Hollywood movie star Reese Witherspoon and her clothing line, Draper James, LLC, have found themselves the subjects of a public relations debacle, and now, a class action after running a promotion for teachers gone horribly wrong.

In April, Draper James ran an Instagram promotion to recognize and thank teachers for their work during the COVID-19 pandemic. The April 2, 2020 promotion post stated: “Dear Teachers: We want to say thank you. During quarantine we see you working harder than ever to educate our children. To show our gratitude, Draper James would like to give teachers a free dress.”

The Instagram post went on to provide further details of the promotion, including that to “apply”, teachers needed to fill out a form  with their name and work email addresses, a photo of their school IDs, the grade level and subjects they teach, as well as their school name and state. In exchange for providing what the teachers alleged to be “sensitive personal, employment information,” teachers thought they would receive a free dress from the brand. While the Instagram post did caveat in a parenthetical that the offer was “valid while supplies last – winners will be notified on Tuesday April 7th” the post did not disclose that only 250 teachers would receive a free dress. The lawsuit claims that the “vague illusory comment” was insufficient to place a reasonable consumer on notice that that this was a sweepstakes or that the brand would “only be making an unreasonably limited number of products available under this offer.”
Continue Reading Legally blown: Reese Witherspoon and her fashion line face breach of contract and privacy class action over ‘free dress’ giveaway

Two recent cases serve as a reminder of the key role an online service provider’s (OSP) terms of service play in social media marketing. The courts in Darnaa, LLC v. Google, Inc., 2015 WL 7753406 (N.D. Cal. Dec. 2, 2015) and Lewis v. YouTube, LLC, 2015 BL 428281 (Cal. App. 6th Dist. Dec. 28, 2015), came to differing interpretations of YouTube’s Terms of Service, leading to disparate results for similar plaintiffs.

In Darnaa, YouTube moved plaintiff Darnaa’s music video “Cowgirl” to a new location and reset its view count on the grounds that Darnaa used automated tools in violation of YouTube’s Terms of Service to increase its view count. Darnaa sued, alleging YouTube’s actions were a breach of the covenant of good faith and fair dealing. The United States District Court for the Northern District of California found that it was unclear whether YouTube’s Terms of Service allowed it to unilaterally remove videos and their “view counts” whenever YouTube determined those Terms had been violated. Accordingly, the court ruled that the allegations in Darnaa’s complaint were sufficient to support a claim for a breach of the covenant of good faith and fair dealing. Though the court dismissed Darnaa’s claims on the procedural grounds that it was filed late, it permitted Darnaa to refile if she could plead a compelling justification for her late filing.
Continue Reading YouTube Rulings Emphasize the Importance of an OSP’s Terms of Service in Social Media Marketing