Beruflich Dokumente
Kultur Dokumente
Before
Torruella, Lynch, and Barron,
Circuit Judges.
May 9, 2016
TORRUELLA,
Circuit
Judge.
Defendant-Appellant
John
("the
Commission")
summary
decision
finding
him
materially
misrepresented
membership benefits.
the
source
of
its
content
and
the
finding
its
of
liability
and
the
remedial
We
order
Background1
"[l]ooking for the latest scoop on a world filled with jerks" and
stated
that
"millions"
of
people
"use[d]
Jerk
for
important
"[h]elp[ing]
others
avoid
the
wrong
people,"
and
Each
someone was a "Jerk" or "not a Jerk" and displayed the total number
of "Jerk" and "not a Jerk" votes received.
reviews posted and those reviews that were posted were largely
derogatory.
Jerk.com also had a "Remove Me!" page, which stated that
individuals could "manage [their] reputation and resolve disputes"
regarding
content
subscription.
on
their
profile
pages
through
paid
-3-
subscription page where users could enter their billing and credit
card information to purchase a $30 membership.
The subscription
April
2014,
the
Federal
Trade
Commission's
15 U.S.C. 45(a)(2).
-4-
The Commission granted the motion on both counts and found Fanning
personally liable4 for Jerk's misrepresentations.
The Commission
also issued an order enjoining Jerk and Fanning from making certain
misrepresentations
requirements.
and
imposing
monitoring
and
recordkeeping
The
FTC
Rules
of
Liability
Practice
and
Procedure
allow
the
600,
607
(1st
Cir.
1994).
Under
the
summary
judgment
standard, we "draw all reasonable inference in favor of the nonmoving party," but disregard "conclusory allegations, improbable
inferences,
and
unsupported
speculation."
Mndez-Aponte
v.
Bonilla, 645 F.3d 60, 64 (1st Cir. 2011) (quoting Del Toro Pacheco
v. Pereira, 633 F.3d 57, 62 (1st Cir. 2011)).
Nonetheless,
FTC v. Colgate-Palmolive
determining
whether
defendant
has
engaged
in
are
false,
misleading,
or
unsubstantiated;"
and
(3)
POM
Wonderful, LLC v. FTC, 777 F.3d 478, 490 (D.C. Cir. 2015); see
also Kraft, 970 F.2d at 314; Novartis Corp., 127 F.T.C. 580, 679
(1999).
membership
such
that
the
Commission's
-6-
grant
of
summary
A.
Count I
Under Count I, the FTC alleged that Jerk.com contained
The Misrepresentation
In determining
whether a claim has been made, the Commission looks at the "overall
net impression," POM Wonderful, 777 F.3d at 490 (quoting Kraft,
970 F.2d at 314), left with "consumers acting reasonably under the
circumstances," id. (quoting Thompson Med. Co., 104 F.T.C. 648,
788 (1984)).
"Claims can either be express or implied."
127 F.T.C. at 680.
Novartis,
319; see also Novartis, 127 F.T.C. at 680; Thompson Med. Co., 104
F.T.C. at 788-89.
Id. at 320.
-7-
The Commission
has previously stated that if "a[] [claim] conveys more than one
meaning, only one of which is misleading, a seller is liable for
the
misleading
interpretation
even
if
nonmisleading
Liability may
users
to
create
profile
pages
as
creating
"net
Based
on
its
logical
interpretation
of
Jerk.com's
Fanning also argues that the Commission violated his due process
rights by finding an implied misrepresentation when the FTC's
motion for summary decision focused primarily on an express
misrepresentation theory. As Fanning conceded at oral argument,
the FTC's complaint and motion for summary decision contained
references to both implied and express misrepresentations.
We
therefore find no merit in his claim that he lacked notice that
the Commission could impose liability based on an implied
misrepresentation theory.
-8-
main
argument
is
that
the
statements
on
Jerk.com's "About Us" page that the Commission relied upon were
"part of standard terms and conditions of use" such that "[n]o
reasonable consumer . . . could possibly have been misled to
believe that all content [on Jerk.com] was created by individual
'users.'"
4,
"Online
Content,"
stated
"[o]pinions,
advice,
"solely
responsible
for
the
content
of
[their]
postings
on
jerk.com."
Fanning is correct that the disclaimers on the "About
Us"
page
would
be
insufficient
to
support
an
implied
The
of
user
participation
and
social
interaction."
The
-10-
represented
that
profile
pages
were
created
pages was the "Post a Jerk" page allowing users to create profiles
for other people.7
could
conclude
other
Jerk.com
users
created
their
profile pages.
evidence. 8
Consumers
complained
to
the
FTC
about
The Commission
In
Materiality
The
express
claims;
(2)
intended
implied
claims;
(3)
claims
(noting
characteristic
that
of
the
"information
product
pertaining
or
service
to
will
the
central
be
presumed
material").
Fanning
argues
that
the
Commission
relied
upon
in
reliance
upon
purported
implied
representations
There is no requirement
Act
prohibits
"deceptive
acts
or
practices,"
15
The
U.S.C.
We see
on
websites
if
those
misrepresentations
-13-
altered
misrepresentation
their
that
behavior
its
content
based
was
on
user
Jerk.com's
generated.
The
Jerk.com
characteristics.
misrepresented
one
of
its
central
proper on Count I.
B.
Count II
We
also
agree
with
the
Commission
that
Jerk.com
paid
membership.
Jerk.com's
"Remove
Me"
and
"billing
-14-
of
this
claim.
Two
FTC
investigators
paid
the
$30
Fanning
He argues
only that there was a factual dispute about whether Jerk or Fanning
engaged in a "pattern [or] practice . . . to take money from
consumers
without
providing
benefits
as
promised."
Fanning,
benefits
were
an
aberration
or
mistake.
"[C]onclusory
321
F.3d
235,
240
We
also
conclude
(1st
Cir.
2003)
Margarian v.
(quotation
mark
omitted).
material.
Jerk.com's
misrepresentation
was
-15-
See Kraft,
Count II as well.
III.
In Part
In
15 U.S.C. 45(b).
-16-
Thus, the Commission may "frame its order broadly enough to prevent
respondents from engaging in similarly illegal practices" in the
future.
Id. at 395.
Commission's
find
no
order
merit
to
Fanning's
enjoining
him
objections
from
to
making
the
any
"the
benefits
of
joining
any
service."
Fanning's
only
The
N.Y., 447 U.S. 557, 563 (1980); see also Wine & Spirits Retailers,
Inc. v. Rhode Island, 481 F.3d 1, 8 (1st Cir. 2007) ("[A]dvertising
that
is
actually
misleading
'may
be
prohibited
entirely.'"
counters
that
the
Commission
erred
by
-17-
Even if Jerk.com
states
Fanning
may
not
engage
in
two
types
of
This language
the
alternative,
Fanning
argues
that
commercial
Although
not
protect
Fanning's
misleading
assertions,
misrepresentations.
the
We
commercial
Commission's
recognize
that
speech.
order
the
Contrary
reaches
First
to
only
Amendment
Monitoring Provisions
More problematic, however, are the order's monitoring
provisions.
-18-
'clear
and
precise
in
order
that
they
may
be
380
U.S.
at
392).
On
this
former
We evaluate these
We
Recordkeeping Provisions
Part
III
of
the
FTC
order
contains
two
monitoring
First, Fanning
advertisements
or
promotional
material.
Second,
Fanning
conclude
these
recordkeeping
provisions
are
They ensure
-20-
Under
the
Commission's
order,
Fanning
need
only
maintain
on
adaptability
or
transferability
of
the
unfair
As
we
reject
Fanning's
contention
that
the
Although
Finding
reasonable,
we
requirements.
the
turn
Commission's
our
attention
recordkeeping
to
the
broader
provisions
reporting
-21-
copy
of
[the
Commission's]
order
to
all
current
and
future
future
employees,
agents,
and
representative
having
Fanning
conclude
reasonably
the
related
compliance
to
monitoring
Fanning's
provisions
violation.
In
are
response
not
to
who
have
responsibilities
related
to
the
subject
-22-
Distribution of
notice
of
difficult
for
the
prohibited
Fanning
to
conduct
receive
and
thus
assistance
makes
in
it
more
replicating
of
regardless
of
all
business
whether
or
affiliations
not
the
and
affiliate
employment
or
employer
-has
changes
obligations
in
its
arising
structure
under
"that
this
may
affect
order."
Both
compliance
the
order
provisions
are
the
only
Fanning's compliance
parts
the
Commission
conceded
that
of
the
order
not
this
provision
would
-23-
restaurant.
The orders,
however, are not only less onerous 9 than the one imposed on
Fanning, but also almost entirely bereft of analysis that might
explain the rationale for such a requirement. 10
Without any
As a result, we
Conclusion