Airquip, Inc. v. HomeAdvisor, Inc et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Case No. 16-cv-01849-PAB-KAS
(Consolidated with Civil Action No. 18-cv-01802-PAB-KAS)
In re HOMEADVISOR, INC. LITIGATION
____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on HomeAdvisor, Inc.’s Motion for Summary
Judgment [Docket No. 650] and The Misappropriation Classes’ Motion for Summary
Judgment [Docket No. 649]. Plaintiffs Airquip, Inc., Kelly DaSilva, Nicole Gray, Charles
Costello, Bruce Filipiak, Josh Seldner, Anthony Baumann, Kourtney Ervine, Hans
Hass,1 Iva Haukenes, Brad and Linda McHenry, and Lisa LaPlaca (collectively, the
“plaintiffs”) brought this class action suit on behalf of themselves and proposed classes
of similarly situated home service providers against defendants HomeAdvisor, Inc.
(“HomeAdvisor” or “HA”), IAC/InterActiveCorp (“IAC”), ANGI Homeservices, Inc.
(“ANGI”), and CraftJack, Inc. (“CraftJack”) (collectively the “defendants”). Docket No.
449 at 13. The Court has jurisdiction pursuant to 28 U.S.C. § 1332(d)(2).
I. 	BACKGROUND
A. Procedural History
On January 10, 2024, the Court granted in part and denied in part plaintiffs’
motion for class certification. Docket No. 635. The Court denied plaintiffs’ request to
certify a nationwide and nine state Deceptive Practices Classes. Id. at 58. However,
1 In a recent filing, plaintiffs state that Mr. Hass passed away in 2023. Docket
No. 617 at 1 n.1.
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the Court certified a Nationwide Misappropriation Class,2 a Colorado Misappropriation
Class,3 a Florida Misappropriation Class,4 and an Idaho Misappropriation Class.5 Id. at
56-57.
2 The certified Nationwide Misappropriation Class is defined as
All persons and entities who are/were Traditional SPs since July 13, 2015, (a)
who were charged for a HomeAdvisor membership (including for HomeAdvisor’s
Pro ConnectTM, Total ConnectTM, and/or for the predecessor or subsequent
HomeAdvisor home service professional membership programs) within the 50
United States or the District of Columbia, Puerto Rico or the U.S. Virgin Islands,
(b) who terminate or terminated their home service professional membership with
HomeAdvisor, (c) for whom HomeAdvisor does not have express assent to use
their names, likeness, or trademark on HomeAdvisor’s website or any
HomeAdvisor affiliate website.
Docket No. 635 at 56.
3 The certified Colorado Misappropriation Class is defined as
All persons and entities who are/were Traditional SPs since July 13, 2015, (a)
who were charged for a HomeAdvisor membership (including for HomeAdvisor’s
Pro ConnectTM, Total ConnectTM, and/or for the predecessor or subsequent
HomeAdvisor home service professional membership programs) within the state
of Colorado, (b) who terminate or terminated their home service professional
membership with HomeAdvisor, (c) for whom HomeAdvisor does not have
express assent to use their names, likeness, or trademark on HomeAdvisor’s
website or any HomeAdvisor affiliate website.
Docket No. 635 at 56.
4 The certified Florida Misappropriation Class is defined as
All persons and entities who are/were Traditional SPs since July 13, 2014, (a)
who were charged for a HomeAdvisor membership (including for HomeAdvisor’s
Pro ConnectTM, Total ConnectTM, and/or for the predecessor or subsequent
HomeAdvisor home service professional membership programs) within the state
of Florida, (b) who terminate or terminated their home service professional
membership with HomeAdvisor, (c) for whom HomeAdvisor does not have
express assent to use their names, likeness, or trademark on HomeAdvisor’s
website or any HomeAdvisor affiliate website.
Docket No. 635 at 57.
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The Nationwide Misappropriation Class – represented by class representatives
Kourtney Ervine, Iva Haukenes, Brad McHenry, and Linda McHenry – asserts the
following claims against HomeAdvisor: (1) false association under the Lanham Act, 15
U.S.C. § 1125(a)(1)(A) (Count XLIX); and (2) false advertising under the Lanham Act,
15 U.S.C. § 1125(a)(1)(B) (Count L). Docket No. 449 at 282-86, ¶¶ 973-990; see also
Docket No. 635 at 56. The Colorado Misappropriation Class – represented by class
representatives Brad McHenry and Linda McHenry – asserts the following claims
against HomeAdvisor: (1) violation of the Colorado Consumer Protection Act (Count
LII); and (2) unfair competition under Colorado common law (Count LIII). Docket No.
449 at 288-292, ¶¶ 997-1014; see also Docket No. 635 at 57. The Florida
Misappropriation Class – represented by class representative Kourtney Ervine – asserts
the following claims against HomeAdvisor: (1) violation of the Florida Deceptive and
Unfair Trade Practices Act (Count LIV); and (2) unfair competition under Florida
common law (Count LV). Docket No. 449 at 293-95, ¶¶ 1015-1027; see also Docket
No. 635 at 57. The Idaho Misappropriation Class – represented by Iva Haukenes –
asserts a claim under the Idaho Consumer Protection Act (Count LVI) against
5 The certified Idaho Misappropriation Class is defined as
All persons and entities who are/were Traditional SPs since July 13, 2016, (a)
who were charged for a HomeAdvisor membership (including for HomeAdvisor’s
Pro ConnectTM, Total ConnectTM, and/or for the predecessor or subsequent
HomeAdvisor home service professional membership programs) within the state
of Idaho, (b) who terminate or terminated their home service professional
membership with HomeAdvisor, (c) for whom HomeAdvisor does not have
express assent to use their names, likeness, or trademark on HomeAdvisor’s
website or any HomeAdvisor affiliate website.
Docket No. 635 at 57.
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HomeAdvisor. Docket No. 449 at 295-98, ¶¶ 1028-1036; see also Docket No. 635 at 5.
Finally, for the both the nationwide and state classes, plaintiffs request a declaratory
judgment under 28 U.S.C. § 2201., et seq. (Count LI). Docket No. 449 at 286-288,
¶¶ 991-996.
On February 26, 2024, HomeAdvisor filed a motion seeking summary judgment
on the claims of the certified classes. Docket No. 650. Plaintiffs filed a response,
Docket No. 657, and HomeAdvisor filed a reply. Docket No. 668. On February 26,
2024, plaintiffs filed a motion seeking summary judgment on the claims of the certified
classes. Docket No. 649. HomeAdvisor filed a response, Docket No. 662, and plaintiffs
filed a reply. Docket No. 667.
B. Factual Background6
HomeAdvisor sells annual memberships to home service providers (“SPs”),
which include an online member profile and access to a pay-per-lead marketing service.
Docket No. 650 at 2, ¶ 1. SPs pay for the annual membership at the time of enrollment
and are charged an additional fee for each lead at the time of receipt. Id., ¶ 3.
HomeAdvisor uses its website to generate leads for SPs for either residential or
commercial work. Docket No. 657 at 12, ¶ 1.
1. 	HomeAdvisor’s Terms & Conditions and the Enrollment
Process
HomeAdvisor’s Terms and Conditions (“T&Cs”) state that “[t]his Agreement [ ]
governs [the SP’s] relationship with” HomeAdvisor. Id. at 15, ¶ 17.7 HomeAdvisor
6 The following facts are undisputed unless otherwise indicated.
7 In the introduction section of their motion, plaintiffs state that the T&Cs, since at
least March 2016, have included a licensing provision granting HomeAdvisor “a
perpetual, irrevocable, non-exclusive . . . license to use . . . [the SPs’] Content on the
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places the T&Cs on the “Legal Center” page of HomeAdvisor.com. Id., ¶ 16. Before
2024, HomeAdvisor enrolled SPs via a telephonic enrollment process. Docket No. 649
at 18, ¶ 12; Docket No. 662 at 6, ¶ 12. HomeAdvisor did not recite the content of the
T&Cs to SPs during the enrollment calls and did not provide a copy of the T&Cs to SPs.
Docket No. 649 at 18, ¶¶ 13-14.8 Class representatives Brad and Linda McHenry,
Kourtney Ervine, and Iva Haukenes testified that they never saw HomeAdvisor’s T&Cs
before enrolling with HomeAdvisor. Docket No. 650 at 9, ¶ 48.
HomeAdvisor conducts background screening of SPs prior to enrollment, but
HomeAdvisor does not screen corporate accounts. Id. at 2, ¶ 2; Docket No. 657 at 5-6,
13, ¶¶ 2, 5; Docket No. 668 at 5, ¶ 5.9
[HomeAdvisor] Website.” Docket No. 649 at 10-11 (citing Docket No. 649-19). Plaintiffs
did not include this fact in the statement of undisputed facts section of their motion. For
the reasons discussed in Section III.A. of this order, the Court declines to consider this
evidence as an undisputed fact.
8 HomeAdvisor’s response to these proffered facts states, “Denied. There is no
evidence in the record of what was said and disclosed during each enrollment process
for hundreds of thousands of SPs over a ten-year period, during which the T&Cs and
the enrollment process varied.” Docket No. 662 at 6, ¶ 13 (citing Docket No. 649-15 at
4); see also id., ¶ 14 (“Denied, on the same basis as provided in response to ¶ 13”).
HomeAdvisor’s cited evidence does not support its denial. See Docket No. 649-15 at 4.
Accordingly, the Court deems these facts undisputed.
9 HomeAdvisor’s proffered fact asserts that SPs must “meet certain background
pre-screening criteria” prior to enrolling as a member of HomeAdvisor. Docket No. 650
at 2, ¶ 2. Plaintiffs respond that HomeAdvisor does not “prescreen all SPs” because it
does not screen the “corporate accounts” and does not screen every employee of the
SPs. Docket No. 657 at 5-6, ¶ 2 & n.6. In its reply, HomeAdvisor admits that it does not
prescreen corporate accounts. Docket No. 668 at 5, ¶ 5. The Court finds that the
parties do not dispute that HomeAdvisor screens SPs as a business entity prior to
enrollment, but does not screen the corporate accounts. In the briefing, the parties do
not clearly explain the difference between corporate accounts and other SPs. However,
HomeAdvisor’s T&Cs state that corporate accounts are “larger national” entities.
Docket No. 657-3 at 5. The Court therefore assumes, and the parties do not seem to
dispute, that corporate accounts are larger national companies, while most other SPs
are small businesses.
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2. 	Online Member Profiles
When enrolling with HomeAdvisor, the SP creates an online member profile that
is placed in HomeAdvisor’s directory. Docket No. 650 at 2, ¶ 5. The online member
profile describes the SP’s business, displays ratings and reviews for the SP, and
contains a “Get a Quote” button, as illustrated below for SP “Glass Act Window
Cleaning:”
Id. at 3, ¶¶ 6-7. If a homeowner clicks “Get a Quote,” she is directed to a “Request a
Quote” contact form, as illustrated below for SP “Bergen Certified Inspection”
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Id., ¶ 7. When using the “Request a Quote” form, if a homeowner enters a zip code that
matches the SP’s service area, the information in the form is sent as a service request
directly to the SP’s email address. Id. at 3-4, ¶ 8.10 HomeAdvisor does not charge SPs
for service requests sent via the “Request a Quote” form and those requests are sent
only to the selected SP. Id. at 4, ¶ 9.11
SPs have the option to cancel their receipt of leads, their one-year memberships,
or both. Id., ¶ 10; Docket No. 657 at 6, ¶ 10.12 If an SP cancels her lead service before
10 Plaintiffs’ response to this fact states, “Deny. See Pltfs Resp. to HA UMF ¶ 4.”
Docket No. 657 at 6, ¶ 8. Plaintiffs’ denial at paragraph 4 states that HomeAdvisor
“enters the service area zip codes from where leads will be sent to the SP and the zip
codes can be altered by HA at any time.” Id., ¶ 4 (citing Docket No. 657-1 at 11, ¶ 24;
Docket No. 657-9). Plaintiffs’ response does not dispute HomeAdvisor’s proffered fact
and therefore the Court deems this fact undisputed.
11 Plaintiffs’ response to this fact states, “Deny. See Pltfs Resp. to HA UMF ¶ 4.”
Docket No. 657 at 6, ¶ 9. Plaintiffs’ response does not dispute HomeAdvisor’s proffered
fact and therefore the Court deems this fact undisputed.
12 Plaintiffs admit that SPs have the option to cancel their memberships and
receipt of leads, but assert that HomeAdvisor “imposes actual, significant impediments
in handling such requests from SPs, and HA does not consistently acknowledge or
honor the SPs’ cancellation requests.” Docket No. 657 at 6, ¶ 10.
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the one-year membership expires, HomeAdvisor maintains the online member profile
that the SP paid for through the end of the one-year membership and displays the SP’s
direct contact information on the profile. Docket No. 650 at 4, ¶ 11. When an SP
requests cancellation of her membership or leads, HomeAdvisor does not ask the SP if
she wants her content removed from HomeAdvisor’s website or if she consents to
HomeAdvisor using the content. Docket No. 657 at 14, ¶ 11. Rather, HomeAdvisor
assumes that an SP who paid for an annual membership wants her member profile
page to remain online for the full year. Docket No. 649 at 16, ¶ 5.
After the expiration of an SP’s one-year membership, HomeAdvisor’s policy is to
remove the SP’s online member profile, but HomeAdvisor may continue to display a
“non-member listing” for that former SP in HomeAdvisor’s directory. Docket No. 650 at
4, ¶ 13.13 The non-member listing identifies the former SP as “out of network” and
includes the SP’s business name, direct contact information, and reviews, as illustrated
below for former SP “Advance, Inc.”
Id., ¶ 14. The non-member listing also states “Let’s find you the best HomeAdvisor
screened and approved professionals,” and includes a “Find Other Pros” link which
13 Plaintiffs deny this fact in part, arguing that HomeAdvisor continued to display
the online member profiles of the McHenrys, Ms. Ervine, and Ms. Haukenes more than
a year after their termination dates. Docket No. 657 at 7, ¶ 13.
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directs the homeowner to submit a service request that HomeAdvisor can then sell as a
lead to another SP. Docket No. 649 at 16, ¶ 3.
3. 	Class Representatives
Plaintiffs Brad and Linda McHenry operate the business B&B Carpentry, which
once offered home remodeling services in the Denver, Colorado area. Docket No. 650
at 5, ¶ 16. The McHenrys enrolled twice in HomeAdvisor, on March 31, 2016 and June
26, 2017. Id., ¶ 17. The McHenrys cancelled their HomeAdvisor membership on July 6,
2017. Id.; Docket No. 657 at 8, ¶ 17. To date, the McHenrys continue to operate B&B
Carpentry. Docket No. 657 at 12, ¶ 2.
Iva Haukenes and her husband operated the business Bergen Certified
Inspections, which performed home inspections in the Coeur d’Alene, Idaho area.
Docket No. 650 at 5, ¶ 18. Ms. Haukenes enrolled in HomeAdvisor on February 18,
2017 and cancelled her membership on March 14, 2017. Id., ¶ 19; Docket No. 657 at 8,
¶ 19. In 2019, Ms. Haukenes dissolved Bergen Certified Inspections. Docket No. 650
at 8, ¶ 44.
Kourtney Ervine and her husband operated the business Glass Act Window
Cleaning, which performed window cleaning services in the Palm Beach County, Florida
area. Id. at 5, ¶ 20. Ms. Ervine enrolled in HomeAdvisor in August 2016 and cancelled
her membership on August 23, 2017. Id., ¶ 21; Docket No. 657 at 8, ¶ 21. In 2020, Ms.
Ervine sold Glass Act Window Cleaning and started a different business, a Kava bar, in
Georgia. Docket No. 650 at 8, ¶ 45.
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4. 	Class Representatives’ Profile Pages
HomeAdvisor continued to display the online member profiles of the McHenrys,
Ms. Haukenes, and Ms. Ervine in HomeAdvisor’s directory until approximately October
30, 2018. Id. at 6, ¶¶ 23, 25, 28-29. The McHenrys, Ms. Haukenes, and Ms. Ervine did
not request to have their online member profiles removed from HomeAdvisor’s directory
before filing this lawsuit. Id. at 5, ¶ 22.
From July 6, 2017 to October 30, 2018, if a consumer clicked the “Get a Quote”
button on the McHenrys’ online member profile page and entered the zip code “80021”
in the contact form, the following statement would appear: “B&B Carpentry does not
provide service to 80021.” Id. at 6, ¶ 24. From February 2018 to October 30, 2018,
HomeAdvisor displayed an incorrect business telephone number on Ms. Haukenes’
profile page. Id., ¶ 27. From February 2018 to October 30, 2018, the following
message also appeared on Ms. Haukenes’ profile page: “Please Note: This business is
not a screened and approved member of HomeAdvisor.” Id., ¶ 26. That same
message appeared on the profile pages of other former SPs until October 30, 2018.
Docket No. 649 at 17, ¶ 6. From approximately August 2017 to October 30, 2018, a
search for Ms. Ervine’s profile page would resolve to a webpage that displayed the
following message: “The page you are looking for is no longer available. Follow the
links below to be matched to top-rated pros for your project.” Docket No. 650 at 6, ¶ 29.
In October 2018, HomeAdvisor investigated the four errors described above and
took steps to remediate them. Id. at 7, ¶ 30.14 Regarding the McHenrys’ complaint,
14 Plaintiffs’ response to this fact states, “Deny. HA did not remediate Plaintiffs’
allegations in its Preliminary Injunction Motion. HA’s purported remediations did not
include: (a) removing all former SPs’ Content and (b) implementing a process by which
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HomeAdvisor recoded the “Get a Quote” pathway system-wide to ensure that zip codes
were not inadvertently removed from any SP’s profile after cancelling “lead service.” Id.,
¶ 32. HomeAdvisor rewrote the alert that appears when a homeowner enters a zip
code outside an SP’s specified geographic region to read: “[SP business name] is not
currently accepting service requests from HomeAdvisor in [zip code].” Id. Regarding
the “not screened” alert on Ms. Haukenes’ page, HomeAdvisor recoded the alert
system-wide to read: “Please Note: This business is not a current member of the
HomeAdvisor network.” Id., ¶ 35.15 HomeAdvisor investigated the incorrect phone
number on Ms. Haukenes’ page and confirmed that this error was an anomaly that did
not affect other SPs’ profile pages. Id. at 7-8, ¶ 37. Furthermore, HomeAdvisor
determined that the “no longer available” page on Ms. Ervine’s page was not intended
to appear in search results on search engines. Id. at 8, ¶ 39. HomeAdvisor recoded all
“no longer available” pages system-wide to send a signal to search engines that the
pages do not exist and confirmed that these pages now show “404” error signals only.
Id., ¶ 40. On October 30, 2018, HomeAdvisor removed the member profiles of the
McHenrys, Ms. Haukenes, and Ms. Ervine from HomeAdvisor’s directory. Id. at 7-8,
¶¶ 33, 38, 41.
HA would seek affirmative assent from the SPs to continue to use their Content after
termination.” Docket No. 657 at 9, ¶ 30. This denial is unresponsive to HomeAdvisor’s
proffered fact and the Court therefore deems the fact admitted.
15 Plaintiffs’ response to this fact states, “Deny, except Admit that such condition
existed on November 2, 2018, the date of the Declaration on which HA relies.” Docket
No. 657 at 10, ¶ 35. Plaintiffs cite no evidence to support their denial of HomeAdvisor’s
proffered fact. See Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer,
§ III.F.3.b.iv (“Any denial shall be accompanied by a brief factual explanation of the
reason(s) for the denial and a specific reference to material in the record supporting
the denial.”). Accordingly, the Court deems this fact admitted.
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There is no evidence in the record that any consumer saw the alert – “[SP
business name] does not provide service to [zip code]” – on the McHenrys’ profile page
or the profile page of any other former SP. Docket No. 662 at 7, ¶ 18.16 Plaintiffs did
not submit any consumer surveys identifying any evidence of actual confusion arising
from the display of their information on HomeAdvisor’s website. Docket No. 650 at 10,
¶ 52.
II. 	LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
16 Plaintiffs’ response to this fact states,
Denied. HA charges SPs membership fees to create the SPs’ profiles that are
placed on HA’s website to which HA is purportedly driving customer traffic. DS
Decl. Ex. 24 at ¶ 4. Also, HA admits having observed traffic going to the profile
pages. Id. at ¶ 27 (HA noted traffic going to Plaintiffs’ pages “after these
businesses requested that we cancel their memberships.”). See RD ¶¶ 2, 11
(Over 155 million external links direct traffic to HomeAdvisor.com). See Pltfs
UMF ¶ 1-5.
Docket No. 667 at 3, ¶ 18. Plaintiffs’ response and cited exhibits do not provide any
evidence suggesting that any consumer saw the specific zip code alert on the
McHenrys’ profile page or the profile pages of other SPs. See Docket No. 649-25 at 3-
4, 16, ¶¶ 4, 27; Docket No. 667-1 at 1-2, 8-9, ¶¶ 2, 11. Accordingly, the Court deems
this fact undisputed.
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“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. “Conversely, if the
moving party has the burden of proof [at trial], a more stringent summary judgment
standard applies.” Pelt v. Utah, 539 F.3d 1271, 1280 (10th Cir. 2008). The “moving
party must establish, as a matter of law, all essential elements of the issue before the
nonmoving party can be obligated to bring forward any specific facts alleged to rebut the
movant’s case.” Id.
When reviewing a motion for summary judgment, a court must view the evidence
in the light most favorable to the non-moving party. Bausman, 252 F.3d at 1115.
Cross-motions for summary judgment must be viewed separately, and the denial of one
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does not necessitate the granting of the other. United States v. Supreme Court of N.M.,
839 F.3d 888, 906-07 (10th Cir. 2016) (citations omitted).
III. 	ANALYSIS
A. Preliminary Matters
1. 	Summary Judgment Practice Standards
As a preliminary matter, both parties have improperly raised facts throughout
their summary judgment motions in violation of this Court’s Practice Standards. The
Practice Standards on summary judgment motions state that the movant, in a section of
the brief entitled “Statement of Undisputed Material Facts,” must
set forth in simple, declarative sentences, separately numbered and
paragraphed, each material fact which the movant believes is not in dispute and
which supports movant’s claim that movant is entitled to judgment as a matter of
law. . . . Each separately numbered and paragraphed fact must be
accompanied by a specific reference to material in the record which establishes
that fact.
Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.i-ii. The
Practice Standards provide that, in a section of the brief entitled, “Response to
Statement of Undisputed Facts,” the nonmovant must “admit or deny” each asserted
material fact set forth by the movant and “[a]ny denial shall be accompanied by a brief
factual explanation of the reason(s) for the denial and a specific reference to material in
the record supporting the denial.” Id., § III.F.3.b.iv. (emphasis omitted).
Plaintiffs’ motion for summary judgment includes a 15-page introduction section,
citing numerous facts that were not included in their statement of undisputed material
facts section. See Docket No. 649 at 1-15. Likewise, HomeAdvisor’s motion cites
numerous facts in the analysis section and throughout footnotes that were not included
in its statement of undisputed material facts section. See Docket No. 650 at 12-13, 16,
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20-23 & nn.5-7, n.11, nn.14-17. As the Practice Standards emphasize, the “sole
purpose of these procedures is to establish facts and determine which of them are in
dispute.” Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.vii.
Both parties have significantly compromised the summary judgment process by citing
additional evidence in their introduction or argument sections that were not included in
their statement of undisputed material facts sections. Had the parties included the
evidence in the proper sections of their motions, the opposing party would have been
required to admit or deny those facts and provide a basis for any denials, which would
assist the Court in determining what facts are undisputed and what facts are disputed.
See id., § III.F.3.b.iv. Moreover, the requirement in the Practice Standards that a
moving party state its facts in the form of statements is consistent with Fed. R. Civ. P.
56(e), which refers to “assertion[s] of fact.” Rule 56 distinguishes such assertions or
statements of fact from the evidence that supports the assertions. See, e.g., Fed. R.
Civ. P. 56(c)(1) (“A party asserting that a fact cannot be or is genuinely disputed must
support that assertion by: (A) citing to particular parts of materials in the record”). Thus,
for the parties to cite to exhibits in their introduction or analysis sections, as opposed to
in a fact section following the Practice Standards, frustrates the summary judgment
process. As a result, the Court will not consider such evidence to establish an
undisputed fact.
2. 	Objections to Evidence
HomeAdvisor argues that several of plaintiffs’ exhibits are inadmissible. First,
HomeAdvisor objects to Docket No. 649-16, an exhibit that contains Google search
results, because it is “unauthenticated” and “unreliable hearsay.” Docket No. 662 at 3
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n.3. HomeAdvisor argues that plaintiffs do not state who performed the Google search
or identify a “qualified person” who could testify to the reliability of the results under Fed.
R. Evid. 902(13). Id. Plaintiffs respond that Fed. R. Evid. 901(a) applies to the Google
search results and that rule only requires “evidence sufficient to support a finding that
the item is what the proponent claims it is.” Docket No. 667 at 1 n.1 (quoting United
States v. Isabella, 918 F.3d 816, 843 (10th Cir. 2019)). Furthermore, plaintiffs argue
that the exhibit was authenticated by the declaration of plaintiffs’ attorney Kimberly M.
Donaldson-Smith. Id. (citing Docket No. 649-1 at 4-5, 12, ¶¶ 14-17, 42).
The Court overrules HomeAdvisor’s first objection. Rule 901(a) provides that, to
satisfy the requirement of authenticating an item of evidence, “the proponent must
produce evidence sufficient to support a finding that the item is what the proponent
claims it is.” Fed. R. Evid. 901(a). The testimony of a witness with knowledge of the
item is sufficient to satisfy the authentication requirement. Fed. R. Evid. 901(b)(1).
“Although Rule 901 serves an important gatekeeping function, ‘[t]he bar for
authentication of evidence is not particularly high.’” Isabella, 918 F.3d at 843 (quoting
United States v. Gagliardi, 506 F.3d 140, 151 (2d Cir. 2007)). In her declaration, Ms.
Donaldson-Smith states that, based on her personal knowledge, Docket No. 649-16 is
“a true and correct copy of the query ran on Google.com for pages that appear on
‘Homeadvisor.com’ with the term ‘Out of Network’ (the search string used and inputted
into Google.com search bar was: site:homeadvisor.com ‘out of network’).” Docket No.
649-1 at 12, ¶ 42. Ms. Donaldson-Smith attests that the Google search was conducted
on February 24, 2024. Id. at 4-5, ¶¶ 14-15. The Court finds that Ms. Donaldson-Smith’s
declaration sufficiently authenticates Docket No. 649-16. See Live Face On Web, LLC
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v. Integrity Sols. Grp., Inc., 421 F. Supp. 3d 1051, 1069 (D. Colo. 2019) (holding that
website printouts were sufficiently authenticated by witness’ testimony that the exhibit
matched the “webpage he observed”). The Court rejects HomeAdvisor’s argument that
plaintiffs must demonstrate the reliability of the Google search results. See United
States v. Quintana, 2023 WL 4287509, at *6 (10th Cir. June 30, 2023) (noting that the
Tenth Circuit has “rejected the proposition that Rule 901 requires a proponent of
evidence to establish the accuracy of information as a condition precedent to
admissibility”). Accordingly, the Court overrules HomeAdvisor’s authentication objection
to Docket No. 649-16.17
Second, HomeAdvisor objects to Docket No. 657-23, a printout of B&B
Carpentry’s website, on the grounds that the exhibit is not authenticated and is
inadmissible hearsay. Docket No. 668 at 3 n.2. HomeAdvisor argues that plaintiffs do
not identify who retrieved the website printout. Id. Moreover, HomeAdvisor contends
that the exhibit is “hearsay because Plaintiffs rely on the statements for the truth of the
matter asserted – to prove that the McHenrys still perform residential services.” Id.
The Court overrules HomeAdvisor’s second objection. Ms. Donaldson-Smith
attests that Docket No. 657-23 “is a true and correct copy of B&B Carpentry’s website
homepage, located at https://bandbcarpentry.com/ (last visited 3/18/24).” Docket No.
657-1 at 15, ¶ 44. The Court finds that Ms. Donaldson-Smith’s declaration sufficiently
authenticates Docket No. 657-23. See Live Face On Web, 421 F. Supp. 3d at 1069.
17 Without any further explanation, HomeAdvisor states that the Google search
results are “hearsay.” Docket No. 662 at 3 n.3. The Court will not consider this
undeveloped evidentiary argument. See Troudt v. Oracle Corp., No. 16-cv-00175-REB-
SKC, 2019 WL 1006019, at *3 (D. Colo. Mar. 1, 2019) (declining to consider
“undeveloped” hearsay objections at the summary judgment stage).
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Moreover, “[a]t the summary judgment stage, evidence need not be submitted ‘in a form
that would be admissible at trial.’” Argo v. Blue Cross & Blue Shield of Kan., Inc., 452
F.3d 1193, 1199 (10th Cir. 2006) (citing Celotex Corp., 477 U.S. at 324). Nevertheless,
“the content or substance of the evidence must be admissible.” Id. (quoting Thomas v.
Int’l Bus. Machs., 48 F.3d 478, 485 (10th Cir. 1995)); see also Fed. R. Civ. P. 56(c)(2).
For example, a party may “submit affidavits in support of summary judgment, despite
the fact that affidavits are often inadmissible at trial as hearsay, on the theory that the
evidence may ultimately be presented at trial in an admissible form.” Argo, 452 F.3d at
1199. Here, plaintiffs would be able to call the McHenrys at trial to testify to whether
their company still performs residential services. Accordingly, the Court overrules
HomeAdvisor’s hearsay objection to Docket No. 657-23.
Third, HomeAdvisor objects to Docket Nos. 657-9, 657-11, 657-12, 657-13, 657-
14, and 657-15 as “unsworn, hearsay statements.” Docket No. 668 at 1-2 n.1. Those
exhibits contain “narratives” that class counsel received from “thousands of individuals
who identified themselves as current and former [HomeAdvisor] SPs, concerning their
experiences as SPs” (the “intakes” or “web forms”). Docket No. 657-1 at 11, ¶¶ 23-25.
The web forms list each individual’s name, email address, phone number, city and
state, and contain the individual’s responses to several questions. See Docket Nos.
657-9, 657-11, 657-12, 657-13, 657-14, and 657-15. HomeAdvisor argues that the
Court cannot consider the web forms because plaintiffs have identified no hearsay
exception. Docket No. 668 at 1-2 n.1. HomeAdvisor argues that the web forms contain
statements that are “unsworn and not given under the penalty of perjury” and therefore
the web forms are “insufficient to create an issue of fact.” Id. (quoting United States ex
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19
rel. Doe v. Heart Sol., PC, 923 F.3d 308, 315 (3d Cir. 2019)). Furthermore,
HomeAdvisor asserts that “none of the individuals referenced in the web forms was
disclosed, and thus cannot provide evidence at trial.” Id. (citing Docket No. 668-2 at 8;
Docket No. 668-3 at 6).18 HomeAdvisor also objects to Docket No. 657-15 because it
“was not produced in discovery.” Id. (citing Fed. R. Civ. P. 37(c)(1)).
Plaintiffs respond that the Court can properly consider this evidence because the
“SP Intakes were produced to HA throughout the litigation until the June 30, 2021
discovery cut-off date . . . and include SPs who reside within the Court’s subpoena
power and who can be called at trial.” Docket No. 667 at 2 n.3 (citing United States v.
MyLife.com, Inc., 567 F. Supp. 3d 1152, 1163 (C.D. Cal. 2021) (“MyLife”)). Plaintiffs
assert that, “[i]t is well settled that a party need not produce evidence in a form that
would be admissible at trial; instead, only the content or substance of the evidence must
be admissible at trial.” Id. (quoting Cousik v. City & Cnty. of Denver, No. 22-cv-01213-
NYW-KAS, 2024 WL 896756, at *2 n.3 (D. Colo. Mar. 1, 2024)).
The Court sustains HomeAdvisor’s objection seeking to exclude Docket Nos.
657-9, 657-11, 657-12, 657-13, 657-14, and 657-15. At the summary judgment stage, if
“a proper hearsay objection has been made and preserved, ‘[i]t is well settled in this
circuit that [a court] can consider only admissible evidence.’” Johnson v. Weld Cnty.,
Colo., 594 F.3d 1202, 1209 (10th Cir. 2010) (quoting Wright-Simmons v. City of
Oklahoma City, 155 F.3d 1264, 1268 (10th Cir. 1998)). Hearsay is an out of court
statement offered into evidence to “prove the truth of the matter asserted.” Fed. R.
18 HomeAdvisor does not cite a federal rule in support of this argument; however,
the Court presumes that HomeAdvisor makes this argument under Fed. R. Civ. P.
37(c)(1).
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Evid. 801(c)(2). Hearsay is not admissible unless it falls within a hearsay exception in
Rules 803, 804, 805, or 807, or unless a federal statute provides otherwise. See Fed.
R. Evid. 802; see also United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015)
(“Hearsay is generally inadmissible as evidence because it is considered unreliable”).
The “proponent of hearsay evidence bears the burden of establishing the applicability of
a hearsay exception.” United States v. Irvin, 682 F.3d 1254, 1262 (10th Cir. 2012).
Here, the web forms are hearsay because the declarants wrote the information out of
court and plaintiffs offer the forms to prove the truth of the matter asserted in the forms.
See Docket Nos. 657-9, 657-11, 657-12, 657-13, 657-14, and 657-15. Plaintiffs,
however, do not identify any applicable hearsay exception in their response.19 Plaintiffs
could have submitted declarations or affidavits from some of the individuals identified in
the web forms and the Court could have considered that evidence. See Fed. R. Civ. P.
56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made
19 In support of their argument, plaintiffs cite MyLife, a case from the Central
District of California. Docket No. 667 at 2 n.3. In that case, the court overruled
defendants’ hearsay objection and admitted a “spreadsheet of 175 alleged consumer
complaints offered by the Government” under the residual hearsay exception in Rule
807. MyLife.com, 567 F. Supp. 3d at 1163. Under Rule 807, a hearsay statement may
be admissible if “(1) the statement is supported by sufficient guarantees of
trustworthiness – after considering the totality of circumstances under which it was
made and evidence, if any, corroborating the statement;” and “(2) it is more probative on
the point for which it is offered than any other evidence that the proponent can obtain
through reasonable efforts.” Fed. R. Evid. 807(a). In MyLife, the court found that the
government satisfied Rule 807’s requirements because the “complainants contacted a
federal agency of their own volition to complain about MyLife’s practices” and it would
be “impractical to force the Government to obtain affidavits from hundreds or thousands
of people to demonstrate the scope of Defendants’ misconduct.” MyLife.com, 567 F.
Supp. 3d at 1163. Here, plaintiffs do not explicitly invoke Rule 807. However, even if
plaintiffs had identified Rule 807 as the applicable hearsay exception, they present no
argument or evidence suggesting that the web forms are “supported by sufficient
guarantees of trustworthiness.” See Fed. R. Evid. 807(a)(1). The Court therefore finds
that MyLife is distinguishable.
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on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated”); see also
Argo, 452 F.3d at 1199 (noting that a court may consider “affidavits in support of
summary judgment, despite the fact that affidavits are often inadmissible at trial as
hearsay”). However, plaintiffs did not file any declarations or affidavits from the
individuals identified in the web forms. Accordingly, the Court finds that Docket Nos.
657-9, 657-11, 657-12, 657-13, 657-14, and 657-15 are inadmissible hearsay and
declines to consider those exhibits at the summary judgment stage. See Montes v. Vail
Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007) (holding that a court must disregard
“hearsay on summary judgment when . . . there is a proper objection to its use and the
proponent of the testimony can direct us to no applicable exception to the hearsay
rule”); Johnson, 594 F.3d at 1210 (declining to consider hearsay statements when the
proponent failed to provide “sworn statements” from the declarants); Brown v. Perez,
835 F.3d 1223, 1232 (10th Cir. 2016) (finding that a “letter” was inadmissible hearsay at
the summary judgment stage because the proponent did not file an affidavit
demonstrating that the declarant “would testify to the letter’s competitive injury
assertions at trial”).20
20 Moreover, the Court agrees with HomeAdvisor that Docket No. 657-15 should
also be excluded under Fed. R. Civ. P. 37(c)(1). Rule 26 of the Federal Rules of Civil
Procedure requires that a party must, without awaiting a discovery request, provide to
the other party “the name and, if known, the address and telephone number of each
individual likely to have discoverable information—along with the subjects of that
information—that the disclosing party may use to support its claims or defenses.” Fed.
R. Civ. P. 26(a)(1)(A)(i). Rule 37 provides that, if a party fails to provide information or
identify a witness as required by Rule 26, “the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial, unless
the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The
discovery deadline in this case was June 30, 2021. Docket No. 408 at 1. Docket No.
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B. HomeAdvisor’s Motion for Summary Judgment
Principally, HomeAdvisor argues that plaintiffs’ claims are moot to the extent that
the claims are based on allegations that predate HomeAdvisor’s system-wide changes
implemented in October 2018. Docket No. 650 at 11-14. Furthermore, HomeAdvisor
argues that it is entitled to summary judgment on all of the certified claims, including the
Lanham Act claims and state law claims under Florida, Colorado, and Idaho law. Id. at
14-30.
1. 	Mootness
“Under Article III of the Constitution [federal courts] may only adjudicate actual,
ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988); see also Wiley v. Nat’l
Collegiate Athletic Ass’n, 612 F.2d 473, 475 (10th Cir. 1979) (noting that mootness “has
its constitutional origin in the ‘case or controversy’ limitation of Article III”). Thus,
“[m]ootness is a threshold issue” that implicates the Court’s subject-matter jurisdiction.
Disability Law Ctr. v. Millcreek Health Ctr., 428 F.3d 992, 996 (10th Cir. 2005). In the
mootness inquiry, the “crucial question is whether granting a present determination of
the issues offered will have some effect in the real world.” Citizens for Responsible
Gov’t State Pol. Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)
(internal quotations, citation, and alterations omitted).
657-15 contains information that class counsel received from SPs from June 2021 to
the present date, “[a]fter discovery closed.” Docket No. 657-1 at 11, ¶ 25; see also
Docket No. 657-15. There is no evidence in the record suggesting that plaintiffs
disclosed the names of the individuals identified in Docket No. 657-15 to HomeAdvisor
any time prior to the summary judgment stage. Plaintiffs make no argument that the
failure to disclose this information was “substantially justified or is harmless.” See Fed.
R. Civ. P. 37(c)(1); Lancaster v. Goodman Real Est., Inc., 2023 WL 112321, at *2
(D.N.M. Jan. 5, 2023) (noting that the presumption under Rule 37 “is that previously
undisclosed evidence is excluded”).
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23
However, “a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the practice.” Friends of
the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citation
omitted). The voluntary cessation exception “exists to counteract the possibility of a
defendant ceasing illegal action long enough to render a lawsuit moot and then resume
the illegal conduct.” Prison Legal News v. Fed. Bureau of Prisons, 944 F.3d 868, 880-
81 (10th Cir. 2019) (internal alterations and citation omitted). The voluntary cessation
exception does not apply, and a case is moot, “if the defendant carries the formidable
burden of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Id. at 881 (internal quotations and citation omitted);
see also Equal Emp. Opportunity Comm’n v. CollegeAmerica Denver, Inc., 869 F.3d
1171, 1173-74 (10th Cir. 2017); Vitamins Online, Inc. v. Heartwise, Inc., 71 F.4th 1222,
1246 (10th Cir. 2023) (noting that “voluntary cessation does not normally moot a
request for injunctive relief”). A defendant has a “heavy” burden of showing that the
voluntary cessation exception does not apply. Prison Legal News, 944 F.3d at 881. “To
carry its burden, a defendant must do more than offer a mere informal promise or
assurance that the challenged practice will cease or announce an intention to change.”
Id. (internal alterations, quotations, and citation omitted). Instead, a defendant must
undertake “changes that are permanent in nature” and that “foreclose a reasonable
chance of recurrence of the challenged conduct.” Id. (quoting Tandy v. City of Wichita,
380 F.3d 1277, 1291 (10th Cir. 2004)).
HomeAdvisor argues that plaintiffs’ claims are moot to the extent the claims are
based on the four “errors” that HomeAdvisor rectified in October 2018. Docket No. 650
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at 11-12. HomeAdvisor contends that the four errors – (1) the zip code error in the
McHenrys’ profile, (2) the incorrect phone number in Ms. Haukenes’ profile, (3) the
alerts stating, “this page no longer exists,” and (4) the alerts stating that a former
member was “not screened” – were “unintentional and immediately rectified by system-
wide changes.” Id. at 12. HomeAdvisor argues that it investigated plaintiffs’ complaints,
determined that the errors were “attributable to unintentional coding errors,” and
implemented system-wide coding changes. Id.21 As a result, HomeAdvisor contends
that its voluntary termination of the challenged practice moots the claims for prospective
equitable relief because “it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Id. at 11 (quoting Prison Legal News, 944 F.3d at
884). Furthermore, HomeAdvisor argues that the pre-October 2018 allegations are also
moot because the class representatives “abandoned their home services businesses
and therefore face no harm from hypothetical future misstatements.” Id. at 13.
HomeAdvisor contends that it is undisputed that the class representatives do not own
their businesses or perform home services anymore. Id. at 13-14. HomeAdvisor
asserts that a “closed business with no intent to reopen does not maintain a live
controversy.” Id. at 13 (quoting Pitkin Supermarket, Inc. v. United States, 2016 WL
6879254, at *5-6 (E.D.N.Y. Nov. 21, 2016)).
Plaintiffs respond that the voluntary cessation exception applies to
HomeAdvisor’s conduct that occurred prior to October 2018 because HomeAdvisor has
21 HomeAdvisor also argues that it “swore in a declaration that it has no intention
of repeating the above errors (nor could it plausibly have any reason to repeat them).”
Docket No. 650 at 13 (citing Docket No. 650-2 at 14-16, ¶¶ 23-25). HomeAdvisor did
not raise this fact in its statement of undisputed material facts section. Accordingly, the
Court declines to consider this evidence for the reasons discussed previously.
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not met its heavy burden of establishing that the wrongful behavior could not reasonably
be expected to recur. Docket No. 657 at 18-19.22 Moreover, plaintiffs contend that the
McHenrys continue to operate their business, B&B Carpentry, and offer commercial and
residential services. Id. at 19. Even if the class representatives’ claims were moot,
plaintiffs argue that the class representatives may continue to pursue the
misappropriation claims on behalf of the class due to the “flexible character” of the
mootness doctrine in the class action context. Id. at 20 & n.14 (quoting Clark v. State
Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1138 (10th Cir. 2009)).
The Court finds that HomeAdvisor has failed to carry its heavy burden of showing
that the voluntary cessation exception does not apply to this case. Although
HomeAdvisor argues that the four errors were “attributable to unintentional coding
errors,” see Docket No. 650 at 12, HomeAdvisor’s proffered facts do not establish that
the statements on HomeAdvisor’s website were unintentionally caused by coding
errors.23 It is undisputed that HomeAdvisor made coding changes and rewrote the
22 Plaintiffs also argue that the Court previously rejected HomeAdvisor’s
mootness arguments at the class certification stage and that HomeAdvisor is improperly
seeking reconsideration of those arguments at the summary judgment stage. Docket
No. 657 at 17. At the class certification stage, defendants argued that the proposed
class representatives lacked standing and that the equitable relief was moot because
HomeAdvisor removed the online profiles of Ms. Ervine, Ms. Haukenes, and the
McHenrys. Docket No. 635 at 8. HomeAdvisor asserts a different mootness theory at
the summary judgment stage, namely, that it rectified the four errors on the class
representatives’ profile pages. See Docket No. 650 at 11-14. The Court therefore
rejects plaintiffs’ argument that HomeAdvisor is improperly seeking reconsideration of
its prior mootness arguments.
23 For example, HomeAdvisor asserts that, “[f]rom around February 2018 to
October 30, 2018, HA inadvertently displayed an incorrect business phone number on
Plaintiff Haukenes’s profile page.” Docket No. 650 at 6, ¶ 27 (citing Docket No. 650-5 at
10-11). The cited exhibit does not establish that HomeAdvisor “inadvertently” displayed
the incorrect number. See Docket No. 650-5 at 10-11. Likewise, HomeAdvisor asserts
that it investigated the McHenrys’ complaint and determined that “an unintentional
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alerts after investigating the complaints from the class representatives. See Docket No.
650 at 7-8, ¶¶ 30, 32, 35, 39-40. However, HomeAdvisor has presented no evidence
establishing that the coding changes are “permanent in nature” and that the changes
“foreclose a reasonable chance of recurrence of the challenged conduct.” See Prison
Legal News, 944 F.3d at 881; see also Vitamins Online, Inc., 71 F.4th at 1247 (holding
that defendant did not satisfy its burden of establishing that the voluntary cessation
exception does not apply by merely arguing that it has “stopped manipulating reviews”).
Because HomeAdvisor has failed to show that “it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur,” see Prison Legal News,
944 F.3d at 881, the Court finds that the voluntary cessation exception applies to the
four errors on the class representatives’ profile pages.
In addition, the Court rejects HomeAdvisor’s argument that the claims arising out
of the pre-October 2018 allegations are moot because the class representatives
abandoned their home services businesses. See Docket No. 650 at 13. It is
undisputed that Ms. Haukenes dissolved Bergen Certified Inspections in 2019 and Ms.
Ervine sold Glass Act Window Cleaning in 2020. Id. at 8, ¶¶ 44-45. Nevertheless, the
McHenrys continue to operate B&B Carpentry. Docket No. 657 at 12, ¶ 2. “[T]he
Supreme Court has applied the mootness doctrine less strictly in the class action
context.” Clark, 590 F.3d at 1138. “[B]ecause a certified class becomes an
independent juridical entity capable of satisfying the standing requirements of Article III,
coding error had removed zip codes from their profile, causing the zip code error.”
Docket No. 650 at 7, ¶ 31 (citing Docket No. 650-2 at 11, ¶ 16; Docket No. 650-9 at 8,
64:19-65:7). The cited exhibits do not establish that “an unintentional coding error”
removed the zip codes from the McHenrys’ profile. See Docket No. 650-2 at 11, ¶ 16;
Docket No. 650-9 at 8, 64:19-65:7.
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the mooting of a named plaintiff's claims after class certification does not moot the
claims of the class.” Id. (citing Franks v. Bowman Transp. Co., 424 U.S. 747, 755-56
(1976); Sosna v. Iowa, 419 U.S. 393, 399 (1975)). Accordingly, the Court finds that
equitable relief for the misappropriation classes, stemming from HomeAdvisor’s conduct
prior to October 2018, is not moot. The Court therefore denies this portion of
HomeAdvisor’s motion.
2. 	Lanham Act Claims
The Lanham Act provides, in relevant part:
Any person who, on or in connection with any goods or services, or any container
for goods, uses in commerce any word, term, name, symbol, or device, or any
combination thereof, or any false designation of origin, false or misleading
description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to
the affiliation, connection, or association of such person with another
person, or as to the origin, sponsorship, or approval of his or her goods,
services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature,
characteristics, qualities, or geographic origin of his or her or another
person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is or is
likely to be damaged by such act.
15 U.S.C. § 1125(a)(1). The Lanham Act “creates two distinct bases of liability: false
association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int’l, Inc.
v. Static Control Components, Inc., 572 U.S. 118, 122 (2014); see also Crocs, Inc. v.
Effervescent, Inc., No. 06-cv-00605-PAB-KMT, 2021 WL 4170997, at *3 (D. Colo. Sept.
14, 2021). The Nationwide Misappropriation Class asserts a claim for false advertising
under § 1125(a)(1)(B) and a claim for false association under § 1125(a)(1)(A). Docket
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No. 449 at 282-286, ¶¶ 973-990. HomeAdvisor argues that it is entitled to summary
judgment on both claims. Docket No. 650 at 14.
As an initial matter, the Court notes that plaintiffs do not clearly explain in the
briefing how their theory of HomeAdvisor’s alleged wrongdoing fits the elements of the
Lanham Act’s provisions for false advertising and false association. The gist of
plaintiffs’ theory appears to be that HomeAdvisor has “wrongly exploit[ed] former SPs”
by using former SPs’ information to “drive traffic to HA’s website.” See Docket No. 657
at 2. Plaintiffs state that HomeAdvisor “maintains former SPs’ Content on its website to
divert potential legitimate customers who are seeking to connect with the former SPs to
HA’s website,” where HomeAdvisor then directs the customers to submit “a revenue-
generating lead” that HomeAdvisor can sell to current SPs. Id. at 3; see also Docket
No. 649 at 7-8 (arguing that HomeAdvisor uses search engine optimization to redirect
customers to HomeAdvisor’s “website through the SPs’ profile page, where HA uses
such content, without authorization, to divert a potential customer to submit a service
request that will generate a lead for HA to sell”).
a. 	False Advertising Claim
A false advertising claim under the Lanham Act requires proof that: (1) defendant
“made a false or misleading description of fact or representation of fact in a commercial
advertisement about its own or another’s product;” (2) defendant’s “misrepresentation
was material, in that it was likely to influence the purchasing decision;” (3) defendant’s
“misrepresentation actually deceived or had the tendency to deceive a substantial
segment of its audience;” (4) defendant “placed the false or misleading statement in
interstate commerce;” and (5) plaintiff “has been or is likely to be injured as a result of
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the misrepresentation, either by direct diversion of sales or by a lessening of goodwill
associated with its products.” Bimbo Bakeries USA, Inc. v. Sycamore, 29 F.4th 630,
643-44 (10th Cir. 2022) (internal quotations, alterations, and citations omitted); see also
Warming Trends, LLC v. Stone, No. 19-cv-03027-PAB-STV, 2023 WL 2713954, at *6
(D. Colo. Mar. 30, 2023). HomeAdvisor argues that plaintiffs cannot establish the first
or fifth elements of their false advertising claim. Docket No. 650 at 15-17, 26-27.
i. 	First Element
The first element of a false advertising claim requires proof that defendant “made
a false or misleading description of fact or representation of fact in a commercial
advertisement about its own or another’s product.” Sycamore, 29 F.4th at 643-44. To
constitute “commercial advertising” under the Lanham Act, the factual representation
must be: (i) “commercial speech;” (ii) “by a defendant who is in commercial competition
with plaintiff;” (iii) “for the purpose of influencing consumers to buy defendant’s goods or
services;” and (iv) “disseminated sufficiently to the relevant purchasing public to
constitute ‘advertising’ or ‘promotion’ within that industry.” Strauss v. Angie’s List, Inc.,
951 F.3d 1263, 1267 (10th Cir. 2020) (citation omitted); see also Warming Trends, LLC
v. Stone, No. 19-cv-03027-PAB-STV, 2023 WL 2716652, at *14 (D. Colo. Mar. 30,
2023).
To establish the falsity prong of the first element, “a plaintiff may show that the
statement was literally false, either on its face or by necessary implication, or that the
statement was literally true but likely to mislead or confuse consumers.” Sycamore, 29
F.4th at 644 (citation omitted); see also I Dig Texas, LLC v. Creager, 98 F.4th 998, 1009
(10th Cir. 2024). However, “the foregoing framework only applies if the statement under
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attack is a statement of fact. Courts have long concluded that only statements of fact
are actionable under the Lanham Act.” Sycamore, 29 F.4th at 644 (collecting cases).
“A statement can be literally false only if it is unambiguous.” Creager, 98 F.4th at
1009.24 If the statement is “susceptible to more than one reasonable interpretation, the
advertisement cannot be literally false.” Id. at 1010 (quoting Time Warner Cable, Inc. v.
DIRECTV, Inc., 497 F.3d 144, 158 (2d Cir. 2007)). In “assessing whether an
advertisement is literally false, a court must analyze the message conveyed within its
full context.” Zoller Laboratories, LLC. v. NBTY, Inc., 111 F. App’x 978, 984 (10th Cir.
2004) (unpublished) (citation omitted). A plaintiff “bears the burden of proving literal
falsity” under the Lanham Act. BASF Corp. v. Old World Trading Co., 41 F.3d 1081,
1091 (7th Cir. 1994).
“Where the advertisement is literally false, a violation may be established without
evidence of consumer deception.” Zoller, 111 F. App’x at 982 (citation omitted).
However, if “a plaintiff’s theory of recovery is premised upon a claim of implied
falsehood, a plaintiff must demonstrate, by extrinsic evidence, that the challenged
advertisements tend to mislead or confuse consumers.” Id. (citation and internal
alterations omitted); see also Vincent v. Utah Plastic Surgery Soc., 621 F. App’x 546,
550 (10th Cir. 2015) (unpublished) (noting that if a statement is not literally false, a
plaintiff must show “actual consumer deception”). A plaintiff can make this showing by
demonstrating that a “statistically significant part of the commercial audience holds the
false belief allegedly communicated by the challenged advertisement.” Vincent, 621 F.
24 The issue of whether a statement is ambiguous is a question of law. Creager,
98 F.4th at 1010.
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31
App’x at 550. For example, a plaintiff may submit “consumer survey data.” Zoller, 111
F. App’x at 982; see also In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Pracs.
& Antitrust Litig., 507 F. Supp. 3d 1289, 1375 (D. Kan. 2020), aff’d, 44 F.4th 959 (10th
Cir. 2022) (“Consumer surveys are normally used to satisfy this additional
requirement.”); Sycamore, 29 F.4th at 646 (“Consumer surveys in Lanham Act cases
are properly limited to proving that factual claims that are not literally false nonetheless
mislead consumers.”).
Plaintiffs assert that the following statements constitute false advertising under
the Lanham Act: (A) “Let’s find you the best HomeAdvisor screened and approved
professionals” and “Find Other Pros;” (B) “Please Note: This business is not a screened
and approved member of HomeAdvisor;” and (C) “[SP business name] does not provide
service to [zip code].” Docket No. 657 at 21-22.25
(A) 	“Let’s find you the best HomeAdvisor screened
and approved professionals” and “Find Other
Pros”
HomeAdvisor argues that the statements appearing on non-member listings,
including “Let’s find you the best HomeAdvisor screened and approved professionals,”
and “Find Other Pros,” are not actionable statements under the Lanham Act because
they are not statements of fact. Docket No. 668 at 14-15 (citing Sycamore, 29 F.4th at
644). Furthermore, HomeAdvisor argues that these statements are not literally false
because the statements do not say anything false about former SPs. Id. at 14.
25 Because the parties discuss these statements at length in both the briefing on
HomeAdvisor’s motion and the briefing on plaintiffs’ motion, see Docket No. 650 at 15-
17; Docket No. 657 at 21-25; Docket No. 668 at 12-15; Docket No. 649 at 26-27; Docket
No. 662 at 15-22; Docket No. 667 at 10-12, the Court will address all arguments raised
throughout the cross summary judgment briefing in this section of the order.
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Because the statements are not literally false, HomeAdvisor asserts that plaintiffs must
show actual consumer deception. Id. at 15; see also Docket No. 650 at 16-17.
HomeAdvisor argues, however, that plaintiffs have no evidence that any consumers
were deceived by these statements. Docket No. 668 at 15; see also Docket No. 650 at
16-17.
Plaintiffs contend that these statements are literally false because the use of the
word “screening” creates “the impression that [HomeAdvisor’s] active SPs are all
screened in contrast to its former SPs.” Docket No. 657 at 22. Plaintiffs argue that
HomeAdvisor does not screen all SPs and has no basis to imply that the former SPs are
not “screened.” Id.; see also Docket No. 667 at 10-11. In support of their argument that
Home Advisor does not screen all SPs, plaintiffs cite a declaration from Matt Zurcher,
HomeAdvisor’s Senior Vice President of Operations, where Mr. Zurcher states that
HomeAdvisor performs a background check on service provider “businesses,” which
includes the “owner/principal” of the business, but does not perform a background
check on all employees of the SP. Docket No. 657 at 5-6, ¶ 2 (quoting Docket No. 657-
6 at 3-4, ¶¶ 3, 9). Plaintiffs also cite HomeAdvisor’s T&Cs which state that
HomeAdvisor’s screening criteria does not apply to “Corporate Accounts.” Id. at 5-6, ¶ 2
& n.6 (citing Docket Nos. 657-3, 657-4, 657-5). Plaintiffs argue that HomeAdvisor is
“deceptively seeking to impress upon the customer that the person walking through their
door had been the subject of an effective and thorough background check.” Docket No.
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657 at 22. Because the statements are “literally false,” plaintiffs argue that there is a
presumption of consumer confusion. Id. at 24.26
The Court finds that the statements “Find Other Pros” and “Let’s find you the best
HomeAdvisor screened and approved professionals” are not actionable statements
under the Lanham Act because they are not statements of fact. “A factual claim is a
statement that (1) admits of being adjudged true or false in a way that (2) admits of
empirical verification. A statement that fails to meet these criteria falls outside the
Lanham Act’s purview.” Sycamore, 29 F.4th at 644 (internal quotations and citations
omitted). It is undisputed that HomeAdvisor displays a “non-member listing” for some
former SPs in HomeAdvisor’s directory, identifying the former SP as “out of network”
and providing the SP’s direct contact information. Docket No. 650 at 4, ¶¶ 13-14. The
non-member listing states “Let’s find you the best HomeAdvisor screened and approved
professionals” and includes the “Find Other Pros” link, which directs the homeowner to
submit a service request that HomeAdvisor can sell as a lead to another SP. Docket
No. 649 at 16, ¶ 3. Contrary to plaintiffs’ suggestion, the statements on the non-
26 Plaintiffs also contend that these “deceptions” were the subject of injunction
proceedings in a case brought by the District Attorney of San Francisco against
HomeAdvisor. Docket No. 667 at 10-11 & n.16 (citing People v. Homeadvisor, Inc.,
2018 Cal. Super. LEXIS 39697, at *3-4 (May 23, 2018)). Plaintiffs argue that the court
in that case entered a preliminary injunction against HomeAdvisor because
HomeAdvisor’s statements were “likely deceptive.” Id. at 11. To the extent plaintiffs
argue that the California case demonstrates that the statements on the non-member
listings are literally false under the Lanham Act, the Court rejects that argument. First,
the California case did not address the non-member listings, but rather addressed
“television, radio, and Apple App Store advertisements” issued by HomeAdvisor. See
Homeadvisor, Inc., 2018 Cal. Super. LEXIS 39697, at *3. Second, the case did not
involve a Lanham Act false advertising claim. See id. Third, the court issued a
preliminary injunction and did not make any findings of fact as to whether the
statements in the advertisements were literally false. See id.
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member listings do not state that HomeAdvisor conducts “an effective and thorough
background check” on every worker “walking through [the homeowner’s] door.” See
Docket No. 657 at 22. Rather, these statements merely invite consumers to search for
SPs who are members of HomeAdvisor. Plaintiffs have submitted no evidence
suggesting that the statements “Find Other Pros” or “Let’s find you the best
HomeAdvisor screened and approved professionals” can be adjudged “true or false” in
a way that admits of “empirical verification.” See Sycamore, 29 F.4th at 644 (concluding
that the word “local” is not an actionable statement of fact); Creager, 98 F.4th at 1012
(finding that an American flag symbol couldn’t “objectively be verified as true or false”).
Even if the statement “Find Other Pros” is an actionable statement of fact under
the Lanham Act, plaintiffs have not provided any evidence suggesting that this
statement is literally false or that it is misleading in any way. The “Find Other Pros” link
directs the homeowner to submit a service request to HomeAdvisor. Docket No. 649 at
16, ¶ 3. Plaintiffs make no argument that the link itself contains any false or misleading
information about any SPs or HomeAdvisor’s services. Accordingly, the “Find Other
Pros” statement is not actionable under the Lanham Act. See Intermountain Stroke
Ctr., Inc. v. Intermountain Health Care, Inc., 638 F. App’x 778, 793 (10th Cir. 2016)
(unpublished) (holding that defendant’s “Find a Doctor” tool on its website was not
actionable under the Lanham Act because the link merely produced “a list of physicians”
and contained no misleading information).
Moreover, the Court finds that the statement “Let’s find you the best
HomeAdvisor screened and approved professionals” is not literally false under the
Lanham Act because the statement is “ambiguous.” See Creager, 98 F.4th at 1010. It
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is undisputed that the non-member listing states “Let’s find you the best HomeAdvisor
screened and approved professionals.” Docket No. 649 at 16, ¶ 3. It is also undisputed
that HomeAdvisor conducts background screening on SPs prior to enrollment, but
HomeAdvisor does not screen corporate accounts. Docket No. 650 at 2, ¶ 2; Docket
No. 657 at 5-6, 13, ¶¶ 2, 5; Docket No. 668 at 5, ¶ 5. Plaintiffs cite evidence suggesting
that HomeAdvisor performs a background check on service provider “businesses,”
which includes the “owner/principal” of the business, but does not perform a background
check on all employees of the SP. Docket No. 657 at 5-6, ¶ 2 (quoting Docket No. 657-
6 at 3-4, ¶¶ 3, 9). The Court finds that the term “screened . . . professionals,” see
Docket No. 649 at 16, ¶ 3, is susceptible to more than one reasonable interpretation.
See Creager, 98 F.4th at 1010. A “professional” could refer to any of the SP’s
employees or contractors that would perform the home services task. With that
interpretation, the statement on the website could mean that HomeAdvisor will connect
you with a worker who has been screened by HomeAdvisor. However, when analyzing
the message “conveyed within its full context,” see Zoller, 111 F. App’x at 984, the term
“professional” could also refer to the SP as a business entity. For example, the non-
member listing for Advance, Inc. states that Advance Inc., a company, is a
“professional” that is “out of network.”
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See Docket No. 650 at 4, ¶ 14. “Screened . . . professionals” could therefore refer to
other SPs as business entities, rather than the employees of the SPs. Under that
interpretation, the statement on the website could mean that HomeAdvisor will find you
a business entity that has been screened and approved by HomeAdvisor.
“Given that ambiguity,” the Court finds that the statement cannot be literally false.
See Creager, 98 F.4th at 1010-11 (holding that an advertisement that products were
“made in the United States” could not be literally false because the term “make” could
“refer either to the origin of the components or to the assembly of the product itself”);
see also Innovation Ventures, LLC v. N.V.E., Inc., 694 F.3d 723, 736-37 (6th Cir. 2012)
(concluding that a statement could not be literally false because it was ambiguous on
whether it referred to one or multiple products); In re EpiPen, 507 F. Supp. 3d at 1370
(“The greater the degree to which a message relies upon the viewer or consumer to
integrate its components and draw the apparent conclusion, however, the less likely it is
that a finding of literal falsity will be supported.” (citation omitted)).27
27 Plaintiffs do not clearly explain how the “Let’s find you the best HomeAdvisor
screened and approved professionals” statement is literally false in light of the
undisputed fact that HomeAdvisor does not screen corporate accounts. See Docket
No. 657 at 22. For example, plaintiffs provide no evidence suggesting that the “Find
Other Pros” link even connects homeowners to corporate accounts. Plaintiffs cite no
statements of fact in the appropriate fact sections of their briefing identifying what
HomeAdvisor’s vetting or approval process for corporate accounts consists of. In one
sentence in their argument section, plaintiffs cursorily state that HomeAdvisor has 129
corporate accounts, but “those corporate accounts, which included behemoth national
companies such as Sears, employ thousands of service personnel whose backgrounds
were not checked by HA.” Docket No. 657 at 22 (citing Docket No. 657-6 at 4, ¶ 7).
However, plaintiffs’ cited evidence does not support that assertion of fact. Mr. Zurcher’s
declaration states,
All Service Pros are subject to these background check procedures with the
exception of a small number of corporate accounts. Currently, there are only 129
such corporate accounts out of approximately 189,000 Service Pros in the
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Because the statements are not literally false, plaintiffs must submit evidence of
actual consumer deception. See Vincent, 621 F. App’x at 550. Plaintiffs have provided
no consumer survey data or other evidence demonstrating that a “statistically significant
part of the commercial audience holds the false belief allegedly communicated by the
challenged advertisement.” See id.; see also Zoller, 111 F. App’x at 982. Without any
evidence that the challenged statements tend to mislead or confuse consumers,
HomeAdvisor is entitled to summary judgment on the portion of the false advertising
claim based on the statements “Find Other Pros” and “Let’s find you the best
HomeAdvisor screened and approved professionals.”
(B) 	“Please Note: This business is not a screened and
approved member of HomeAdvisor”
HomeAdvisor argues that the statement “Please Note: This business is not a
screened and approved member of HomeAdvisor,” which appeared on Ms. Haukenes’
page and other former SPs’ pages prior to October 2018, is not literally false. Docket
No. 668 at 13. HomeAdvisor argues that the statement is not literally false because it is
undisputed that, once an SP’s membership expires, the SP is no longer a HomeAdvisor
member. Id. Because HomeAdvisor states that plaintiffs have no evidence that any
HomeAdvisor network. As such, only approximately 0.0682% of listed Pros are
not background checked. Even so, HomeAdvisor’s contracts with these
corporate accounts expressly require the company to certify that it is “free from
any (i) bankruptcies, civil legal judgments within the last 3 years, and (ii) felony
criminal convictions[.]”
Docket No. 657-6 at 4, ¶ 7. Accordingly, the Court finds that plaintiffs’ “underdeveloped”
and “inadequately briefed” arguments on the corporate accounts are waived. See
Valdez v. Macdonald, 66 F.4th 796, 834 (10th Cir. 2023). The Court therefore declines
to consider whether the “Let’s find you the best HomeAdvisor screened and approved
professionals” statement is literally false in connection with the corporate accounts.
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consumers were deceived by this statement, HomeAdvisor contends that it is entitled to
summary judgment. Id. at 15; see also Docket No. 650 at 17; Docket No. 662 at 19-20.
Plaintiffs respond that the statement is literally false because HomeAdvisor has no basis
to “state or imply that the former SPs are not ‘screened.’” Docket No. 657 at 21-22; see
also Docket No. 667 at 10. Because the statement is “literally false,” plaintiffs argue
that there is a presumption of consumer confusion. Docket No. 657 at 24.
The Court finds that plaintiffs have failed to establish that this statement is
literally false. It is undisputed that Ms. Haukenes cancelled her HomeAdvisor
membership on March 14, 2017. Docket No. 650 at 5, ¶ 19; Docket No. 657 at 8, ¶ 19.
It is also undisputed that, from February 2018 to October 30, 2018, the following
message appeared on Ms. Haukenes’ profile page: “Please Note: This business is not a
screened and approved member of HomeAdvisor.” Docket No. 650 at 6, ¶ 26. That
same message appeared on the profile pages of other former SPs until October 30,
2018. Docket No. 649 at 17, ¶ 6. Plaintiffs present no evidence that former members of
HomeAdvisor are “screened and approved” after their membership ends. Regardless of
whether HomeAdvisor screened Ms. Haukenes at the time of her enrollment, there is no
evidence suggesting that Ms. Haukenes was a “screened and approved member” after
she cancelled her HomeAdvisor membership on March 14, 2017. Contrary to plaintiffs’
suggestion, the alert does not overtly state that the former SP has never been
screened. As a result, the Court finds that the statement is not literally false.28
28 Furthermore, as the Supreme Court has repeatedly emphasized, “[a]djectives
modify nouns—they pick out a subset of a category that possesses a certain quality.”
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. 9, 19-20 (2018) (noting that a
“critical habitat” is a subset of “habitat”); see also Rimini St., Inc. v. Oracle USA, Inc.,
586 U.S. 334, 341 (2019). In this alert, the words “screened and approved” modify the
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Because the statement is not literally false, plaintiffs must submit evidence of
actual consumer deception. See Vincent, 621 F. App’x at 550. Plaintiffs have provided
no consumer survey data or other evidence demonstrating that a “statistically significant
part of the commercial audience holds the false belief allegedly communicated by the
challenged advertisement.” See id.; see also Zoller, 111 F. App’x at 982.29 Without any
evidence that the challenged statement tends to mislead or confuse consumers,
HomeAdvisor is entitled to summary judgment on the portion of the false advertising
claim based on the statement “Please Note: This business is not a screened and
approved member of HomeAdvisor.”
(C) 	“[SP business name] does not provide service to
[zip code]”
HomeAdvisor claims that plaintiffs cannot establish that the zip code alert
constitutes “commercial advertising” under the Lanham Act. Docket No. 662 at 20-22;
noun “member of HomeAdvisor.” See Docket No. 650 at 6, ¶ 26. Plaintiffs have failed
to show how this statement is literally false when Ms. Haukenes and other former SPs
were not members of HomeAdvisor when the alert appeared on their pages. If Ms.
Haukenes was not a “member” of HomeAdvisor at this time, then she could not have
been a “screened and approved member.” See Weyerhaeuser Co., 586 U.S. at 21 n.2
(holding that an “area is eligible for designation as critical habitat . . . only if it is
habitat”). HomeAdvisor’s statement can reasonably be interpreted as simply informing
the consumer that the former SP is not a current screened and approved member of
HomeAdvisor, which is true. See Zoller, 111 F. App’x at 984 (finding that there was
more than one reasonable interpretation of the “Compare to Ingredients” statement on a
product because the statement can “reasonably be read as simply informing the
consumer that the two products have similar ingredients, which is true”).
29 Plaintiffs do not clearly address the actual consumer deception prong.
Plaintiffs’ theory seems to argue that, if a consumer believes that a former SP has never
been screened, then the consumer will decide to submit a service request for a different
screened member of HomeAdvisor. See Docket No. 657 at 3, 22, 24. However,
plaintiffs present no evidence that a statistically significant part of the commercial
audience believes that the alert conveys the message that the former SP has never
been screened.
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Docket No. 668 at 14. HomeAdvisor argues that there is no evidence that the zip code
statement was “disseminated sufficiently to the relevant purchasing public to constitute
‘advertising’ or ‘promotion’ within that industry.” Docket No. 662 at 20 (quoting Strauss,
951 F.3d at 1267). HomeAdvisor states that plaintiffs have identified no evidence
suggesting that any consumer actually saw the zip code error on the McHenrys’ profile
or the profiles of other SPs. Id. at 21.30
As noted previously, to establish that a factual representation is “commercial
advertising or promotion” under the Lanham Act, the representation must be
“disseminated sufficiently to the relevant purchasing public to constitute ‘advertising’ or
‘promotion’ within that industry.” Strauss, 951 F.3d at 1267 (citation omitted). Tenth
Circuit precedent makes it clear that “to constitute an actionable advertising or
promotional campaign, a dissemination of information must reach some numerically-
significant quantity of actual or potential customers of the parties’ products.” Warming
Trends, 2023 WL 2716652, at *14 (quoting General Steel Domestic Sales, LLC v.
Chumley, 129 F. Supp. 3d 1158, 1175 (D. Colo. 2015) (citing Sports Unlimited, Inc. v.
Lankford Enterprises, Inc., 275 F.3d 996, 1003-04 (10th Cir. 2002)).
Here, it is undisputed that, from July 6, 2017 to October 30, 2018, if a consumer
clicked the “Get a Quote” button on the McHenrys’ online member profile page and
entered the zip code “80021” in the contact form, the following statement would appear,
among others: “B&B Carpentry does not provide service to 80021.” Docket No. 650 at
6, ¶ 24. However, there is no evidence in the record that any consumer saw the alert
30 Plaintiffs do not directly address this argument in the briefing on the cross-
summary judgment motions.
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– “[SP business name] does not provide service to [zip code]” – on the McHenrys’
profile page or on the profile page of any other former SP. Docket No. 662 at 7, ¶ 18.
The Court therefore finds that plaintiffs have failed to establish that the zip code alert
reached a “numerically-significant quantity of actual or potential customers.” See
Warming Trends, 2023 WL 2716652, at *14 (granting summary judgment because
plaintiff presented no evidence that “any potential customer saw the specific pages on
the website” that contained the false statement); see also Chumley, 129 F. Supp. 3d at
1175 (granting summary judgment where the record was “vague” as to the number of
customers who encountered the alleged false statements on a website); Wilson v.
AdvisorLaw LLC, No. 17-cv-1525-MSK, 2018 WL 4932088, at *4 (D. Colo. Oct. 11,
2018), aff’d, 780 F. App’x 649 (10th Cir. 2019) (granting summary judgment where
plaintiff failed to provide any evidence that potential customers actually saw the false
statement on the “heavily-trafficked” website). Because plaintiffs have failed to
establish an inference that the zip code alert was “advertising,” an essential element of
the Lanham Act claim, the Court finds that HomeAdvisor is entitled to summary
judgment on this statement.31
ii. 	Fifth Element
Even if plaintiffs had established a dispute of fact on the first element of their
false advertising claim, the Court finds that plaintiffs have failed to provide any evidence
31 HomeAdvisor also argues that the zip code alert cannot support a false
advertising claim because the statement is not literally false and plaintiffs have
submitted no evidence of consumer confusion. Docket No. 668 at 14-15; Docket No.
662 at 20. Because the Court found that the zip code alert did not constitute
“advertising” under the Lanham Act, the Court declines to reach these additional
arguments.
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to prove the fifth element. To establish the fifth element, plaintiffs must show that they
have “been or [are] likely to be injured as a result of the misrepresentation, either by
direct diversion of sales or by a lessening of goodwill associated with [their] products.”
Sycamore, 29 F.4th at 643-44; see also Am. Soc’y of Home Inspectors, Inc. v. Int’l
Ass’n of Certified Home Inspectors, 36 F.4th 1238, 1242 (10th Cir. 2022) (noting that a
plaintiff must prove “an injury to a commercial interest in sales or business reputation
proximately caused by the defendant’s misrepresentations”).
HomeAdvisor argues that plaintiffs have no evidence that the statements harmed
their reputations or diverted business away from them. Docket No. 650 at 26-27; see
also Docket No. 668 at 15. Plaintiffs respond that they have suffered harm from the
“literally false statements” because HomeAdvisor’s actions have caused “a loss of
customers” and “loss of goodwill.” Docket No. 657 at 25-26. However, plaintiffs did not
cite any facts suggesting that class members have experienced a diversion of sales or
diminished goodwill from the following statements: “Let’s find you the best HomeAdvisor
screened and approved professionals;” “Find Other Pros;” “Please Note: This business
is not a screened and approved member of HomeAdvisor;” and “[SP business name]
does not provide service to [zip code].”32
32 In response to one of HomeAdvisor’s statements of undisputed fact, plaintiffs
broadly argue that their “evidence includes voluntarily submitted narratives from former
SPs confirming being uniformly victimized by HA and HA’s use of their Content.”
Docket No. 657 at 11, ¶¶ 52-53 (citing Docket Nos. 657-11, 657-12, 657-13, 657-14,
and 657-15). However, for the reasons discussed previously, the Court declines to
consider the web forms at the summary judgment stage because the web forms are
inadmissible hearsay. Nevertheless, even if the Court considered the web forms, none
of the cited evidence describes any harm specifically from the four statements on
HomeAdvisor’s website. See Docket No. 657-1 at 11, ¶¶ 23, 25; Docket No. 657-11 at
2-4, 6-14, 16-20, 22-25, 27-30, 32-35; Docket No. 657-12 at 2-18; Docket No. 657-13 at
2-11, 13-64; Docket No. 657-14 at 2-10, 12-15, 17-28; Docket No. 657-15 at 2-26, 28-
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Because plaintiffs have failed to identify any injury from the four statements, the
Court finds that HomeAdvisor is entitled to summary judgment on the Lanham Act false
advertising claim. See Am. Soc’y of Home Inspectors, Inc., 36 F.4th at 1244 (affirming
grant of summary judgment where non-movant failed to provide any evidence that it
was harmed from the movant’s tagline, which was on its “website for nearly five
years”).33 The Court grants this portion of HomeAdvisor’s motion and dismisses with
prejudice the Lanham Act false advertising claim of the Nationwide Misappropriation
Class.
29. One individual states that the message “let[’]s find you a best home advisor
screened and approved” professional on HomeAdvisor’s website is “not good for my
business” and that it “seem[s] like they are take it [sic] my potential customers.” Docket
No. 657-15 at 12. This statement is too speculative to demonstrate an injury under the
Lanham Act. See Warming Trends, 2023 WL 2716652, at *14 (finding that a company
manager’s testimony that, “I believe that we have lost sales” was too speculative
because she could not identify any specific sales that the company lost).
33 Regarding the harm element, plaintiffs alternatively argue that HomeAdvisor
“hinders, refuses to acknowledge, and disregards SPs’ requests to terminate and to
remove their Content from HA’s website.” Docket No. 657 at 26. Plaintiffs contend that
HomeAdvisor “incorrectly asserts a contractual right to use former SPs’ Content”
through the T&C’s licensing provision. Id. The Court finds that these arguments are
irrelevant to whether plaintiffs have suffered any injury from the four allegedly
misleading statements on HomeAdvisor’s website. See Am. Soc’y of Home Inspectors,
Inc., 36 F.4th at 1242 (noting that a plaintiff must prove “an injury to a commercial
interest in sales or business reputation proximately caused by the defendant’s
misrepresentations”) (emphasis added). Whether HomeAdvisor has refused to remove
SPs’ information from its website does not, standing alone, establish that class
members have suffered a decrease in sales or harm to their business reputations from
the four statements. Likewise, whether HomeAdvisor claims to have a contractual right
to the SPs’ content through the T&Cs does not, standing alone, establish that class
members have suffered a decrease in sales or harm to their business reputations from
the four statements.
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b. False Association Claim
False association claims under the Lanham Act allege the misuse of a
trademark. Crocs, 2021 WL 4170997, at *3. A false association claim requires proof
“(1) that the plaintiff has a protectable interest in the mark; (2) that the defendant has
used an identical or similar mark in commerce; and (3) that the defendant’s use is likely
to confuse customers.” Underwood v. Bank of Am. Corp., 996 F.3d 1038, 1052 (10th
Cir. 2021) (quoting 1-800 Contacts, Inc. v. Lens.com, Inc., 722 F.3d 1229, 1238 (10th
Cir. 2013)).
Confusion under the Lanham Act “is not limited to confusion of consumers as to
the source of the goods, but also includes confusion as to sponsorship or affiliation.”
Alfwear, Inc. v. Mast-Jaegermeister US, Inc., 2023 WL 5765891, at *5 (10th Cir. Sept. 7,
2023) (citation omitted). In evaluating whether there is a likelihood of confusion, a court
should consider the following non-exhaustive factors (the “King factors”):
(a) the degree of similarity between the marks; (b) the intent of the alleged
infringer in adopting its mark; (c) evidence of actual confusion; (d) the relation in
use and the manner of marketing between the goods or services marketed by the
competing parties; (e) the degree of care likely to be exercised by purchasers;
and (f) the strength or weakness of the marks.
1-800 Contacts, 722 F.3d at 1239 (quoting King of the Mountain Sports, Inc. v. Chrysler
Corp., 185 F.3d 1084, 1089-90 (10th Cir. 1999)). “The importance of any particular
factor in a specific case can depend on a variety of circumstances, including the force of
another factor.” Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013).
Plaintiffs bear “the burden of proving likelihood of confusion.” Utah Lighthouse Ministry
v. Found. for Apologetic Info. & Rsch., 527 F.3d 1045, 1055 (10th Cir. 2008).
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HomeAdvisor argues that plaintiffs have no evidence that HomeAdvisor’s use of
the online profiles was likely to cause consumer confusion. Docket No. 650 at 17-18.
HomeAdvisor contends that all six King factors weigh in favor of HomeAdvisor. Id. at
18-24. In their response, plaintiffs do not address HomeAdvisor’s arguments or directly
discuss their false association claim. Rather, the response focuses entirely on plaintiffs’
false advertising claim. See Docket No. 657 at 21-25.34 A plaintiff’s failure to address a
claim in a response to a motion for summary judgment is proper grounds to grant
summary judgment in the defendant’s favor. See Hinsdale v. City of Liberal, Kan., 19 F.
App’x 749, 768-69 (10th Cir. 2001) (unpublished) (affirming district court’s holding that
plaintiff abandoned his equal protection claim by failing to address the claim in his
response to the summary judgment motion). Because plaintiffs have abandoned their
Lanham Act false association claim, the Court finds that HomeAdvisor is entitled to
summary judgment on this claim.35
34 With no citation to any authority, plaintiffs state in a footnote that, “[b]ecause
HA’s statements are literally false and confusion is presumed, Defendants’ reliance on
the six-factor test” in King is “inapplicable.” Docket No. 657 at 24 n.16. The Court
rejects this argument. The Lanham Act “creates two distinct bases of liability: false
association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B).” Lexmark Int’l, Inc.,
572 U.S. at 122. “The two claims are separate and distinct and have different elements
needed to assert a prima facie case.” 4 McCarthy on Trademarks and Unfair
Competition § 27:9 (5th ed. May 2024). The Tenth Circuit has identified the six King
factors as relevant to whether a likelihood of confusion exists for a false association
claim. See 1-800 Contacts, 722 F.3d at 1239.
35 Plaintiffs’ own summary judgment motion provides further evidence that they
have abandoned their false association claim. See Docket No. 649. Although plaintiffs
state that they move for summary judgment on all claims of the misappropriation
classes, see id. at 1, plaintiffs only discuss the legal standard for a false advertising
claim under the Lanham Act, not a false association claim under the Lanham Act. See
id. at 24-25.
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Even if plaintiffs had not abandoned the claim, the Court would find that the
majority of the King factors weigh in HomeAdvisor’s favor. The Court notes that
plaintiffs’ failure to discuss their false association claim makes it very difficult for the
Court to evaluate the six King factors. Nevertheless, the Court will endeavor to consider
each factor despite plaintiffs’ lack of explanation.36
i. 	Similarity of the Marks
Courts analyze similarity of the marks on three levels: “sight, sound, and
meaning.” Alfwear, Inc., 2023 WL 5765891, at *6 (quoting King of the Mountain Sports,
Inc., 185 F.3d at 1090). In comparing marks, courts should consider “the marks as a
whole as they are encountered by consumers in the marketplace.” Id. (quoting Water
Pik, Inc., 726 F.3d at 1155). Courts should not focus “solely on name similarity,” but
should also “consider the effect of marketplace presentation,” including design, lettering
styles, logos, and coloring schemes. Elevate Fed. Credit Union v. Elevations Credit
Union, 67 F.4th 1058, 1077 (10th Cir. 2023) (citations omitted). “[E]ven if two marks are
identical, if they are encountered in different contexts in the real-world marketplace,
then the consumer can often easily distinguish between the two products associated
with the marks, and any degree of similarity between the marks amounts to very little in
terms of confusion.” Alfwear, Inc., 2023 WL 5765891, at *6 (citing Nautilus Grp., Inc. v.
36 HomeAdvisor’s motion construes the false association claim as challenging
both the online member profiles and the non-member listings. Docket No. 650 at 23.
The amended complaint states that the false association claim challenges
HomeAdvisor’s use of “Online Profile Pages” and the “Online Directory.” Docket No.
449 at 283, ¶ 974. The Court agrees that plaintiffs’ claim challenges both the online
member profiles and the non-member listings. To the extent that this claim challenges
any other conduct, plaintiffs have waived those arguments by failing to discuss the false
association claim in their response. See Hinsdale, 19 F. App’x at 768-69.
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ICON Health & Fitness, Inc., 372 F.3d 1330, 1345 (Fed. Cir. 2004)). Additionally, the
“consistent appearance of a possibly infringing mark alongside a ‘house mark’ or trade
name can itself make confusion less likely.” Id. at *7 (collecting cases).
HomeAdvisor argues that the member profiles and non-member listings in
HomeAdvisor’s directory are not similar to plaintiffs’ marks when considering the
surrounding context because all the pages appear in HomeAdvisor’s directory. Docket
No. 650 at 23-24. HomeAdvisor argues that both types of online pages “prominently
display HA’s own marks” and the non-member listings contain explicit disclaimers that
former SPs are not members of HomeAdvisor. Id. at 24.
The Court finds that the first factor is neutral. Assuming that plaintiffs’
trademarks are their business names or logos,37 it is undisputed that the online member
profiles and the non-member listings display plaintiffs’ business names. See id. at 3-4,
¶¶ 6-7, 14. However, plaintiffs have presented no evidence suggesting that
HomeAdvisor’s use of the marks is similar to plaintiffs’ use in design, lettering styles,
logos, or coloring schemes. See Elevate Fed. Credit Union, 67 F.4th at 1077; see also
Alfwear, Inc., 2023 WL 5765891, at *6 (noting that courts cannot focus solely on “name
similarity”). As a result, the Court finds that the similarity factor is neutral.
ii. 	Intent
The second factor focuses on “whether defendant had the intent to derive benefit
from the reputation or goodwill of plaintiff.” King of the Mountain Sports, Inc., 185 F.3d
at 1091. “[M]ere knowledge” of a similar mark is not sufficient to establish intent. See
37 Neither party directly addresses what words or symbols constitute plaintiffs’
trademarks.
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Elevate Fed. Credit Union, 67 F.4th at 1080 (citation omitted). HomeAdvisor argues
that the undisputed evidence establishes that HomeAdvisor had no intent to confuse
consumers. Docket No. 650 at 20. HomeAdvisor asserts that it maintains the online
member profiles after SPs cancel their leads to “honor the one-year memberships that
SPs pay for upfront.” Id. HomeAdvisor argues that it removes online member profiles
when SPs request the removal of their profiles. Id. Moreover, HomeAdvisor contends
that any service requests generated by online member profiles are sent directly to the
SPs at no charge. Id.
The Court finds that the intent factor weighs in favor of plaintiffs. It is undisputed
that HomeAdvisor may continue to display a “non-member listing” for former SPs in
HomeAdvisor’s directory, which identifies the former SP as “out of network,” and
includes the SP’s business name, direct contact information, and reviews. Id. at 4,
¶¶ 13-14. It is also undisputed that the non-member listing states “Let’s find you the
best HomeAdvisor screened and approved professionals,” and includes a “Find Other
Pros” link which directs the homeowner to submit a service request that HomeAdvisor
can sell as a lead to another SP. Docket No. 649 at 16, ¶ 3. Viewed in the light most
favorable to plaintiffs, this evidence shows that HomeAdvisor intended to capitalize on
the class members’ reputations or goodwill. See Longoria v. Million Dollar Corp., No.
18-cv-02266-PAB-NYW, 2021 WL 1210314, at *4 (D. Colo. Mar. 31, 2021) (holding that
there was an inference that defendant intended to capitalize on plaintiffs’ goodwill by
using images of plaintiffs on defendant’s social media platforms because defendant was
aware that “plaintiffs were not dancers at its club”). Accordingly, the second factor
weighs in favor of plaintiffs.
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iii. 	Actual Confusion
“[A]ctual confusion in the marketplace is often considered the best evidence of
likelihood of confusion.” Water Pik, Inc., 726 F.3d at 1144 (quoting King of the Mountain
Sports, Inc., 185 F.3d at 1092); see also Utah Lighthouse Ministry, 527 F.3d at 1055.
“Evidence of actual confusion is often introduced through the use of surveys.” Water
Pik, Inc., 726 F.3d at 1144 (citation omitted). The Tenth Circuit has “consistently
recognized” that “isolated, anecdotal instances of actual confusion may be de minimis
and may be disregarded in the confusion analysis.” Id. at 1150. HomeAdvisor states
that plaintiffs have produced no evidence of actual confusion. Docket No. 650 at 18-19.
The Court finds that the third factor weighs heavily in favor of HomeAdvisor. It is
undisputed that plaintiffs did not submit any consumer surveys identifying evidence of
actual confusion arising from the display of their information on HomeAdvisor’s website.
Docket No. 650 at 10, ¶ 52. Plaintiffs’ response to paragraph 52 indicates that the web
forms identify “confusion from HA’s maintaining SPs’ Content on HA’s website.” Docket
No. 657 at 11, ¶ 52 (citing Docket No. 657-11 at 9, 18-19, 27, 29-30; Docket No. 657-12
at 2-3, 9, 13; Docket No. 657-13 at 8, 18-19, 24, 28, 31, 47, 50; Docket No. 657-14 at 6,
10, 20; Docket No. 657-15 at 21, 24-25, 29). However, for the reasons discussed
previously, the Court declines to consider the web forms at the summary judgment
stage because the web forms are inadmissible hearsay. Nevertheless, even if the Court
considered this evidence, the cited web forms only touch on actual consumer confusion
three times. See Docket No. 657-11 at 18 (HomeAdvisor “cost me at least $62,500 by
redirecting my potential customers to their websites/phone numbers when they were
looking directly for my company and clicked on the HomeAdvisor link that claimed to be
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my company”); Docket No. 657-12 at 9 (“Many old clients expressed that they tried to
reach us to only inadvertently contact home advisor.”); Docket No. 657-15 at 21 (“I’ve
had a couple customer’s [sic] that stated if I worked for HomeAdvisor when they
searched for my company on Google.”).38 The Court finds that the three instances cited
by plaintiffs are “isolated episodes with minimal probative value on whether reasonable
consumers as a whole are actually confused by” the non-member listings. See Water
Pik, Inc., 726 F.3d at 1151 (disregarding four anecdotal instances of actual confusion as
de minimis); King of the Mountain Sports, Inc., 185 F.3d at 1092 (finding that “seven
examples of actual confusion” was “de minimis and does not support a finding of a
genuine issue of material fact as to the likelihood of confusion”).
Accordingly, because there is de minimis evidence of any actual consumer
confusion, the Court finds that the third factor weighs “strongly” in favor of
HomeAdvisor. See Water Pik, Inc., 726 F.3d at 1151; see also Longoria, 2021 WL
1210314, at *4 (finding that the third factor weighed in favor of defendant because
plaintiffs “failed to provide any evidence of actual confusion”).
iv. 	Similarity of Products and Marketing
The fourth factor considers the “similarity of products” as well as the “similarity in
the manner of marketing the products.” Elevate Fed. Credit Union, 67 F.4th at 1081
(citation omitted). When products are distinct and the parties “use separate marketing
channels,” confusion is “highly unlikely.” Alfwear, Inc., 2023 WL 5765891, at *11. In
38 Even if the web forms are admissible, the Court notes that the statements in
two of the web forms contain inadmissible double hearsay. See Docket No. 657-12 at
9; Docket No. 657-15 at 21; see also Argo, 452 F.3d at 1199 (“at summary judgment[,]
courts should disregard inadmissible hearsay statements contained in affidavits, as
those statements could not be presented at trial in any form”).
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evaluating the marketing, courts consider whether the parties operate in “distinctly
different markets” and whether they contact “very different people in their marketing
efforts.” Elevate Fed. Credit Union, 67 F.4th at 1081 (citation omitted). HomeAdvisor
argues that the fourth factor weighs in its favor because the parties perform different
services: plaintiffs offer specific home services to consumers, while HomeAdvisor “acts
as a conduit between homeowners and service providers.” Docket No. 650 at 22.39
The Court finds that this factor weighs in favor of HomeAdvisor. It is undisputed
that the parties do not sell the same services. The class representatives offer or offered
a variety of home services for consumers. Id. at 5, ¶¶ 16, 18, 20. In contrast,
HomeAdvisor sells annual memberships to SPs, which include an online member profile
and access to a pay-per-lead marketing service. Id. at 2, ¶ 1. SPs advertise their
services through the online member profiles in HomeAdvisor’s directory. Id. at 2-3,
¶¶ 5-7. Accordingly, the Court finds that the fourth factor weighs in favor of
HomeAdvisor. See M. Welles & Assocs., Inc. v. Edwell, Inc., 69 F.4th 723, 731 (10th
Cir. 2023) (upholding district court’s conclusion that there was no likelihood of confusion
because the parties have “fundamentally different customers seeking fundamentally
different kinds of services”).
39 HomeAdvisor also argues that it “markets nationally in almost every media
category, while Plaintiffs conducted minimal advertising, and solely in the localities in
which they operated.” Docket No. 650 at 22-23 & n.16. Moreover, HomeAdvisor
argues that “Plaintiffs’ undisputed testimony also shows that they relied primarily on
word of mouth, not the internet, to advertise their services.” Id. at 23 & n.17 (citing
Docket No. 650-7 at 5, 9, 52:21-53:5, 68:3-15; Docket No. 650-8 at 5, 8-9, 11, 31:6-13,
55:6-10, 61:19-25, 67:25-68:7; Docket No. 650-11 at 4-5, 33:22-35:5). HomeAdvisor
did not raise these facts in its statement of undisputed material facts section.
Accordingly, the Court declines to consider this evidence for the reasons discussed
previously.
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v. 	Degree of Care Exercised by Purchasers
“If consumers are likely to exercise a high degree of care in deciding whose
product to buy, the likelihood of confusion is reduced.” Water Pik, Inc., 726 F.3d at
1160. “A consumer’s care generally intensifies with the importance of the product.”
Elevate Fed. Credit Union, 67 F.4th at 1072. When analyzing the level of care, courts
should focus on “the time of purchase.” Id. (citation omitted). Buyers “typically exercise
little care in the selection of inexpensive items that may be purchased on impulse,”
whereas, they typically choose “expensive items” carefully. Sally Beauty Co., Inc. v.
Beautyco, Inc., 304 F.3d 964, 975 (10th Cir. 2002) (citation omitted). In analyzing the
degree of care a consumer is likely to exercise in selecting a product, courts may
consider “the time and energy expended researching which product to choose.” Edwell,
69 F.4th at 731.
HomeAdvisor’s argument on the fifth element is not entirely clear. HomeAdvisor
appears to argue that the undisputed evidence demonstrates that customers will
exercise a high degree of care while browsing the various profiles on HomeAdvisor’s
website. See Docket No. 650 at 21. With no citation to any evidence in the record,
HomeAdvisor maintains that a “homeowner’s decision to provide personal contact
information, and invite a stranger into his or her home to perform work, indisputably is a
high-involvement activity for which a reasonable consumer exercises significant caution
and affords attention.” Id.40
40 HomeAdvisor also argues that plaintiffs’ services are “expensive, ranging from
$300-$200,000.” Docket No. 650 at 21 & n.14 (citing Docket No. 650-6 at 9, 17,
106:13-107:17, 364:18-365:3; Docket No. 650-8 at 7, 47:12-20; Docket No. 650-11 at
10, 104:19-23). HomeAdvisor did not raise this fact in its statement of undisputed
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The Court finds that the fifth factor is neutral. Neither party has presented any
evidence regarding the level of care that customers utilize on HomeAdvisor’s website.41
It is undisputed that the non-member listing contains the former SP’s business name,
direct contact information, and reviews. Id. at 4, ¶ 14. The non-member listing states
“Let’s find you the best HomeAdvisor screened and approved professionals,” and
includes a “Find Other Pros” link which directs the homeowner to submit a service
request that HomeAdvisor can then sell as a lead to another SP. Docket No. 649 at 16,
¶ 3. However, there is no evidence in the record discussing how much “time and
energy” a homeowner expends in deciding whether to contact the former SP or click the
“Find Other Pros” link. See Edwell, 69 F.4th at 731. Therefore, the Court finds that the
fifth factor is neutral. See Longoria, 2021 WL 1210314, at *5 (finding that the fifth factor
was neutral where there was “no evidence regarding the level of care that defendant’s
customers exhibit”); see also King of the Mountain Sports, Inc., 185 F.3d at 1092 (noting
that the “degree of care” factor may have “little impact” on the likelihood of confusion
analysis in some factual scenarios).
material facts section. Accordingly, the Court declines to consider this evidence for the
reasons discussed previously.
41 Due to the parties’ inadequate discussion of this factor, the Court struggles to
grasp how a customer’s purported level of care navigating HomeAdvisor’s website
would be probative to the overall likelihood of confusion element. Because plaintiffs’
theory appears to be that HomeAdvisor’s “scheme” diverts consumers from the former
SPs’ pages to current SPs, see Docket No. 657 at 3, the Court assumes that plaintiffs
would argue that a consumer will exercise little care in deciding whether to click the
“Find Other Pros” link on a former SP’s non-member listing. In contrast, it appears that
HomeAdvisor’s theory is that the consumer will not be easily diverted to another SP’s
profile page. See Docket No. 650 at 21.
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vi. 	Strength of Plaintiffs’ Marks
The final factor in determining likelihood of confusion is the strength of the mark
because “[t]he stronger the mark, the greater the likelihood that encroachment on the
mark will cause confusion.” Utah Lighthouse Ministry, 527 F.3d at 1056. “Strength has
two aspects: conceptual strength, or the mark’s place on the spectrum of
distinctiveness, and commercial strength, or its level of recognition in the marketplace.”
Water Pik, Inc., 726 F.3d at 1151. HomeAdvisor argues that plaintiffs have no evidence
of the strength of their marks. Docket No. 650 at 21-22. HomeAdvisor contends that
there is no evidence that plaintiffs’ marks were “recognized in the marketplace” or that
plaintiffs’ names or information are inherently distinctive. Id. at 22.42
Plaintiffs have offered no evidence or argument suggesting that their marks were
distinctive or had significant recognition value in the marketplace. Accordingly, the
Court finds that the final factor weighs in favor of HomeAdvisor. See Utah Lighthouse
Ministry, 527 F.3d at 1056 (upholding district court’s conclusion that the final factor
weighed against finding a likelihood of confusion because plaintiff “did not submit any
evidence to the district court of conceptual strength” and plaintiff’s search engine
evidence “did not demonstrate that the mark had significant recognition value in the
marketplace”).
42 HomeAdvisor also argues that plaintiffs “testified they ran small businesses,
conducted little marketing, and generated a relatively low volume of sales.” Docket No.
650 at 22 & n.15 (citing Docket No. 650-3 at 12, 74:5-17; Docket No. 650-6 at 7, 59:18-
60:3; Docket No. 650-7 at 7, 60:13-17; Docket No. 650-8 at 10, 62:6-22; Docket No.
650-11 at 5, 34:4). HomeAdvisor did not raise this fact in its statement of undisputed
material facts section. Accordingly, the Court declines to consider this evidence for the
reasons discussed previously.
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In summation, the first and fifth factors are neutral; the second factor weighs in
favor of plaintiffs; and the third, fourth, and sixth factors weigh in favor of HomeAdvisor.
Particularly, there is no evidence of actual confusion, which is the “best evidence of
likelihood of confusion.” See Water Pik, Inc., 726 F.3d at 1144. As a result, the Court
finds that there is no likelihood of confusion and HomeAdvisor is entitled to summary
judgment on this claim. See Longoria, 2021 WL 1210314, at *6 (granting summary
judgment on Lanham Act false association claim where three of the King factors
weighed in favor of plaintiffs, but the other three factors, including evidence of actual
confusion, weighed in favor of defendant).43 The Court therefore grants this portion of
HomeAdvisor’s motion and dismisses with prejudice the Lanham Act false association
claim of the Nationwide Misappropriation Class.
3. 	Claims under Florida Law
The Florida Misappropriation Class asserts two claims against HomeAdvisor: (a)
violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat.
§ 501.201, et seq.; and (b) unfair competition under Florida common law. Docket No.
449 at 293-95, ¶¶ 1015-1027. The Florida state law claims are based on the same
allegations as the Lanham Act claims. See id. at 293-94, ¶¶ 1017, 1022.44 To establish
43 HomeAdvisor alternatively argues that, if the Court finds a dispute of fact on
the likelihood of confusion element, it is entitled to summary judgment on plaintiffs’ false
association claim under the “fair use doctrine.” Docket No. 650 at 24-26. HomeAdvisor
also argues that the false association claim fails because there is no evidence of
proximate harm. Id. at 26-27. Because the Court found that there is no dispute on the
likelihood of confusion element of the false association claim, the Court declines to
reach these alternative arguments.
44 For example, both claims allege that HomeAdvisor has “unfairly” competed
with the Florida class members by “creating the impression” among relevant consumers
that “the goods or services offered by [HomeAdvisor] are endorsed by, licensed by,
sponsored by, originated with, and/or otherwise affiliated with” the class members.
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a claim under FDUTPA, a plaintiff must prove “(1) a deceptive act or unfair trade
practice; (2) causation; and (3) actual damages.” Dolphin LLC v. WCI Communities,
Inc., 715 F.3d 1243, 1250 (11th Cir. 2013) (citing Rollins, Inc. v. Butland, 951 So.2d
860, 869 (Fla. App. 2006)). To establish a claim for unfair competition under Florida
law, a plaintiff must prove “(1) deceptive or fraudulent conduct of a competitor and (2)
likelihood of consumer confusion.” Matonis v. Care Holdings Grp., L.L.C., 423 F. Supp.
3d 1304, 1311-12 (S.D. Fla. 2019) (citation omitted).
HomeAdvisor argues that plaintiffs’ Florida state law claims “rise and fall with
their Lanham Act claims.” Docket No. 650 at 27-28 (citing Crystal Ent. & Filmworks, Inc.
v. Jurado, 643 F.3d 1313, 1323 (11th Cir. 2011)). HomeAdvisor contends that there is
no evidence of a likelihood of confusion and no evidence of harm. Id. at 28. Plaintiffs
respond that the Court should deny this portion of HomeAdvisor’s motion because
HomeAdvisor is not entitled to judgment on the Lanham Act claims. Docket No. 657 at
26-27.
Under Florida law, the legal analysis for a FDUTPA claim and an unfair
competition claim are the same as the legal analysis for Lanham Act claims. See, e.g.,
Suntree Techs., Inc. v. Ecosense Int’l, Inc., 693 F.3d 1338, 1345 (11th Cir. 2012)
(affirming district court’s conclusion that the “legal analysis is the same for” violations of
the “Lanham Act, [FDUTPA], and Florida state common law for infringement and unfair
competition”); Jurado, 643 F.3d at 1323 (holding that “the legal standards we apply to [a
FDUTPA claim] are the same as those we have applied under section 43(a) of the
Docket No. 449 at 293-95, ¶¶ 1019(a), 1024. The FDUTPA claim further alleges that
HomeAdvisor has made “false and misleading statements” about the class members’
businesses. Id. at 294, ¶ 1019(c).
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Lanham Act”); Custom Mfg. & Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 652
(11th Cir. 2007) (“Plaintiff’s failure to establish a likelihood of confusion as to its Lanham
Act claim also extinguishes its [FDUTPA] claim under Florida law.”); Planetary Motion,
Inc. v. Techsplosion, Inc., 261 F.3d 1188, 1193 n.4 (11th Cir. 2001) (noting that courts
may use an analysis of Lanham Act claims as a “measuring stick in evaluating the
merits of state law claims of unfair competition”) (internal quotations and citation
omitted)); Fla. Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc., 830 F.3d 1242, 1267
(11th Cir. 2016) (noting that Florida unfair competition claims “rise or fall with” federal
Lanham Act claims); Casa Dimitri Corp. v. Invicta Watch Co. of Am., Inc., 270 F. Supp.
3d 1340, 1362 (S.D. Fla. 2017) (finding that FDUTPA claims and unfair competition
claims under Florida law “are sufficiently similar to Lanham Act claims such that the
legal analysis for Lanham Act claims applies to those state law claims”).
Because the Court granted summary judgment on the Lanham Act claims, the
Court finds that HomeAdvisor is entitled to summary judgment on the Florida state law
claims. See Casa Dimitri Corp., 270 F. Supp. 3d at 1362 (granting summary judgment
on Florida unfair competition and FDUTPA claims because the court “already granted
summary judgment as to liability on the Lanham Act infringement claims”). The Court
therefore grants this portion of the motion and dismisses with prejudice the unfair
competition and FDUTPA claims of the Florida Misappropriation Class.
4. 	Claims under Colorado Law
The Colorado Misappropriation Class asserts two claims against HomeAdvisor:
(a) unfair competition under Colorado common law; and (b) violation of the Colorado
Consumer Protection Act (“CCPA”), Colo. Rev. Stat. § 6-1-101, et seq. Docket No. 449
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at 288-292, ¶¶ 997-1014. The Colorado state law claims are based on the same
allegations as the Lanham Act claims. See id. at 288, 291, ¶¶ 998, 1009.45
a. 	Colorado Unfair Competition Claim
Under Colorado law, the tort of unfair competition requires proof that (1) “the
defendant has copied the plaintiff’s products or services or misappropriated plaintiff’s
name or operations in some regard” and (2) “this conduct is likely to deceive or confuse
the public because of the difficulties in distinguishing between the plaintiff’s and
defendant’s products and services.” Warming Trends, 2023 WL 2716652, at *17
(quoting Wells Fargo Insurance Servs. USA, Inc. v. McQuate, 276 F. Supp. 3d 1089,
1117 (D. Colo. 2016)).
HomeAdvisor argues that plaintiffs cannot establish a likelihood of confusion for
the Colorado unfair competition claim for the same reasons as the Lanham Act claims.
Docket No. 650 at 28. Plaintiffs respond that, for the same reasons discussed with
respect to the Lanham Act claims, they have provided “proof demonstrating a likelihood
of confusion.” Docket No. 657 at 27. Because the Court previously found that there
was no likelihood of confusion from HomeAdvisor’s use of plaintiffs’ marks on its
website, the Court finds that HomeAdvisor is entitled to summary judgment on the unfair
competition claim under Colorado law. See Mionix, LLC v. ACS Tech., No. 16-cv-
45 For example, both claims allege that HomeAdvisor has “unfairly” competed
with the Colorado class members by “creating the impression” among relevant
consumers that “the goods or services offered by [HomeAdvisor] are endorsed by,
licensed by, sponsored by, originated with, and/or otherwise affiliated with the McHenry
Plaintiffs and the Colorado Misappropriation Class Members.” Docket No. 449 at 289-
290, 292, ¶¶ 1001(b), 1011. The CCPA claim further alleges that HomeAdvisor has
made “false and misleading statements” about the class members’ businesses. Id. at
290, ¶ 1001(d).
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02154-RBJ, 2018 WL 2196065, at *3 (D. Colo. May 14, 2018) (assessing likelihood of
confusion for Colorado unfair competition claim under the Lanham Act’s test for
likelihood of confusion). The Court therefore grants this portion of the motion and
dismisses with prejudice the unfair competition claim of the Colorado Misappropriation
Class.
b. Colorado Consumer Protection Act Claim
To prevail on a CCPA claim, a plaintiff must prove the following elements:
(1) that the defendant engaged in an unfair or deceptive trade practice; (2) that
the challenged practice occurred in the course of defendant’s business, vocation,
or occupation; (3) that it significantly impacts the public as actual or potential
consumers of the defendant’s goods, services, or property; (4) that the plaintiff
suffered injury in fact to a legally protected interest; and (5) that the challenged
practice caused the plaintiff’s injury.
Warming Trends, 2023 WL 2713954, at *7 (quoting Two Moms & a Toy, LLC v. Int’l
Playthings, LLC, 898 F. Supp. 2d 1213, 1219 (D. Colo. 2012) (quoting Rhino Linings
USA, Inc. v. Rocky Mountain Rhino Lining, Inc., 62 P.3d 142, 146-47 (Colo. 2003))).
The “CCPA does not specify which injuries it is intended to prevent.” Crowe v. Tull, 126
P.3d 196, 209 (Colo. 2006) (citing Hall v. Walter, 969 P.2d 224, 236 (Colo. 1998)).
However, courts have previously found that the following types of injuries are covered
under the CCPA: injury to property; economic loss; harm to reputation; and loss of
business. See, e.g., Hall, 969 P.2d at 236; Crowe, 126 P.3d at 210; Harvey Barnett,
Inc. v. Shidler, 338 F.3d 1125, 1135 (10th Cir. 2003); Thomas v. Childhelp, Inc., 548
P.3d 1152, 1158 (Colo. App. 2024); Predator Int’l, Inc. v. Gamo Outdoor USA, Inc., No.
09-cv-00970-PAB-KMT, 2011 WL 3799030, at *2 (D. Colo. Aug. 26, 2011).
HomeAdvisor argues that plaintiffs cannot establish the CCPA’s injury element
for the same reasons discussed with respect to the Lanham Act claims. Docket No. 650
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at 28. Plaintiffs respond that the Court should deny this portion of the motion because
HomeAdvisor is not entitled to judgment on the Lanham Act claims and plaintiffs have
adequately established that they suffered harm from HomeAdvisor’s conduct. Docket
No. 657 at 26-27. Specifically, plaintiffs argue that HomeAdvisor’s actions have harmed
former SPs by “causing a loss of customers” and “loss of goodwill.” Id. at 26.
The Court finds that plaintiffs have failed to raise a genuine dispute of fact
establishing that any members of the Colorado Misappropriation Class suffered an
injury in fact. Plaintiffs offer no undisputed or disputed statements of fact in the
appropriate fact section of their brief identifying a Colorado class member who has
suffered a loss of customers, a loss of goodwill, or any other economic injury from the
four statements on HomeAdvisor’s website or from the display of their trademarks on
HomeAdvisor’s website.46 Likewise, plaintiffs present no evidence that the class
46 In response to one of HomeAdvisor’s statements of undisputed fact, plaintiffs
broadly argue that their “evidence includes voluntarily submitted narratives from former
SPs confirming being uniformly victimized by HA and HA’s use of their Content.”
Docket No. 657 at 11, ¶¶ 52-53 (citing Docket Nos. 657-11, 657-12, 657-13, 657-14,
and 657-15). However, for the reasons discussed previously, the Court declines to
consider the web forms at the summary judgment stage because the web forms are
inadmissible hearsay. Nevertheless, even if the Court considered the web forms, the
cited web forms only contain submissions from seven individuals in the State of
Colorado. See Docket No. 657-11 at 34-35; Docket No. 657-12 at 8; Docket No. 657-13
at 12, 32; Docket No. 657-14 at 14; Docket No. 657-15 at 4, 20. The seven
submissions contain no information suggesting that the individuals have suffered any
injury from the four allegedly misleading statements on HomeAdvisor’s website.
Furthermore, the seven submissions do not state that any of the individuals have lost
customers or suffered any harm to their reputations from HomeAdvisor’s use of their
trademarks in its directory. In fact, in response to a question asking whether
HomeAdvisor “continued to use your business’s likeness or name to redirect customers”
after “you terminated your HomeAdvisor membership,” several of the individuals
responded: “Not that we are aware of,” see Docket No. 657-11 at 35; “Not to my
knowledge,” see Docket No. 657-13 at 12; “Not sure,” see Docket No. 657-13 at 32;
“No,” see Docket No. 657-15 at 20; and “I don’t know,” see Docket No. 657-15 at 4.
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representatives, Brad McHenry and Linda McHenry, have suffered any loss of
customers, a loss of goodwill, or any other economic injury from the allegedly
misleading statements on HomeAdvisor’s website or from the display of their
trademarks on HomeAdvisor’s website.47 Because plaintiffs have failed to establish an
inference that members of the Colorado Misappropriation Class have suffered an injury
in fact to a legally protected interest, HomeAdvisor is entitled to summary judgment on
the CCPA claim. The Court therefore grants this portion of HomeAdvisor’s motion and
dismisses with prejudice the CCPA claim of the Colorado Misappropriation Class.
5. 	Claim under Idaho Law
The Idaho Misappropriation Class asserts a claim under the Idaho Consumer
Protection Act (“ICPA”), Idaho Civ. Code § 48, et seq. Docket No. 449 at 295-98,
¶¶ 1028-1036. The ICPA claim is based on the same allegations as the Lanham Act
One individual responded, “YES,” see Docket No. 657-14 at 14, but provided no
information suggesting that the business suffered any injury.
47 In response to one of HomeAdvisor’s proffered facts, plaintiffs suggest that
declarations previously filed in the companion case, see Costello v. HomeAdvisor, Inc.,
Case No. 18-cv-01802-PAB-KAS, provide evidence of “harm.” Docket No. 657 at 11,
¶ 52 (citing Docket No. 657-40). That exhibit, consisting of 119 pages of declarations
from 2018, contains one declaration from the McHenrys, but contains no other
declarations from other individuals who live in Colorado. See Docket No. 657-40 at 31-
37. The McHenrys’ declaration states that “HomeAdvisor’s conduct of channeling
potential customers away from our company to our competitors is harmful to our
business. HomeAdvisor’s continued and purposeful misuse of our Online Profile Page
is intended to bestow a financial benefit upon HomeAdvisor.” Id. at 36, ¶ 12. The Court
finds that the McHenrys’ declaration is too speculative to demonstrate an injury under
the CCPA. For example, the declaration does not identify the number or names of any
consumers who were diverted from the McHenrys’ page to competitors’ pages. See
Warming Trends, 2023 WL 2716652, at *14 (finding that a company manager’s
testimony that, “I believe that we have lost sales” was too speculative because she
could not identify any specific sales that the company lost). Accordingly, the McHenrys’
declaration is insufficient to raise a genuine dispute of fact regarding the injury element
of the CCPA claim.
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claims. See id. at 296, ¶ 1029.48 To establish a claim under the ICPA, a plaintiff must
prove: “(1) the consumer purchased goods or services from a seller; (2) the seller
engaged in unfair or deceptive act(s) or practice(s) that are declared unlawful under the
ICPA; and (3) the unfair act(s) or practice(s) caused the consumer to suffer an
‘ascertainable loss of money or property’ (real or personal).” Pickering v. Sanchez, 544
P.3d 135, 142 (Idaho 2024) (quoting Litster Frost Inj. Laws., PLLC v. Idaho Inj. L. Grp.,
PLLC, 518 P.3d 1, 11 (Idaho 2022)). An “ascertainable loss of money” under the ICPA
is “[a]ny deprivation” of money that “is capable of being discovered, observed, or
established.” Litster Frost Inj. Laws., 518 P.3d at 13 (citation omitted).
HomeAdvisor argues that the ICPA claim fails for the same reason as the
Lanham Act claims, namely, that there is no proof of harm. Docket No. 650 at 27-28.
Plaintiffs respond that the Court should deny this portion of the motion because plaintiffs
have adequately established that they suffered harm from HomeAdvisor’s conduct.
Docket No. 657 at 26-27.
The Court finds that plaintiffs have failed to raise a genuine dispute of fact
establishing that any members of the Idaho Misappropriation Class suffered an
“ascertainable loss of money or property.” See Pickering, 544 P.3d at 142. Plaintiffs
offer no undisputed or disputed statements of fact in the appropriate fact section of their
brief identifying an Idaho class member who has suffered an ascertainable loss of
48 For example, the claim alleges that HomeAdvisor has made “false and
misleading statements” about the class members’ businesses and that HomeAdvisor
has “unfairly” competed with the Idaho class members by “creating the impression”
among relevant consumers that “the goods or services offered by [HomeAdvisor] are
endorsed by, licensed by, sponsored by, originated with, and/or otherwise affiliated with”
the class members.” Docket No. 449 at 297, ¶¶ 1032(b), (d).
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money or property from the four statements on HomeAdvisor’s website or from the
display of their trademarks on HomeAdvisor’s website.49 Likewise, plaintiffs present no
evidence that Ms. Haukenes, the class representative, suffered an ascertainable loss of
money or property from the allegedly misleading statements on HomeAdvisor’s website
or from the display of her trademarks on HomeAdvisor’s website. Because plaintiffs
have failed to establish an inference that members of the Idaho Misappropriation Class
suffered an “ascertainable loss of money or property,” see Pickering, 544 P.3d at 142,
HomeAdvisor is entitled to summary judgment on the ICPA claim. The Court therefore
grants this portion of HomeAdvisor’s motion and dismisses with prejudice the ICPA
claim of the Idaho Misappropriation Class.
6. 	Declaratory Relief
Plaintiffs’ complaint asserts a declaratory judgment claim (Count LI) on behalf of
the nationwide and state classes. Docket No. 449 at 286-288, ¶¶ 991-996. Plaintiffs
49 In response to one of HomeAdvisor’s statements of undisputed fact, plaintiffs
broadly argue that their “evidence includes voluntarily submitted narratives from former
SPs confirming being uniformly victimized by HA and HA’s use of their Content.”
Docket No. 657 at 11, ¶¶ 52-53 (citing Docket Nos. 657-11, 657-12, 657-13, 657-14,
and 657-15). However, for the reasons discussed previously, the Court declines to
consider the web forms at the summary judgment stage because the web forms are
inadmissible hearsay. Nevertheless, even if the Court considered the web forms, the
cited web forms only contain one submission from a person in the State of Idaho. See
Docket No. 657-13 at 62. That submission does not contain any evidence suggesting
that the individual has suffered an ascertainable loss of money or property in connection
with the alleged misappropriation. See id. (discussing the individual’s attempts to
cancel his HomeAdvisor membership). Plaintiffs also suggest that declarations
previously filed in the companion case, see Costello v. HomeAdvisor, Inc., Case No. 18-
cv-01802-PAB-KAS, provide evidence of “harm.” Docket No. 657 at 11, ¶ 52 (citing
Docket No. 657-40). That exhibit, consisting of 119 pages of declarations from 2018,
only contains three declarations from individuals who live in Idaho, including the class
representative Ms. Haukenes. See Docket No. 657-40 at 5-9, 47-53, 85-90. The
declarations do not identify any ascertainable loss of money or property that the three
individuals have suffered from the alleged misappropriation. See id.
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request that the Court enter a judgment declaring the following: (a) that HomeAdvisor
has “violated and continue[s] to violate section 43(a) of the Lanham Act (15 U.S.C.
§ 1125);” (b) “HomeAdvisor has violated and continues to violate Colo. Rev. Stat. § 6-1-
101;” (c) “HomeAdvisor has violated and continues to violate Fla. Stat. § 501.201;” and
(d) “HomeAdvisor has violated and continues to violate Idaho Civ. Code § 480.” Id.,
¶ 995.
HomeAdvisor argues that the Court is not required to address any “request for
forward-looking equitable relief” because plaintiffs’ claims fail on the merits. Docket No.
650 at 28. The Court agrees. Because plaintiffs’ substantive claims under the Lanham
Act and the state consumer protection statutes have failed, their “request for declaratory
relief in relation to those claims is not viable.” See Long v. Wells Fargo Bank, N.A., 670
F. App’x 670, 671 (10th Cir. 2016) (unpublished) (collecting cases holding that
declaratory judgment remedies are not available when the underlying causes of action
have been dismissed). Accordingly, the Court grants this portion of HomeAdvisor’s
motion and dismisses plaintiffs’ declaratory judgment claim with prejudice.
C. Plaintiffs’ Motion for Summary Judgment
Plaintiffs move for summary judgment on all claims of the misappropriation
classes. Docket No. 649 at 1, 23-27.50 Because the Court granted summary judgment
50 As a preliminary matter, the Court notes that plaintiffs devote a substantial
section of their brief to discussing HomeAdvisor’s T&Cs. Docket No. 649 at 3-6, 10-15,
21-23. Plaintiffs request that the Court declare “[a]s a matter of law,” that HomeAdvisor
“does not hold, nor was it granted, any right or license to former SPs’ names,
likenesses, or Content.” Id. at 23. However, plaintiffs do not identify a cause of action
that would entitle them to that declaratory judgment. See Savant Homes, Inc. v. Collins,
No. 13-cv-2049-WJM-MEH, 2015 WL 899302, at *11 (D. Colo. Feb. 27, 2015), aff’d,
809 F.3d 1133 (10th Cir. 2016) (“a declaratory judgment is a form of relief rather than an
independent cause of action”). As HomeAdvisor points out, the existence of a licensing
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to HomeAdvisor on all the claims of the misappropriation classes, the Court denies
plaintiffs’ motion for summary judgment on these claims.51
IV. 	CONCLUSION
It is therefore
ORDERED that HomeAdvisor, Inc.’s Motion for Summary Judgment [Docket No.
650] is GRANTED. It is further
ORDERED that Count XLIX, Count L, Count LI, Count LII, Count LIII, Count LIV,
Count LV, Count LVI are DISMISSED with prejudice. It is further
provision in the T&Cs “might be a defense to Plaintiffs’ misappropriation claims,” but
HomeAdvisor has not asserted that defense at the summary judgment stage. Docket
No. 662 at 25 n.10.
51 Even if the Court had denied HomeAdvisor’s motion for summary judgment on
some or all of the claims, the Court would still deny plaintiffs’ motion. In order to obtain
summary judgment as the party who bears the burden of proof at trial, plaintiffs must
submit evidence to establish each element of their claims. See Pelt, 539 F.3d at 1280
(noting that a moving party who has the burden of proof at trial must “establish, as a
matter of law, all essential elements of the issue before the nonmoving party can be
obligated to bring forward any specific facts alleged to rebut the movant’s case”). The
misappropriation classes assert seven distinct claims under federal and state law. See
Docket No. 449 at 282-298; see also supra (discussing the elements for each claim).
Plaintiffs only include fifteen proffered undisputed facts in the facts section of their brief.
See Docket No. 649 at 15-19, ¶¶ 1-15. Moreover, plaintiffs devote only four pages of
their 30-page brief to discussing their federal and state law claims. Id. at 24-27.
Plaintiffs fail to identify all the requisite elements of each claim and fail to provide
undisputed facts to support many of those elements. For example, to prove a Lanham
Act false advertising claim, a plaintiff must establish that the false or misleading
statement constitutes “commercial advertising,” which has a five-part test. See Strauss,
951 F.3d at 1267. Plaintiffs do not discuss the commercial advertising test or present
any evidence to satisfy each of the five prongs. See Docket No. 649 at 24-27.
Moreover, as discussed above, many of plaintiffs’ claims, including the Lanham Act
false association claim, the CCPA claim, and the FDUTPA claim require proof of
likelihood of confusion. Plaintiffs offer no undisputed facts or argument touching on the
likelihood of confusion element. See Docket No. 649 at 15-19, 24-27, ¶¶ 1-15.
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ORDERED that The Misappropriation Classes’ Motion for Summary Judgment
[Docket No. 649] is DENIED.
DATED September 13, 2024.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
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