Can Movie Trailers Be False Advertisements? One Court Says, Maybe

• Published date: 07 February 2023
• Subject Matter: Consumer Protection, Media, Telecoms, IT, Entertainment, Consumer Law, Advertising, Marketing & Branding
• Law Firm: Crowell & Moring
• Author: Meshach Rhoades, Jason Stiehl, Helen Ogunyanwo and Roy Abernathy

Is there a legal, cognizable claim for a consumer who was misled by a movie trailer? Perhaps. In June 2022, two Plaintiffs filed a lawsuit against Universal concerning a movie they streamed titled Yesterday which is owned by Universal. Woulfe et al v. Universal City Studios LLC et al., 22-cv-00459, ECF No. 83 (C.D. Cal. Dec. 20, 2022). Prior to streaming, the Plaintiffs watched the movie trailer, which featured actress Ana De Armas. In the complaint, Plaintiffs alleged they were persuaded by the trailer, and De Armas' role in particular to stream the movie. However, De Armas' character was cut from the final version of Yesterday, so she was not featured in the film whatsoever. The Plaintiffs alleged they would not have rented the movie had they known De Armas would not appear in the movie. The Plaintiffs then sued Universal under a host of consumer protection violations, including a violation of the California Unfair Competition Law, California Consumer Legal Remedies Act, and California False Advertising Law.

In response, Universal moved to dismiss and filed an anti-SLAPP strike motion. Universal argued that the trailer made no actionable misrepresentation as there was no express statement of De Armas' inclusion in the movie and, at best, a movie trailer provides only a vague representation of the movie. However, advertisements can contain both express and implied claims, and those implied claims can mislead consumers. And the Court articulated that while movie trailers may not provide express claims, the movie trailer may be viewed as a measurable claim implying a factual representation that actors would appear in a movie. Additionally, Universal argued that Plaintiffs failed to plausibly allege a significant portion of consumers were misled by the movie trailer. The Court was unpersuaded by Universal and found "it is plausible that a consumer could interpret De Armas' appearance as more than de minimis." Woulfe at *13. Further, Universal argued that Plaintiffs suffered no damages because the price to stream Yesterday would have been $3.99 regardless of De Armas' participation. Plaintiffs' alleged they would not have purchased the product but for De Armas' participation rendering the product valueless or at least less value than advertised. At the pleading stage, the court found these assertions suffice because plaintiffs need only allege the purchase was made based on false price information. Hinojos v. Kohl's Corp., 718 F.3d 1098, 1106-07 (9^th Cir...