Latest 2 Cases: Strauss v. Angie's List (Antitrust & Trade Regulation), Doe v. University of Denver (Civil Rights)

Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Strauss v. Angie's List

Docket: 19-3025

Opinion Date: March 9, 2020

Judge: Michael R. Murphy

Areas of Law: Antitrust & Trade Regulation, Business Law, Civil Procedure

Plaintiff, Steve Strauss, brought claims against Defendant, Angie’s List, Inc., alleging violations of the Lanham Act. Strauss owned a tree trimming/removal business called Classic Tree Care (“Classic”). Defendant Angie’s List was an internet-based consumer ratings forum on which fee-paying members could view and share reviews of local businesses. According to Strauss, the membership agreement between Angie’s List and its members lead members to believe that businesses were ranked by Angie’s List according to unedited consumer commentaries and endorsements when, in reality, the order in which businesses were ranked was actually based on the amount of advertising the business bought from Angie’s List. He alleged businesses were told they will be ranked more favorably on the website if they paid advertising and referral fees to Angie’s List. According to Strauss, from 2005 to 2016 he paid $200,000 in advertising services fees and coupon retention percentages to Angie’s List “in an effort to appear higher” in search results. The business relationship between Strauss and Angie’s List, however, began to sour in 2013. Strauss alleged he failed to appear in search results for a three-month period and then was “buried” in search-result listings even though he had numerous favorable reviews and a high rating from consumers. In September 2017, Strauss filed a putative class action lawsuit against Angie’s List, raising allegations that Angie’s List engaged in false advertising in violation of section 45(a) of the Lanham Act, as well as the Kansas Consumer Protection Act (KCPA). Strauss appealed when the district court dismissed his complaint on the basis that it failed to identify any statements made by Angie’s List that qualified as commercial advertising or promotion within the meaning of the Lanham Act’s false advertising provision. Strauss contended the district court erred by analyzing his claims under the test adopted by the Tenth Circuit in Proctor & Gamble Co. v. Haugen, 222 F.3d 1262 (10th Cir. 2000) (adopting a four-part test for determining what constitutes commercial advertising or promotion). Finding no reversible error, however, the Tenth Circuit affirmed dismissal of Strauss’ case.

Doe v. University of Denver

Docket: 18-1162

Opinion Date: March 9, 2020

Judge: Monroe G. McKay

Areas of Law: Civil Rights, Constitutional Law, Education Law

Plaintiff John Doe asserted that the disciplinary proceeding brought against him by Defendants, the University of Denver (“DU”) along with several University employees, violated his rights under the Fourteenth Amendment’s Due Process Clause and under Title IX. The court granted summary judgment to Defendants on the Fourteenth Amendment claim because Plaintiff had failed to show that DU, a private school, was a state actor. The court also granted Defendants summary judgment on the Title IX claim, concluding that Plaintiff had adduced insufficient evidence of gender bias. Plaintiff enrolled as a freshman at DU in 2014. In October 2014, Plaintiff had a sexual encounter with Jane Doe, a female freshman, in his dorm room. Six months later, Jane’s boyfriend reported the encounter as an alleged sexual assault to a DU resident director. The resident director then spoke with Jane, who repeated the allegations and later filed with DU’s Office of Equal Opportunity a complaint of non-consensual sexual contact. Under DU’s policies, a student’s non-consensual sexual contact with another was a policy violation. Prohibited sexual contact includes contact by “coercion,” which the policy defined as “unreasonable and persistent pressure to compel another individual to initiate or continue sexual activity against an individual’s will,” such as “continued pressure” after “someone makes clear that they do not want to engage in sexual contact.” Two of the named defendants investigated the claims; the outcome of the investigation ultimately led to Plaintiff’s expulsion. The district court concluded that Plaintiff had failed to adduce sufficient evidence to raise a genuine dispute that gender was a motivating factor in DU’s decision to expel him. Finding no reversible error in the district court’s judgment, the Tenth Circuit Court of Appeals affirmed.