Happy Saturday, and Happy Halloween!

This year, I’m dressing up as Waluigi. He’s always been my favorite Mario character, and I already look a lot like him in real life, so I’m excited to dress in overalls and WAA at people a lot.  

This installment is a bit shorter than normal. Not every week is full of interesting tidbits, but this way you can get back to your weekend sooner.Anyway, my goal with this newsletter is to share with you some of the things I read as I stay on top of current issues and trends for my clients. 
If you were forwarded this email from a friend, please click here to subscribe for free, and consider sharing it with someone who might like to see it.

Here’s what I’ve been paying attention to over the last seven days:

New Lawsuits

  • The maker of Jeeter weed pre-rolls is facing a class action brought by California consumers who claim the product doesn’t have as much THC as advertised.  
  • A talent management company is suing a beauty product brand and its CEO for over $100k in unpaid invoices related influencer marketing services.  
  • A model who lost a lawsuit against Twitter for copyright infringement has amended her complaint to add a defendant with one of the racier names I’ve seen on a pleading.

    I can only imagine appearing in court for that defendant. “Good morning, your honor, John Smith appearing for defendant….uh, the other defendant.”

Legal News

  • Smashburger ran ads saying its “Trible Double” hamburgers contained “double the beef,” but consumers in a class action said those burgers had the same amount of beef, just split across two patties, and they wouldn’t have bought the burgers if they knew the truth.

    Smashburger has agreed to pay $5.5M to settle the case
  • A seller of novelty drinking glasses with bullets embedded them must pay $3M to their competitor, who sued under the Lanham Act for false advertising because the losing competitor advertised the glasses as being “Made in the USA,” when in reality, the glasses themselves were made in China, but the bullets were glued to the glass in the U.S.
  • Section 230 shielded TikTok from liability for the popular but incredibly risky (and in some cases fatal) “Blackout Challenge.” The mother of a child who died participating in the challenge sought to hold TikTok liable under products liability and negligence theories.

    She argued that TikTok had a duty to prevent its algorithm from recommending potentially deadly content to kids, and TikTok’s algorithmic recommendations are effectively TikTok’s own publication of content. But the court ruled that the algorithm simply promotes the work of others, so Section 230 shields the platform from liability.
  • This is a good overview of some of the potential revisions to the FTC’s endorsement guides.
  • Here is a quick high-level rundown of some of the issues to keep in mind if you run giveaways as part of your web3/crypto projects. 

Off topic:

Every year, I buy the new Call of Duty release and expect it to be different in some real way, and every year, it’s pretty much the same thing. But I bought it again this year. If you did too, and you want to hop in a game some time, send me a message so we can connect.

Thanks for making it this far.  Have a great weekend!


This case is a great reminder for brands and influencers about usage rights and the importance of understanding creator agreements.

A model and creator is suing a beauty brand she partnered with in federal court for false endorsement and misappropriation of likeness.

Under the influencer agreement, the creator agreed to post 1 photo and 1 video to Instagram and granted the brand rights to that content only. Later, she discovered that the brand used another image (shown above) taken from her IG account and used that image to promote that brand in stores across the U.S.

Because she did not grant the brand usage rights to that image or her likeness more broadly, she sent a demand letter to the brand seeking $40,000 in additional compensation.

When the brand ignored the demand letter (never a good idea), she filed this lawsuit.

The brand has until August 22 to respond, and I’ll track this one as it progresses.

The issues presented here come up over and over again.

Brands often mistakenly assume that because they engaged a creator for one campaign, they can use that creator’s images and likeness however they want.

That’s not true, unless the agreement covers such usages.

Here are just a few of the issues that you want to consider as you (preferably through your legal team) draft your agreement:

-Who owns the rights to the content?

-Where can the content be used, and for how long?

-How is the influencer being paid, and when?

-What publicity rights are being transferred?

-Is there an exclusivity clause, and is everyone okay with its scope?

-Does the brand get to approve the content before it goes live?

-Where will you resolve disputes, and what law will apply?

-How do you terminate the agreement, and what happens when you do?

Thinking through all of these issues in advance will save you time and money down the road.

The Texas Attorney General is suing an influencer who sold online fitness and nutrition plans.

The lawsuit says she sold the plans “with the promise of personalized nutritional guidance and individualized fitness coaching.”

The price of the plans ranged from $92 for a one-week program, to $300 for a 3-month regimen.

But the AG says “the online nutrition and fitness plans delivered to consumers were not individualized.”

They also alleged she “failed to provide the promised coaching and check-ins, … largely ignored consumer complaints, or offered only partial refunds.”

Instead, customers complained that the check-ins and feedback they received were “generic and non-substantive, e.g., ‘You’re killing it!’”

The lawsuit also alleges that she charged customers a shipping fee, even though the plans were emailed.

The customers joined the influencer’s Facebook group, where they were able to compare plans and, according to the lawsuit, realize that they received the same “individualized” plans despite having different goals and starting metrics.

So why post about this?

It’s an important reminder to pay attention to the claims you make about the products and services you offer.

There’s nothing inherently unlawful about selling off-the-shelf template nutrition or workout plans.

And it may seem obvious that if you call something “personalized,” then you need to tailor it to each person.

But it’s also common for brands and influencers to include a word or two in their ad copy that conveys a certain meaning—intentional or not—that a significant portion of their audience will rely on when making a purchase.

Those one or two words, if they don’t accurately describe the product or service being sold, can make the difference between a successful business and a lawsuit from the government or a class action from customers.

So, it’s a good idea to review all of your ad copy, especially if you are selling a plan or a course, to make sure that you aren’t overpromising or phrasing things in a way that might carry a meaning you didn’t intend.