Sampedro et al. v. City Lounge, LLC et al. (D. Mass. 21-cv-30064).

Three models/social media influencers, Claudia Sampedro, Tiffany Toth Gray and Iesha Marie Crespo, sued Holyoke’s City Sports Bar & Lounge and its owner Gabriel Reyes, accusing the business of altering images of the models to make it appear that they were participating in City Lounge events.  Unlike many similar cases, City Lounge appears to be a standard bar/restaurant with live music and DJ’s rather than a strip club.  The plaintiffs brought claims for false advertising and false association under the Lanham Act, violation of state and common law rights to privacy, unauthorized use of name or image under state law, violation of common law right to privacy, violation of c. 93A, defamation, negligence and respondeat superior, conversion, unjust enrichment and quantum meruit, for a total of twelve causes of action.

The complaint was filed in June 2021 and served that August.  City Lounge failed to answer or otherwise respond to the complaint, and default was entered in January 2024.  City Lounge also failed to appear at the hearing on damages, which was held because the complaint did not allege a sum certain, requiring the plaintiffs to prove their damages.

Magistrate Judge Robertson, who conducted the hearing, recommended that the motion for default judgment be granted with respect to the Plaintiffs’ defamation claim but denied as to the other claims.  She noted that even with Defendant having failed to answer, the Court must still determine whether the facts as pled state a plausible case for relief.  She pointed to Judge Mastroianni’s decision in Ratchford v. Orange Lantern, in which he dismissed a similar set of claims for failure to state a cognizable claim or to support the claims with sufficient factual allegations.  In that case, Judge Mastroianni noted that the same set of attorneys had brought similar cases all over the country, each bearing a similar broad set of claims and a paucity of factual allegations in support of the bulk of the claims.

Looking at the claims against the owner of the club as an individual, Judge Robertson noted that a corporate officer is only liable personally for a tort committed by the corporation if he personally participated in the alleged tort.  Mere acquiescence in the conduct, absent direct involvement, is insufficient.  As the complaint did not allege any acts conducted by the owner personally other than his having “operational control” over the bar, Judge Robertson recommended dismissing all claims against the owner in his personal capacity.

The Lanham Act counts were dismissed under the same rationale as the Ratchford case, which is that the false advertising part of Section 1125(a) requires a showing that economic harm resulted directly through the deceptive advertising – simple misrepresentation is insufficient, the plaintiff must show harm other than not having been paid.  While the type of misrepresentation here could cause reputational injury, the complaint simply failed to allege any such injury.

The state right to privacy claims require the plaintiff to be domiciled in Massachusetts, which the Plaintiffs were not, and Massachusetts does not recognize a common law (non-statutory) cause of action for invasion of privacy or to publicity.  The negligence claim failed because the complaint did not allege facts to show that the club or its owner owed them a duty of care that might have been breached.  The conversion claim failed because, while conversion may be based on money, it must allege that the defendants wrongfully claimed ownership or control over a specific pool or fund, not just that it made money to which it might not be justified.

While the defamation claims survived, Judge Robertson determined that there was no evidence of out-of-pocket expenses, harm inflicted by impairment of reputation and standing in the community, or personal humiliation or mental anguish.  The only evidence of damages was a proffer by an expert on what the club would have had to pay to gain endorsements and use of the Plaintiff’s images for promotional purposes, but that value is unrelated to the types of damages available under a defamation claim.  As such, Judge Robertson recommended the award of only nominal damages of $1.00 on the defamation claims.  The lack of economic harm mandated dismissal of the 93A claim as well.  Judge Robertson also denied an award of costs, noting that under Massachusetts state law, a plaintiff awarded nominal damages is not entitled to costs.  Finally, she recommended against an award of attorneys’ fees.