Four Women Health Services, LLC v. Abundant Hope Pregnancy Resource Center, Inc. et al

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
FOUR WOMEN HEALTH 	)
SERVICES, LLC, 	)
)
Plaintiff, 	)
)
v. 	)
)
ABUNDANT HOPE PREGNANCY 	)
RESOURCE CENTER, INC. d/b/a 	) 	No. 1:24-cv-12283-JEK
ATTLEBORO WOMEN’S HEALTH 	)
CENTER, CATHERINE ROMAN, 	)
NICOLE CARGES, DARLENE 	)
HOWARD, and CHOOSE LIFE 	)
MARKETING, LLC, 	)
)
Defendants. 	)
)
MEMORANDUM AND ORDER ON DEFENDANT CHOOSE LIFE
MARKETING, LLC’S MOTION TO DISMISS AND THE REMAINING
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
KOBICK, J.
Plaintiff Four Women Health Services, LLC is a licensed healthcare clinic that provides
reproductive healthcare, including abortion care, to its patients. Defendant Abundant Hope
Pregnancy Resource Center, Inc., doing business as Attleboro Women’s Health Center, is a
nonprofit crisis pregnancy center that opposes abortion. The organizations occupy neighboring
buildings in Attleboro, Massachusetts. Four Women alleges in this lawsuit that Abundant Hope,
three of its executive officers, and its marketing agency, defendant Choose Life Marketing, LLC
(“CLM”), use false advertising to deceive and divert Four Women’s patients who are seeking
reproductive healthcare services. The amended complaint asserts that the defendants’ false and
deceptive advertising violates the Lanham Act, 15 U.S.C. § 1125(a)(1)(B), and M.G.L. c. 93A,
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§ 11. Pending before the Court are CLM’s motion to dismiss and a motion for judgment on the
pleadings filed by Abundant Hope and its executive officers (together, the “Abundant Hope
defendants”).
For the reasons that follow, CLM’s motion will be denied and the Abundant Hope
defendants’ motion will be granted with respect to the Chapter 93A claim but denied as to the
Lanham Act claim. Four Women plausibly alleges a false advertising claim under the Lanham Act
against all defendants. It also states a plausible Chapter 93A claim against CLM, a for-profit entity
paid by Abundant Hope to make allegedly misleading advertisements about the services provided
at the Attleboro Women’s Health Center. The Chapter 93A claim cannot, however, be sustained
against the other defendants, because Abundant Hope is a nonprofit that did not charge for its
services, which advanced its pro-life mission, and its officers furthered that charitable mission.
BACKGROUND
I. 	Factual Background.
The following facts, which are assumed true, are drawn from the amended complaint,
documents fairly incorporated by reference in that pleading, and allegations admitted by the
Abundant Hope defendants in their answer to the amended complaint. See Bazinet v. Beth Israel
Lahey Health, Inc., 113 F.4th 9, 15 (1st Cir. 2024) (Fed. R. Civ. P. 12(b)(6)); Sevelitte v. Guardian
Life Ins. Co. of Am., 55 F.4th 71, 76 (1st Cir. 2022) (Fed. R. Civ. P. 12(c)).
Four 	Women 	is 	a 	licensed 	clinic 	and 	ambulatory 	surgical 	center 	in 	Attleboro,
Massachusetts that provides reproductive healthcare services, including birth control prescriptions,
ultrasounds, and abortion care. ECF 59, ¶¶ 3, 33-37. Abundant Hope is a nonprofit crisis pregnancy
center that seeks to dissuade women from obtaining abortions. Id. ¶¶ 4, 10, 23, 40. The three
executive officer defendants—Abundant Hope’s President Catherine Roman, Treasurer Nicole
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Carges, and Executive Director Darlene Howard—execute that mission and fundraise for
Abundant Hope. ECF 59, ¶¶ 24-27, 40; ECF 63, ¶¶ 24-26, 40. Abundant Hope’s fundraising
allegedly promotes its diversion of prospective patients from Four Women. ECF 59, ¶ 95.
In 2018, Abundant Hope relocated next door to Four Women and put the name “Attleboro
Women’s Health Center,” or “AWHC” for short, on its office. Id. ¶¶ 6, 42, 143-44; ECF 63, ¶¶ 42,
143. Described as Abundant Hope’s “medical arm,” AWHC purports to furnish patients with free
medical services, including ultrasounds and pregnancy consultation, testing, and diagnoses. ECF
59, ¶¶ 7, 40, 43, 52, 92; ECF 63, ¶¶ 7, 40, 43, 92. But, as the Abundant Hope defendants admit,
AWHC “is not a separate corporate entity from Abundant Hope, nor is it a licensed medical
provider.” ECF 59, ¶ 7; ECF 63, ¶ 7.
Abundant Hope maintains a separate website for AWHC at awhc.net. ECF 59, ¶¶ 8, 44-45;
ECF 63, ¶¶ 8, 44-45. It hired CLM, a for-profit marketing agency in Missouri, to manage that
website and place advertisements on Google promoting AWHC to women seeking abortion care.
ECF 59, ¶¶ 10, 28, 60-61, 76, 81. Like Abundant Hope, CLM aims to divert “abortion-minded
women” from obtaining abortion services. Id. ¶¶ 10, 61. CLM drafted the language appearing on
AWHC’s website and in its advertisements, including those on Google. Id. ¶¶ 73-74; ECF 63,
¶¶ 73-74. Abundant Hope then approved the language drafted by CLM. ECF 59, ¶ 75; ECF 63,
¶ 75. In addition, CLM offers its clients various digital marketing services, including (1) paid
searches that enable clients’ advertisements to appear in the first few results when women in the
relevant area are using a search engine to look for information on abortion or unplanned pregnancy;
(2) search engine optimization, which drives internet traffic to clients’ websites; (3) microtargeting
of young women, single mothers, and low-income families based on their online data; and
(4) geofencing, which allows clients to send targeted advertisements to women in a specific
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geographic location. ECF 59, ¶¶ 66-72. CLM also provides Abundant Hope with the contact
information of potential clients and describes the services that they are seeking based on forms
that those “leads” completed on AWHC’s website or elsewhere. Id. ¶¶ 77-80; ECF 63, ¶¶ 77-79.
Since 2022, Abundant Hope has paid CLM “substantial sums” for these services. ECF 59, ¶¶ 63-
65; ECF 63, ¶¶ 63-65.
Through AWHC’s website and advertisements, the defendants have allegedly engaged in
a false and deceptive advertising scheme designed to steer women who are seeking abortion care
in the area away from Four Women. ECF 59, ¶¶ 5, 9, 82-85, 123-25. Four Women alleges three
general categories of false and deceptive advertising. First, on its website and in Google
advertisements, AWHC is advertised as a “Women’s Health Center” that has performed hundreds
of “medical” tests and appointments and that can furnish “medical services,” including pregnancy
testing and ultrasounds. Id. ¶¶ 88-92; ECF 63, ¶¶ 89-92. But AWHC does not employ an on-site
licensed doctor or Advanced Practice Registered Nurse. ECF 59, ¶¶ 54-58; ECF 63, ¶¶ 54-55.
Under Massachusetts law, such licensed medical professionals are required to diagnose the
viability and location of a fetus. ECF 59, ¶¶ 54-58; ECF 63, ¶¶ 54-55; see M.G.L. c. 111, § 51;
105 Code Mass. Regs. 140.000. AWHC is not a licensed medical facility that can lawfully provide
such ultrasounds or gynecological services. ECF 59, ¶¶ 7, 93-94; ECF 63, ¶¶ 7, 94.
Second, AWHC encourages women to access its services by falsely representing on its
website that an ultrasound and a determination regarding viability are necessary to obtain an
abortion. ECF 59, ¶¶ 96-105.
Third, AWHC’s website misrepresents that AWHC provides abortion care by listing
“abortion” first in the “Options” page and, on the “Abortion” page, urging women who are
“thinking about abortion” to “MAKE AN APPOINTMENT.” Id. ¶¶ 113-15; ECF 63, ¶ 115. The
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website also includes a client testimonial describing AWHC as a “[g]reat place for women
considering abortion.” ECF 59, ¶ 116; ECF 63, ¶ 116. While other pages on AWHC’s website
include a small disclaimer at the bottom that AWHC does not perform abortions, these pages and
its other advertising contain no such disclosure. ECF 59, ¶¶ 118-19; ECF 63, ¶ 119. Google
advertising further implies that AWHC performs abortions because AWHC appears among the
first Google search results for “abortion near me attleboro ma,” with an advertisement for
scheduling an appointment and links to “Abortion Cost,” “Abortion Pill Info,” “Abortion Clinic
Info,” and “Abortion Info.” ECF 59, ¶¶ 121-22.
The defendants’ efforts have diverted patients seeking abortion care from Four Women.
Id. ¶¶ 86, 128, 178. Between January 2023 and August 2024, 591 patients called both AWHC and
Four Women. Id. ¶ 128. Many women, like Jane Does 5 and 8, have unknowingly provided their
contact information to Abundant Hope through AWHC’s website or CLM’s Google advertising.
Id. ¶¶ 15, 140. Jane Doe 5 sought an appointment at Four Women on October 30, 2023 and, within
minutes, received a call from AWHC to schedule a visit there instead. Id. ¶¶ 133-37; ECF 59-5,
¶¶ 2-18; ECF 63, ¶ 135. Jane Doe 8 similarly scheduled an appointment at Four Women for a
medication abortion on May 6, 2024, and AWHC called her that day to persuade her to
alternatively obtain its services. ECF 59, ¶¶ 138-39. AWHC also schedules appointments with
callers, such as Jane Doe 1, without informing them that it does not furnish abortion care and, once
on-site, offers them pamphlets falsely stating that abortion is “dangerous” in order to deter them
from going to Four Women. Id. ¶¶ 129-30. Jane Doe 1 sought a medication abortion in March
2024 and only learned that AWHC could not perform that abortion after she attended her
appointment there. Id. ¶¶ 152-55, 159, 162-63, 168. Jane Does 2, 3, 4, 9, and 10 had similar
experiences. Id. ¶¶ 172-74, 176-77.
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II. 	Procedural History.
In September 2024, Four Women brought this action against Abundant Hope, Roman,
Carges, and Howard and moved for limited expedited discovery and a preliminary injunction. ECF
1, 3, 5. The initial complaint asserted violations of the Computer Fraud and Abuse Act, 18 U.S.C.
§ 1030 (Count I); the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq. (Count
II); the Massachusetts Wiretap Act, M.G.L. c. 272, § 99 (Count III); and the Massachusetts
Consumer Protection Act, M.G.L. c. 93A, § 11 (Count IV). ECF 1, ¶¶ 124-65. In October 2024,
the Court permitted Four Women to conduct limited expedited discovery, including serving
specific interrogatories and requests for documents and taking certain depositions. ECF 40. In
December 2024, after the parties completed early discovery, the defendants moved for summary
judgment. ECF 50. On January 13, 2025, Four Women filed, with leave of Court, an amended
complaint. ECF 56, 59. That same day, the Court denied Four Women’s motion for a preliminary
injunction and the Abundant Hope defendants’ motion for summary judgment. ECF 60.
The amended complaint named CLM as a new defendant and removed Four Women’s
prior claims under the Consumer Fraud and Abuse Act, Electronic Communications Privacy Act,
and Massachusetts Wiretap Act. See ECF 56, 59. The operative complaint now claims that all
defendants have violated the Lanham Act, 15 U.S.C. § 1125(a)(1)(B) (Count I), and M.G.L.
c. 93A, § 11 (Count II). ECF 59, ¶¶ 181-201. The Abundant Hope defendants filed an answer to
the amended complaint. ECF 63. CLM moved to dismiss the amended complaint for failure to
state a claim. ECF 64. The Abundant Hope defendants thereafter filed a motion for judgment on
the pleadings that largely adopted CLM’s arguments. ECF 76. After Four Women opposed those
motions and the parties submitted further briefing, the Court held a hearing and took both motions
under advisement. ECF 81, 82, 86, 89, 91.
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STANDARD OF REVIEW
At the outset, the parties dispute whether the defendants’ motions should be reviewed under
the heightened pleading standard set forth in Federal Rule of Civil Procedure 9(b). Rule 9(b)
requires parties who allege “fraud or mistake” to “state with particularity the circumstances
constituting fraud or mistake.” The rule applies only “where the core allegations effectively charge
fraud.” Mulder v. Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 21-22 (1st Cir. 2017) (quotation marks
omitted). In general, “fraud requires that the defendant made a knowingly false statement
concerning a material matter that was intended to, and did in fact, induce the plaintiff’s reliance
and, through that reliance, created an injury.” Woods v. Wells Fargo Bank, N.A., 733 F.3d 349,
357 (1st Cir. 2013). But here, neither of Four Women’s claims “sounds in fraud.” Lee v. Conagra
Brands, Inc., 958 F.3d 70, 74 (1st Cir. 2020). The theory of this case is that women seeking
reproductive healthcare allegedly relied upon the defendants’ false and misleading advertisements
when they mistakenly sought treatment at AWHC instead of Four Women. Four Women does not
allege that it relied on the defendants’ allegedly false and misleading statements to its detriment.
Since the amended complaint’s core allegations do not sound in fraud, Rule 9(b) is inapplicable,
and the normal standard governing motions to dismiss under Rule 12(b)(6) and motions for
judgment on the pleadings under Rule 12(c) applies. See McGrath & Co., LLC v. PCM Consulting,
Inc., No. 11-cv-10930-DJC, 2012 WL 503629, at *7 n.1 (D. Mass. Feb. 15, 2012) (declining to
apply Rule 9(b) to false advertising Lanham Act claims).
In evaluating CLM’s motion to dismiss under Rule 12(b)(6), the Court must determine
“whether, construing the well-pleaded facts of the complaint in the light most favorable to the
plaintif[f], the complaint states a claim for which relief can be granted.” Cortés-Ramos v. Martin-
Morales, 956 F.3d 36, 41 (1st Cir. 2020) (quotation marks omitted). The complaint must allege “a
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plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations.” Id. at 679. The Court “may properly consider only facts
and documents that are part of or incorporated into the complaint.” Rivera v. Centro Médico de
Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quotation marks omitted).
Because the Abundant Hope defendants’ motion for judgment on the pleadings under Rule
12(c) is treated “much like a Rule 12(b)(6) motion to dismiss,” the Court similarly “accept[s] all
of the non-moving party’s well-pleaded facts as true and draw[s] all reasonable inferences in [its]
favor.” Cintron v. Bibeault, 148 F.4th 37, 46 (1st Cir. 2025) (quotation marks omitted). “[T]o
survive a 12(b)(6) motion (and, by extension, a Rule 12(c) motion) a complaint must contain
factual allegations that ‘raise a right to relief above the speculative level, on the assumption that
all the allegations in the complaint are true.’” Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29
(1st Cir. 2008) (quoting Twombly, 550 U.S. at 555-56).
DISCUSSION
The defendants seek dismissal of Four Women’s claims under Chapter 93A and the
Lanham Act. The Court addresses each claim in turn and then addresses the defendants’ argument
that the First Amendment shields them from liability on both claims.
I. 	Chapter 93A Claim.
Four Women asserts that the defendants willfully violated Chapter 93A by publishing false
and misleading advertisements about AWHC’s services. Section 11 of Chapter 93A prohibits “an
unfair or deceptive act or practice” between those “engage[d] in the conduct of any trade or
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commerce.” M.G.L. c. 93A, § 11. The purpose of Chapter 93A is to “‘encourage more equitable
behavior in the marketplace and impose liability on persons seeking to profit from unfair
practices.’” Arthur D. Little, Inc. v. Dooyang Corp., 147 F.3d 47, 55 (1st Cir. 1998) (quoting
Linkage Corp. v. Trs. of Bos. Univ., 425 Mass. 1, 25 (1997)). The Abundant Hope defendants argue
that they cannot be liable under Chapter 93A because they are not engaged in “trade or commerce.”
CLM makes the same argument and further contends that Four Women fails to state a valid Chapter
93A claim against it.
A. 	Abundant Hope and Its Officers.
The parties dispute whether Abundant Hope is engaged in “trade or commerce” under
Chapter 93A. The terms “trade” and “commerce” are defined, in relevant part, to “include the
advertising, the offering for sale, rent or lease, the sale, rent, lease or distribution of any services.”
M.G.L. c. 93A, §§ 1(b), 11. This language “indicates an intent that the services be distributed in
exchange for some consideration or that there must be other strong indications that the services
are distributed in a business context.” Planned Parenthood Fed’n of Am., Inc. v. Problem
Pregnancy of Worcester, Inc., 398 Mass. 480, 493 (1986). While nonprofit organizations acting in
pursuit of their charitable missions are not engaged in trade or commerce, a defendant’s status as
a nonprofit organization does not invariably remove it from the reach of Chapter 93A. See Kunelius
v. Town of Stow, 588 F.3d 1, 17-18 (1st Cir. 2009); Bos. Hous. Auth. v. Howard, 427 Mass. 537,
539 (1998). Rather, to determine whether the challenged conduct took place in a business context,
a court must consider “the nature of the transaction, the character of the parties involved, . . . the
activities engaged in by the parties,” and “whether the transaction [was] motivated by business or
personal reasons.” Linkage, 425 Mass. at 24 (quotation marks omitted).
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The Supreme Judicial Court’s (“SJC”) decision in Planned Parenthood is directly on point.
In that case, plaintiff Planned Parenthood of Massachusetts provided reproductive healthcare
services, including abortions, to women in Massachusetts. 398 Mass. at 481-82. Defendant
Problem Pregnancy of Worcester was a nonprofit that offered free alternatives to abortion, such as
pregnancy testing and counseling, in support of its pro-life mission. Id. at 482, 493. Problem
Pregnancy rented space on the same floor as Planned Parenthood so that people using the
building’s main entrance would have to pass by its office on their way to Planned Parenthood. Id.
at 482. Intending to confuse women in order to divert them to its office, Problem Pregnancy used
the initials “PP” on its front door. Id. at 481-83. Three women described mistakenly entering
Problem Pregnancy instead of Planned Parenthood. Id. at 482. To challenge Problem Pregnancy’s
use of the “PP” initials, Planned Parenthood brought suit alleging trademark infringement under
the Lanham Act, a violation of the Massachusetts antidilution statute, a common law service mark
violation, and unfair and deceptive acts under Chapter 93A. Id. at 483. The SJC held that Problem
Pregnancy’s use of the letters “PP” constituted common law service mark infringement but not a
Chapter 93A violation. Id. at 485, 493-94.1 Because Problem Pregnancy was a nonprofit
organization that did not charge for its services and its employees were pro-life advocates, the SJC
reasoned, Problem Pregnancy was not engaged in “trade or commerce” under Chapter 93A. Id. at
493-94.
Under this controlling precedent, Abundant Hope is not engaged in “trade or commerce”
and its conduct therefore falls beyond the scope of Chapter 93A. Like Problem Pregnancy,
Abundant Hope opened an office next door to a reproductive healthcare facility to furnish free
1 Having found common law infringement, the SJC did not reach Planned Parenthood’s
Lanham Act and antidilution claims. Planned Parenthood, 398 Mass. at 483-85 & n.6.
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services, including pregnancy tests, pregnancy counseling advice, and related services. A nonprofit
organization, Abundant Hope similarly has a pro-life mission and seeks “to prevent women from
obtaining . . . abortion care.” ECF 59, ¶ 4. According to the amended complaint, Abundant Hope
effectuates this mission in part by endeavoring to divert Four Women’s patients to its own office.
And as in Planned Parenthood, Four Women asserts that its neighbor’s efforts to confuse and
redirect women seeking abortion care violates the Lanham Act and Chapter 93A—in this case,
through alleged false advertising, in that case, through trademark infringement.
Four Women’s efforts to distinguish Planned Parenthood are unpersuasive. While Planned
Parenthood involved trademark infringement, not false advertising, both cases concern misleading
advertisements. Problem Pregnancy was enjoined from using the letters “PP” on its door and in
advertisements after the trial court found that its intent was “to confuse women” into entering its
office to provide them information about abortion alternatives “in order to effectuate its [pro-life]
purpose.” Planned Parenthood, 398 Mass. at 483, 488. Here, too, the Abundant Hope defendants
allegedly made false and misleading statements “designed to deceive and confuse women seeking
abortion services from Four Women” in order to fulfill Abundant Hope’s pro-life mission. ECF 59,
¶¶ 4, 84-85, 123. That Abundant Hope offers ultrasounds and pregnancy diagnoses, instead of
simply pregnancy testing and counseling, is not a meaningful distinction between the cases. The
SJC’s analysis did not focus on the nature of the services provided but on the fact that Problem
Pregnancy’s services were furnished at no cost by its employees in pursuit of their charitable
mission. See Planned Parenthood, 398 Mass. at 493-94; Linkage, 425 Mass. at 25 (citing Planned
Parenthood for the proposition that “where employees and incorporators of [a] charitable entity
were advocates for [a] pro-life position and [the] entity did not charge for its services, [the]
trademark infringement claim was beyond scope of c. 93A”).
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Abundant Hope’s use of a for-profit marketing agency does not change this calculus,
because Abundant Hope contracted with CLM to carry out the organizations’ shared mission. And
“[i]n most circumstances, a charitable institution will not be engaged in trade or commerce when
it undertakes activities in furtherance of its core mission.” Linkage, 425 Mass. at 26. This case is
no exception. Four Women relatedly points to Abundant Hope’s June 2022 letter threatening to
pursue a claim under Chapter 93A as evidence that Abundant Hope is engaged in trade or
commerce. ECF 59-6, at 2; ECF 59, ¶ 179. Nonprofit entities may, however, avail themselves of
Chapter 93A as plaintiffs in a lawsuit even though, as in this case, they may not be subject to suit
under the statute. See In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 192-94
(1st Cir. 2009). In any event, Abundant Hope’s invocation of Chapter 93A in a letter, standing
alone, is insufficient to place its activities within the reach of Chapter 93A, especially given the
SJC’s precedent in Planned Parenthood.
Four Women finally argues that because Abundant Hope “was motivated by a strong
desire” to “‘damage or destroy its competitor’” and then tout its successful diversion of patients
from Four Women to support its fundraising efforts, it was acting in a business context. Linkage,
425 Mass. at 25-26 (quoting Planned Parenthood, 398 Mass. at 499 (Abrams, J., concurring in
part and dissenting in part)). This contention relies on an argument made in Justice Abrams’ partial
dissent in Planned Parenthood. In her view, the SJC should have held that Problem Pregnancy was
engaged in trade or commerce because its “distribution of services was purposefully designed to
harm” Planned Parenthood’s business by diverting Planned Parenthood’s clients. 398 Mass. at 495-
501 (Abrams, J., concurring in part and dissenting in part). But the majority in Planned Parenthood
did not accept that view, and the SJC did not squarely adopt it in Linkage. Rather, Linkage endorsed
the principle that a nonprofit organization’s activities are generally beyond the scope of Chapter
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93A when, as here, it does not charge for its services and its employees are acting as advocates for
its core charitable mission. 425 Mass. at 25-26 (citing Planned Parenthood, 398 Mass. at 493-94);
see also Squeri v. Mount Ida College, 954 F.3d 56, 73 (1st Cir. 2020) (citing Planned Parenthood
as “determining that a charitable corporation, which had engaged in advertising of its services, was
not engaged in trade or commerce”).
Since Abundant Hope is not engaged in trade or commerce, the Chapter 93A claim against
it must be dismissed. That claim must also be dismissed as to Roman, Carges, and Howard because
they have allegedly controlled and directed Abundant Hope in furtherance of its charitable mission.
ECF 59, ¶¶ 27, 40; see Squeri, 954 F.3d at 74 (affirming dismissal of Chapter 93A claims against
a nonprofit and its officers where their activities furthered the nonprofit’s mission); Disabled Am.
Veterans, Cape Cod Chapter 96 ex rel. Kooyman v. Trott, No. 2011-cv-4677-BLS1, 2012 WL
3263925, at *5 (Mass. Super. May 30, 2012) (similar); Birbiglia v. St. Vincent Hosp., No.
CA911280, 1994 WL 878836, at *5 (Mass. Super. Dec. 29, 1994) (finding no Chapter 93A
violation post-trial where defendant doctors “were full-time employees of the Hospital acting in
furtherance of its primary charitable purpose”), aff’d sub nom. Birbiglia v. St. Vincent Hosp., Inc.,
427 Mass. 80 (1998). The Abundant Hope defendants’ motion for judgment on the pleadings is
accordingly granted as to Count II.
B. 	Choose Life Marketing.
CLM separately seeks dismissal of the Chapter 93A claim against it. To bring a claim under
Section 11, Four Women must allege that CLM is “engaged in trade or commerce” and that the
parties’ relationship involves an “interaction [that] is ‘commercial’ in nature.” Linkage, 425 Mass.
at 22-23. Four Women must also plausibly allege “(1) that [CLM] engaged in an unfair method of
competition or committed an unfair or deceptive act or practice . . . ; (2) a loss of money or property
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suffered as a result; and (3) a causal connection between the loss suffered and [CLM’s] unfair or
deceptive method, act, or practice.” Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 469 Mass.
813, 820 (2014). CLM disputes each of these elements.
1. 	Trade or Commerce.
Like Abundant Hope, CLM argues that it is not engaged in “trade or commerce” as required
by Chapter 93A. In its telling, in creating the advertisements and website content for AWHC that,
as alleged, are false and misleading, CLM is merely acting to further Abundant Hope’s charitable
mission. But there is an obvious and important distinction between Abundant Hope and CLM:
CLM is a for-profit entity that has been paid “substantial sums” by Abundant Hope to advertise
AWHC’s services, while Abundant Hope is a nonprofit entity that provides its services free of
charge. ECF 59, ¶¶ 10, 28, 40, 61, 65; ECF 63, ¶¶ 40, 65. Recall that, as explained in Planned
Parenthood, the definition of “trade or commerce” in Chapter 93A “indicates an intent that the
services be distributed in exchange for some consideration or that there must be other strong
indications that the services are distributed in a business context.” 398 Mass. at 493. And here,
there is no dispute that Abundant Hope paid CLM substantial consideration for its advertising and
related services; Abundant Hope admitted as much in its answer. ECF 63, ¶¶ 63-65. CLM is
therefore operating in a business context by receiving payment for its advertising services, and its
activities fall squarely within the definition of “trade or commerce” under Chapter 93A. See
Wheatley v. Massachusetts Insurers Insolvency Fund, 465 Mass. 297, 303 (2013) (business of
“traditional, for-profit” insurer “clearly” constituted “trade or commerce”).
CLM has two principal counterarguments. First, it contends that it cannot be subject to
Chapter 93A liability because its advertisements were in furtherance of Abundant Hope’s core
mission. But the SJC has never held that for-profit entities are immunized from liability under
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Chapter 93A whenever their profit-making activities can be said to further the core mission of a
nonprofit organization. Such a position would unduly limit the reach of Chapter 93A liability,
contravening the Legislature’s intent to promote more equitable behavior in the marketplace by
those acting in a business context. See Linkage, 425 Mass. at 25. Abundant Hope is not engaged
in trade or commerce because, like Problem Pregnancy in Planned Parenthood, it is not paid for
its services and its employees are acting pursuant to its charitable mission. CLM’s employees may
well share Abundant Hope’s pro-life values, but CLM is paid for its advertising services. And CLM
is named as a defendant because of its own allegedly deceptive conduct—namely, creating the
content of the Google advertisements for AWHC and drafting the language for AWHC’s website.
ECF 59, ¶¶ 73-74; ECF 63, ¶¶ 73-74. When a profitmaking business inserts its own false and
misleading advertisements into the marketplace in exchange for consideration, it is engaged in
trade or commerce, even if it shares a charitable vision with a nonprofit organization.
Second, and relatedly, CLM argues that if the Court determines that it is engaged in trade
or commerce when Abundant Hope is not, CLM would impermissibly be subject to something
akin to aiding and abetting liability under Chapter 93A. But under Massachusetts law, one entity’s
participation in another’s tortious conduct can lead to liability under Chapter 93A, even if the other
entity is not subject to Chapter 93A liability. In Hanover Insurance Company v. Sutton, for
example, the Appeals Court considered whether a business could be liable under Chapter 93A
when its employee breached his fiduciary duty to his former employer. 46 Mass. App. Ct. 153,
172-74 (1999). The Court affirmed the trial court’s conclusion that the business could be subject
to liability for aiding and abetting its employee’s fiduciary duty breach. Id. at 173. The fact that
the employee could not be liable to his former employer under Chapter 93A was of no moment,
because the business’s participation in its employee’s violation of his duty alone was sufficient to
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bring it within the ambit of Chapter 93A. Id. at 173-74; accord Augut, Inc. v. Aegis, Inc., 409 Mass.
165, 172 (1991); Beninati v. Borghi, 90 Mass. App. Ct. 556, 566-67 (2016); see also Nova
Assignments, Inc. v. Kunian, 77 Mass. App. Ct. 34, 44 n.7 (2010) (“[A]n individual acts in a
business context and is a proper defendant for c. 93A purposes if he works closely with and
knowingly aids and abets a party in undertaking unfair and deceptive business practices.”
(quotation marks omitted)). CLM is, accordingly, engaged in trade or commerce in connection
with its alleged conduct in this case.
2. 	Commercial Interaction.
CLM next contends that this case involves no interaction between it and Four Women that
is commercial in nature. The “commercial interaction” inquiry is typically satisfied unless the
underlying claims relate to “parties in a strictly private transaction, where the undertaking is not
‘in the ordinary course of a trade or business.’” Linkage, 425 Mass. at 23 n.33 (quoting Lantner v.
Carson, 374 Mass. 606, 608 (1978)); see Kunelius, 588 F.3d at 16 (“Chapter 93A does not ‘reach
strictly private transactions such as the isolated sale of a private home.” (quoting Begelfer v.
Najarian, 381 Mass. 177, 190 (1980))). Because claims alleging unfair trade practices apply to
competitive commercial relationships as well as direct business transactions, “[p]arties need not
be in privity for their actions to come within the reach of c. 93A.” Kattar v. Demoulas, 433 Mass.
1, 14-15 (2000); see In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d at 192-93
(privity between parties not required where “‘the parties are engaged in more than a minor or
insignificant business relationship’” (quoting Standard Reg. Co. v. Bolton-Emerson Inc., 38 Mass.
App. Ct. 545, 551 (1995))); Cash Energy, Inc. v. Weiner, 768 F. Supp. 892, 894 (D. Mass 1991)
(“[T]he statutory phrase ‘unfair method of competition’ suggests a competitive relationship[.]”
(quoting M.G.L. c. 93A, § 11)). Thus, “[t]he ‘commercial transaction’ threshold is passed” under
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Chapter 93A “if the parties to the dispute are not parties in the same venture.” Linkage, 425 Mass.
at 28 n.37.
Under this precedent, the alleged interactions between Four Women and CLM constitute a
commercial interaction. The entities’ competitive marketplace relationship is not part of the same
venture or “a strictly private transaction.” Id. at 23 n.33. And their market relationship is more than
that of minor or insignificant competitors. In re Pharm. Indus. Average Wholesale Price Litig., 582
F.3d at 192-94. CLM, a marketing agency, was paid to manage AWHC’s website and draft
advertising content that was later publicly disseminated. CLM would also provide “leads” to
Abundant Hope of patients seeking abortions who were later contacted to set up appointments.
This arrangement has lasted for several years and is central to Abundant Hope’s mission of
targeting women interested in abortion, counseling them on alternatives, and diverting them from
abortion care at Four Women. Over this period, at least 591 women seeking Four Women’s
reproductive health services have allegedly been contacted by Abundant Hope likely in part
because of CLM’s leads. Taken together, the longevity of CLM’s services for Abundant Hope, the
significant sums spent on the advertisements in Massachusetts, and CLM’s aim to divert women
from Four Women’s services plausibly suggest that CLM’s injection of advertisements into the
Massachusetts reproductive services market is commercial in nature under Chapter 93A.
3. 	Deceptive Acts or Practices.
CLM next contends that Four Women fails to allege any unfair or deceptive act. Conduct
is unfair under M.G.L. c. 93A, § 2 if it is “(1) within the penumbra of a common law, statutory, or
other established concept of unfairness; (2) immoral, unethical, oppressive, or unscrupulous; or
(3) cause[d] substantial injury to competitors or other business people.” Heller Fin. v. Ins. Co. of
N. Am., 410 Mass. 400, 408 (1991). Regarding conduct targeted toward potential customers, “[a]n
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act or practice is deceptive if it ‘has the capacity to mislead consumers, acting reasonably under
the circumstances, to act differently from the way they otherwise would have acted.’” Tomasella
v. Nestlé USA, Inc., 962 F.3d 60, 71 (1st Cir. 2020) (quoting Aspinall v. Philip Morris Cos., 442
Mass. 381, 396 (2004)). Thus, a party may violate Chapter 93A “through false or misleading
advertising.” Exxon Mobil Corp. v. Att’y Gen., 479 Mass. 312, 320 (2018). Further, a Chapter 93A
claim does not require proof that the defendant intended to deceive, Swanson v. Bankers Life Co.,
389 Mass. 345, 349 (1983), “or even knowledge on the part of the defendant that the representation
was false,” Aspinall, 442 Mass. at 394.
The amended complaint adequately alleges that CLM created false or misleading content
for AWHC’s website and Google advertisements published on Abundant Hope’s behalf. Designed
to steer women seeking abortions away from Four Women and into AWHC’s office, CLM’s
advertisements allegedly misrepresented AWHC’s ability to provide medical services like
pregnancy testing and ultrasounds, because AWHC is not licensed as a clinic to perform such
services and does not have staff on site able to perform those services. In drafting the content for
AWHC’s website and implementing its advertising campaign, CLM also allegedly represented,
falsely, that women need an ultrasound and a determination regarding viability before obtaining
an abortion. And by listing abortion as an “Option” on AWHC’s website, describing AWHC as a
“[g]reat place for women considering abortion,” ECF 59, ¶ 116; ECF 63, ¶ 116, and omitting the
disclaimer from certain webpages that AWHC does not perform abortions, CLM also allegedly
misrepresented AWHC’s ability to offer abortion care to patients seeking abortions. These
allegations suggest that CLM engaged in deceptive advertising by seeking “to mislead consumers,
acting reasonably under the circumstances.” Tomasella, 962 F.3d at 71 (quotation marks omitted).
At a minimum, CLM’s deliberate targeting of women seeking abortions with advertisements
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misrepresenting the services AWHC can provide plausibly “create[s] an over-all misleading
impression through failure to disclose material information.” Aspinall, 442 Mass. at 395.
CLM disputes Four Women’s characterization of its advertisements as misrepresentations,
claiming that all of the content it produced for Abundant Hope was literally true. Whether or not
that is so, the truthfulness of a representation is not dispositive of Chapter 93A liability.
Impermissibly deceptive “advertising may consist of a half truth, or even may be true as a literal
matter, but still create an over-all misleading impression through failure to disclose material
information.” Id.; see also Mack v. Cultural Care Inc., No. 19-cv-11530-ADB, 2020 WL 4673522,
at *8 (D. Mass. Aug. 12, 2020) (explaining that a business may violate Chapter 93A “through an
omission” and collecting cases). Four Women’s allegations of deceptive advertising easily clear
the bar for dismissal.
4. 	Harm and Causation.
CLM finally asserts that Four Women has not shown that it was harmed by CLM’s actions
or that CLM’s allegedly deceptive advertising was causally related to any harm. To state a viable
claim under Chapter 93A, the plaintiff must allege “a ‘separate, identifiable harm arising from the”
defendant’s conduct “that is distinct ‘from the claimed unfair or deceptive conduct itself.’”
Bellermann v. Fitchburg Gas & Elec. Light Co., 475 Mass. 67, 73 (2016) (quoting Tyler v. Michaels
Stores, Inc., 464 Mass. 492, 503 (2013)). The plaintiff must identify real damages, not mere
speculative harm. See Shaulis v. Nordstrom, Inc., 865 F.3d 1, 10 (1st Cir. 2017).
Viewed in the light most favorable to Four Women, the amended complaint adequately
alleges that Four Women was harmed by CLM’s deceptive conduct. That pleading asserts that the
defendants, including CLM, have “misled and diverted patients attempting to receive services at
Four Women,” “likely diverted countless other women seeking reproductive healthcare at Four
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Women,” and “harm[ed] Four Women through diverting its patients.” ECF 59, ¶¶ 14, 178-79. Four
Women alleges that 591 women who contacted it between January 2023 and August 2024 were
separately messaged by Abundant Hope, that CLM’s services include “lead” generation for
Abundant Hope, and that “[o]n a regular basis, women who have scheduled appointments with
Four Women do not show up for their appointments.” Id. ¶¶ 77, 128, 178. Four Women bolsters
its claim of patient diversion through deception with allegations about multiple women who sought
abortion care at Four Women but, as a result of confusion, ended up at AWHC. Id. ¶¶ 86, 133-40,
152-55. And Four Women further alleges that its reputation has been damaged by the defendants’
misrepresentations. Id. ¶¶ 90, 187. At the pleading stage, these allegations collectively give rise to
the plausible inference that Four Women has suffered identifiable harm from CLM’s deceptive
advertising on behalf of Abundant Hope. See Aspinall, 442 Mass. at 402 (finding viable Chapter
93A claim of deceptive advertising where defendant “falsely labeled or, at least, created the over-
all misleading impression that all smokers would receive ‘lowered tar and nicotine’”). The Court
will, accordingly, deny CLM’s motion to dismiss the Chapter 93A claim.
II. 	Lanham Act Claim.
Four Women also claims that the defendants violated the Lanham Act, 15 U.S.C.
§ 1125(a)(1)(B), by engaging in false advertising. The statute prohibits any person, “in commercial
advertising or promotion,” from making a “false or misleading description” or “representation of
fact” that “misrepresents the nature, characteristics, qualities, or geographic origin of his or her or
another person’s goods, services, or commercial activities.” 15 U.S.C. § 1125(a)(1)(B). To state a
false advertising claim under the Lanham Act, Four Women must allege that “(1) the defendant[s]
made a false or misleading description of fact or representation of fact in a commercial
advertisement about [their] own or another’s product; (2) the misrepresentation is material, in that
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it is likely to influence the purchasing decision; (3) the misrepresentation actually deceives or has
the tendency to deceive a substantial segment of its audience; (4) the defendant[s] placed the false
or misleading statement in interstate commerce; and (5) [Four Women] 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.” Cashmere & Camel Hair Mfrs. Inst. v. Saks Fifth Ave., 284
F.3d 302, 310-11 (1st Cir. 2002). The defendants contend that Four Women’s claim falters at the
first and second elements, but do not seek dismissal on the basis of the remaining three elements.
A. 	Commercial Advertising or Promotion.
To satisfy the first element of “commercial advertising or promotion,” the “representation
must (a) constitute commercial speech (b) made with the intent of influencing potential customers
to purchase the speaker’s goods or services (c) by a speaker who is a competitor of the plaintiff in
some line of trade or commerce and (d) disseminated to the consuming public in such a way as to
constitute ‘advertising’ or ‘promotion.’” Podiatrist Ass’n, Inc. v. La Cruz Azul De Puerto Rico,
Inc., 332 F.3d 6, 19 (1st Cir. 2003). In the defendants’ view, the first three factors are not met.
Commercial speech is “usually defined as speech that does no more than propose a
commercial transaction.” United States v. United Foods, Inc., 533 U.S. 405, 409 (2001). But
whether such speech qualifies as commercial speech involves “a multi-factor analysis.” Clemente
Props., Inc. v. Pierluisi-Urrutia, 165 F.4th 1, 30 (1st Cir. 2026) (citing Ariix, LLC v. NutriSearch
Corp., 985 F.3d 1107, 1115-18 (9th Cir. 2021)). That analysis considers whether: (1) the speech is
an advertisement, (2) the speech refers to a specific product or service, and (3) the speaker has an
economic motivation. Ariix, 985 F.3d at 1116. Each factor need not be present to find commercial
speech, but the combination of all three factors “provides strong support” for such a finding. Bolger
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v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 & n.14 (1983). The defendants dispute only the
“economic motivation” prong.
The amended complaint adequately alleges that the defendants had an economic motive
and thus engaged in commercial speech. As the defendants see it, their speech is not commercial
because Abundant Hope is a nonprofit organization that provides free services at AWHC. But, as
a for-profit business, CLM has a clear economic incentive and is paid to promote AWHC’s
services, including through Google advertisements. As for Abundant Hope, AWHC’s provision of
free services and its status as a nonprofit organization are not dispositive. The Ninth Circuit, for
example, has concluded that commercial speech is not limited to circumstances where clients pay
for services, because a nonprofit organization’s promotional advertising of services can directly
relate to its “ability to fundraise and, in turn, to buy more advertisements.” First Resort, Inc. v.
Herrera, 860 F.3d 1263, 1273 (9th Cir. 2017). Its analysis relied heavily on Fargo Women’s Health
Organization, Inc. v. Larson, a case in which the North Dakota Supreme Court concluded that a
nonprofit 	pregnancy 	center’s 	communications 	constituted 	commercial 	speech 	because 	its
advertisements were “placed in a commercial context and [we]re directed at the providing of
services rather than toward an exchange of ideas.” 381 N.W.2d 176, 181 (N.D. 1986). The center’s
“advertisements constitute[d] promotional advertising of services through which patronage” was
solicited, the Larson Court reasoned, “and in that respect constitute[d] classic examples of
commercial speech.” Id.
The Court finds the reasoning of these cases persuasive. Here, Abundant Hope has paid
CLM to advertise AWHC as a “Women’s Health Center” that can perform medical services,
including pregnancy testing and ultrasounds, even though it is not licensed as a medical facility
and allegedly lacks the requisite medical professionals to do so. Abundant Hope’s paid promotion
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of those services included $38,846, or nearly 17% of its total functional expenses, in 2022 alone.
ECF 59, ¶ 64; ECF 63, ¶ 64. To further divert patients from Four Women, Abundant Hope also
allegedly misrepresents that AWHC provides abortion care and that an ultrasound and a viability
determination are needed for an abortion. And Abundant Hope promotes its diversion of patients
from Four Women and AWHC’s provision of free services in its fundraising. As alleged, Abundant
Hope thus uses its advertising to drive fundraising, allowing for more advertising, more diversion
of Four Women’s patients, and new clients. Because Abundant Hope “has a direct economic stake
in the provision of its . . . service[s]” and advertises those services “in the hopes of realizing an
economic gain” through fundraising “rather than merely informing the public or pursuing its
ideological views, it may reasonably be viewed as economically motivated.” Handsome Brook
Farm, LLC v. Humane Farm Animal Care, Inc., 700 F. App’x 251, 259 (4th Cir. 2017). The Court
therefore concludes that CLM and Abundant Hope’s advertisements constitute commercial
speech. Compare First Resort, 860 F.3d at 1276 (advertisements for free medical services were
commercial speech because, to provide such “services for free, [plaintiff] engage[d] in fundraising
efforts which [were] furthered, at least in part, by [its] ability to attract new clients”), with Nat’l
Inst. of Fam. & Life Advocs. v. James, 160 F.4th 360, 377 (2d Cir. 2025) (finding noncommercial
speech where plaintiffs did not “gain other types of economic benefits by engaging in this speech,
such as . . . a capital increase through fundraising”).
Four Women also adequately alleges that the defendants’ representations were made with
the intent of influencing potential customers to purchase the services offered at AWHC. The
defendants contend that their speech was not intended to influence customers to purchase AWHC’s
services because those services were furnished for free. They do not, however, cite any case law
to support the proposition that “to purchase” requires a monetary exchange. Podiatrist, 332 F.3d
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at 19. Nor has the First Circuit distinguished between free and paid services. Other courts have, as
explained, found that the cost of services is not determinative. See First Resort, 860 F.3d at 1273;
Larson, 381 N.W.2d at 180-81.
Finally, the amended complaint plausibly alleges that Four Women and the defendants are
commercial competitors.2 Located next door to each other, Four Women and Abundant Hope both
allegedly provide ultrasounds and pregnancy testing and thus compete for the same patients
seeking reproductive healthcare. See McGrath & Co., 2012 WL 503629, at *5 (finding competitors
where parties “offer[ed] nearly identical project management services for companies engaged in
major construction projects”). The fact that Abundant Hope furnishes those services for free is not
dispositive. As discussed, Abundant Hope, through CLM, allegedly uses microtargeting and other
marketing techniques to promote patronage at AWHC, and its fundraising touts its successful
diversion of women seeking abortions. See First Resort, 860 F.3d at 1273. With respect to CLM,
the amended complaint alleges that CLM and Abundant Hope share a “central mission” of
“targeting women to prevent them from receiving abortion and abortion-related care.” ECF 59,
¶¶ 10, 84. And in exchange for payment from Abundant Hope, CLM executes that mission by
creating advertisements and website content that aims to divert women seeking abortion care in
Massachusetts away from Four Women. These allegations plausibly suggest that Four Women and
the defendants are competitors in the market for reproductive healthcare services. Four Women
has, accordingly, adequately alleged the first element of its Lanham Act claim.
2 The First Circuit recently noted that the Supreme Court “may have abrogated any requirement
that the defendant be a competitor of the plaintiffs.” Clemente Props., 165 F.4th at 30 n.28; see
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 123 n.1 (2014). Since Four
Women makes no such argument, the Court assumes, without deciding, that this factor is required.
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B. 	Materiality.
To satisfy the second element, materiality, a plaintiff must plausibly allege that a
defendant’s statement is either “literally false” or “true or ambiguous yet misleading.” Cashmere,
284 F.3d at 311. Whether the statement is literally false or misleading “is typically for the factfinder
to determine.” Azurity Pharms., Inc. v. Edge Pharma, LLC, 45 F.4th 479, 486-87 (1st Cir. 2022).
“[M]ateriality focuses on whether the false or misleading statement is likely to make a difference
to purchasers.” Cashmere, 284 F.3d at 312 n.10. A literally false statement does not “require proof
of confusion.” Clemente Props., 165 F.4th at 14. In contrast, for a misleading statement, the
plaintiff must also allege that the statement “is likely to mislead and confuse consumers into
believing a false . . . representation of fact” and “show how consumers have actually reacted to the
challenged advertisement, rather than merely demonstrating how they could have reacted.” Azurity
Pharms., 45 F.4th at 487 (quotation marks omitted).
As discussed in connection with the Chapter 93A claim, Four Women alleges three
categories of statements of the defendants that are, at a minimum, misleading. Abundant Hope and
the individual defendants admit that AWHC is not “a licensed medical provider” or “facility” and
“has never been licensed by the Massachusetts Department of Public Health to provide medical
care.” ECF 59, ¶¶ 7, 59, 94, 198; ECF 63, ¶¶ 7, 59, 94, 198. They further admit that they identify
AWHC as Abundant Hope’s “medical” arm that furnishes “medical” services; promote AWHC as
providing “medical appointments and medical tests” on its website; and advertise elsewhere,
including on Abundant Hope’s website, that AWHC provides “medical” services to women,
including pregnancy testing and ultrasounds. ECF 59, ¶¶ 7, 50, 89, 92; ECF 63, ¶¶ 7, 50, 89, 92.
These statements give the mistaken impression that AWHC is a medical provider that lawfully
performs the identified medical procedures. Likewise, as alleged, AWHC’s website misleadingly
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suggests that an ultrasound and a determination regarding viability are necessary preconditions to
obtaining an abortion, and misleadingly suggests that AWHC provides abortion care. For the same
reasons these alleged representations are plausibly deceptive under Chapter 93A, they are plausibly
misleading under the Lanham Act. See Azurity Pharms., 45 F.4th at 487 (“The elements of a
Chapter 93A claim overlap with those of a Lanham Act false advertising claim.” (quotation marks
omitted)).
The amended complaint also alleges how women have “actually reacted to the challenged
advertisement[s].” Clorox Co. Puerto Rico v. Proctor & Gamble Com. Co., 228 F.3d 24, 33 (1st
Cir. 2000). Jane Doe 9, for instance, went to AWHC for an abortion and only learned that it does
not provide abortion care while she was receiving an ultrasound there. ECF 59, ¶ 176. After
viewing AWHC’s online advertising, Jane Doe 1 also thought that AWHC was the Attleboro clinic
that provided abortions and therefore scheduled an appointment there. Id. ¶¶ 152-54. These
allegations, among others, give rise to the inference that the defendants’ misrepresentations were
material, as they likely influenced women to contact AWHC instead of Four Women. See
Cashmere, 284 F.3d at 313 (“[P]laintiffs are not required to present evidence that defendants’
misrepresentation actually influenced consumers’ purchasing decisions, but that it was likely to
influence them.”). In addition, Four Women alleges that the defendants’ advertisements are
“designed to deceive” women seeking abortion care and other reproductive healthcare services,
and that this “deception is calculated to deceive women seeking abortion care to delay them beyond
the recommended time for a medication abortion.” ECF 59, ¶¶ 11, 105, 123. For example, once at
AWHC, Jane Doe 1 allegedly received medically inaccurate information about abortions and was
told, incorrectly, that she was ineligible for a medication abortion. Id. ¶¶ 155-71. These allegations,
among others, suggest that “the defendant[s] acted with an intention to deceive.” Am. Bd. of
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Internal Med. v. Salas Rushford, 114 F.4th 42, 66 (1st Cir. 2024).3 Accordingly, Four Women
states a valid claim against Abundant Hope and CLM under the Lanham Act.
C. 	Individual Defendants’ Liability.
Roman, Carges, and Howard separately argue that Four Women fails to allege that they
specifically violated the Lanham Act. This argument is belied by the factual allegations in the
amended complaint and their own admissions. Together with Abundant Hope and CLM, the
individual defendants have allegedly developed a false and deceptive advertising scheme to divert
patients from Four Women. ECF 59, ¶ 5. These defendants have also admitted to advertising on
Google that AWHC provides “medical” services even though it is an unlicensed facility. Id. ¶¶ 41,
59, 91-92, 94, 198; ECF 63, ¶¶ 41, 59, 91-92, 94, 198. Given their role in the advertising scheme,
the individual defendants may be held personally liable under the Lanham Act. See Am. Bd. of
Internal Med., 114 F.4th at 65-66 (affirming dismissal of Lanham Act false advertising claim
against corporate officers where plaintiff did not allege a false or misleading statement).
Beyond these allegations and admissions, the individual defendants may also be held liable
as officers of Abundant Hope. The parties agree that “a corporate officer who directs, controls,
ratifies, participates in, or is the moving force behind the [illegal] activity is personally liable” for
violating the Lanham Act. Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153, 1161 (11th Cir.
3 The defendants argue that Four Women needed to allege that they knowingly or recklessly
made these false or misleading statements. But neither the Lanham Act nor the First Circuit
imposes that requirement. See Cashmere, 284 F.3d at 310-11; 15 U.S.C. § 1125(a)(1)(B). The
Second, Third, Eighth, and Eleventh Circuits have also recognized that “no proof of intent or
willfulness is required to establish a violation of [the] Lanham Act . . . for false advertising.” Vector
Prods., Inc. v. Hartford Fire Ins. Co., 397 F.3d 1316, 1319 (11th Cir. 2005) (collecting cases);
accord AMCO Ins. Co. v. Inspired Techs., Inc., 648 F.3d 875, 882 (8th Cir. 2011); see also Nestlé
Purina PetCare Co. v. Blue Buffalo Co., No. 14-cv-859-RWS, 2015 WL 1782661, at *5-6 (E.D.
Mo. Apr. 20, 2015) (explaining that the Lanham Act was amended to remove a “knowing”
element). In any event, Four Women alleges that the defendants made false and misleading
statements in a manner “calculated to deceive women seeking abortion care.” ECF 59, ¶ 105.
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2022) (quotation marks omitted); see ECF 76-1, at 5; ECF 82, at 15; cf. Marks v. Polaroid Corp.,
237 F.2d 428, 435 (1st Cir. 1956) (individual liable where he “was the moving, active conscious
force behind [the patent] infringement”). As alleged, “Roman, Carges, and Howard have controlled
and directed the actions of Abundant Hope,” and each of them “play[s] a leadership role in
developing and executing Abundant Hope’s mission.” ECF 59, ¶¶ 27, 40. These allegations are
sufficient to plausibly claim that Roman, Carges, and Howard “actively participated as a moving
force in the decision to engage in the [false advertising], or otherwise caused the [false advertising]
as a whole to occur.” Edmondson, 43 F.4th at 1164 (quotation marks omitted). The Lanham Act
claim will not be dismissed as to Roman, Carges, and Howard.
III. 	First Amendment Protection.
Finally, the defendants argue that Four Women’s claims are barred by the First
Amendment. Though the First Amendment provides broad protection to speech, “‘commercial
speech’ is entitled to . . . protection somewhat less extensive than that afforded to ‘noncommercial
speech.’” Zauderer v. Off. of Disciplinary Couns. of Supreme Ct. of Ohio, 471 U.S. 626, 637
(1985). And it is well settled that the First Amendment does not protect misleading commercial
speech or deceptive commercial advertising. See, e.g., Bates v. State Bar of Arizona, 433 U.S. 350,
383 (1977) (“Advertising that is false, deceptive, or misleading of course is subject to restraint.”);
Fanning v. Fed. Trade Comm’n, 821 F.3d 164, 174 (1st Cir. 2016) (same); In re Willis Furniture
Co., 980 F.2d 721, at *1 (1st Cir. 1992) (per curiam) (same). In Central Hudson Gas & Electric
Corporation v. Public Service Commission of New York, for example, the Supreme Court explained
that because of the informational function of advertising in commercial speech, “[t]he government
may ban forms of communication more likely to deceive the public than to inform it.” 447 U.S.
557, 563 (1980); see also Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
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Inc., 425 U.S. 748, 771 (1976) (“Untruthful speech, commercial or otherwise, has never been
protected for its own sake.”).
The defendants contend that the First Amendment shields them from liability on Four
Women’s Chapter 93A and Lanham Act claims because, as they see it, those claims improperly
seek to suppress their pro-life viewpoint. This is a mischaracterization of the amended complaint.
Four Women’s claims do not target any speech the defendants wish to make, or have made, about
their pro-life viewpoint or any of their views about the propriety of abortion. Rather, the claims
are narrowly addressed to AWHC’s advertisements and website content that, as alleged, contain
false or misleading information and divert women seeking abortion care from Four Women.
Where, as here, a plaintiff plausibly alleges that the defendant engaged in commercial speech
through false or misleading advertisements, the First Amendment does not provide refuge from
claims under the Lanham Act or Chapter 93A. See First Resort, 860 F.3d at 1272-74 (city
ordinance regulating false or misleading advertising by crisis pregnancy centers was facially valid
because such advertising is “afforded no constitutional protection”); Commonwealth v. Source One
Assocs., Inc., 436 Mass. 118, 127 n.11 (2002) (“[E]ven if the sale of private financial information
was protected by commercial free speech, the defendants would not be entitled to protection under
the First Amendment to the United States Constitution, because they used deceptive and unlawful
conduct to obtain this information.”); Planned Parenthood, 398 Mass. at 494-95 (citing via cf.
Larson, 381 N.W.2d at 181).4
4 The defendants’ reliance on cases involving government-compelled speech is misplaced,
because Four Women is not a government entity and it challenges only false or misleading
advertising. See, e.g., Nat’l Inst. of Fam. & Life Advocs. v. Becerra, 585 U.S. 755, 761, 766, 778
(2018) (California statute requiring pro-life pregnancy centers to communicate information about
abortion accessibility likely abridged their First Amendment rights because it constituted a
content-based command that they “speak a particular message” to which they were opposed).
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CONCLUSIONS AND ORDERS
For the foregoing reasons, CLM’s motion to dismiss, ECF 64, is DENIED. The Abundant
Hope defendants’ motion for judgment on the pleadings, ECF 76, is GRANTED with respect to
Count II but DENIED as to Count I.
SO ORDERED.
/s/ Julia E. Kobick
JULIA E. KOBICK
Dated: March 26, 2026 	UNITED STATES DISTRICT JUDGE
Case 1:24-cv-12283-JEK Document 94 Filed 03/26/26 Page 30 of 30