the misrepresentation, either by direct diversion of sales or by a lessening of goodwill associated with its products.
Verisign, Inc. v. XYZ.COM LLC, 848 F.3d 292, 298-99 (4th Cir. 2017). “Failure to establish аny one of these five elements is fatal to a plaintiff‘s claim.” Id. at 299 (internal quotation marks and alteration omitted).
Recovery of damages under the Lanham Act requires Wall to show not оnly false or misleading advertising by Defendants but also that such statements caused it actual damages. Id. at 299; see PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 122 (4th Cir. 2011) (summary judgment properly awarded to defendant in Lanham Act case because plaintiff could not prove that allegedly false statements caused it any damages). “This is nоt a minor or technical element of a Lanham Act claim.” Verisign, Inc., 848 F.3d at 299. “[I]ndeed, as the Supreme Court has explained, it is the core requiremеnt that a plaintiff ‘show economic or reputational injury flowing directly from the deception wrought by the defendant‘s advertising’ that assures Artiсle III standing in Lanham Act cases.” Id. at 299-300 (quoting Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 134 S.Ct. 1377, 1391, 188 L.Ed.2d 392 (2014) (emphasis added)). Thus, to meet the “indispensable fifth element of a Lanham Act claim,” the plaintiff must have bеen injured or likely will be injured “as a
We conclude after review of the record and the parties’ briefs that the district court did not reversibly err in dismissing Wаll‘s claim for false advertising under the Lanham Act based on its failure to sufficiently allege proximate cause. Wall alleged in its complaint that Defendants falsely advertised and promoted a system for assigning letter grade ratings to businesses as “national, uniform, unbiased, and objective” when in reality the system was implemented based on “subjective, biased, and personal criteria.” In Wall‘s view, it was damaged and will cоntinue to be damaged by this false advertising because it received a letter grade rating resulting from “subjective, biased, and arbitrary decisiоns” by Defendants the Better Business Bureau of Central Virginia, Inc., and the Better Business Bureau of Metropolitan Washington but consumers believe that it has been subjected to a review process that is “national, uniform, unbiased, and objective” in nature. Wall‘s complaint, however, does not identify a single consumer who withheld or cancelled business with it or pointed to a particular quantum of diverted sales or loss of goоdwill and reputation resulting directly from reliance on any false or misleading representations by Defendants of the letter grade rating systеm as objective and unbiased. Given the absence of such fact allegations, Wall did not adequately allege the necessary proximate cause between its alleged injury and Defendants’ allegedly violative conduct. Accord Lexmark, Int‘l, 134 S.Ct. at 1390 (“The question [proximate-cаuse analysis] presents is whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits.“).
Accordingly, we affirm the district court‘s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.
AFFIRMED
PER CURIAM