# Ratchford v. Orange Lantern, Inc.

> District Court, D. Massachusetts · March 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10201815

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** March 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10201815

## How later opinions describe it (automated extraction)

- explaining that § 1B provides a remedy for public disclosure of private facts and unreasonably intrusive conduct, but does not “give rise to [a] claim of false light invasion of privacy”
- explaining that an expert qualified by knowledge or experience “need not have had first-hand dealings with the precise type of event that is at issue” in a case
- finding no reputational injury proximately caused by the defendant’s misuse of the plaintiffs’ images because plaintiffs did not present any evidence suggesting there was any impact on their careers
- explaining that, under Chapter 93A, § 11, the plaintiff must demonstrate that it suffered a loss of money or property, not time or intangibles like peace of mind, and that the loss stemmed from conduct that violated Chapter 93A

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

ABIGAIL RATCHFORD, et al.,

Plaintiffs,
v.
Civil Action No. 19-30092-MGM
ORANGE LANTERN, INC. and MARK
PESSOLANO,

Defendants.

MEMORANDUM AND ORDER ON CROSS MOTIONS FOR
SUMMARY JUDGMENT AND DEFENDANTS’ MOTIONS TO STRIKE
(Dkt. Nos. 59, 60, 61, & 62)

March 13, 2024

MASTROIANNI, U.S.D.J.
I. INTRODUCTION
This is one of numerous similar cases that have been brought in this district and around the
country by the same attorneys on behalf of groups of professional models and social media
influencers who allege their images have been improperly used to promote night clubs offering
adult entertainment. Although most of these cases have been resolved without a court ruling on the
substantive claims, the parties in this case have proceeded through discovery and have now filed
dispositive motions. The plaintiffs, Rosa Acosta, Jessica Burciaga, Amanda Cerny, Shelby Chesnes,
Iesha Marie Crespo, Jaime Edmondson-Longoria, Jamillette Gaxiola, Brenda Geiger, Emma
Glover, Tiffany Toth Gray, Hillary Hepner, Jessica Hinton, Krystal Forscutt Hipwell, Ashley
Hobbs, Melanie Iglesias, Rosie Jones, Julianne Klaren, Joanna Krupa, Arianny Celeste Lopez, Jaime
Middleton, Denise Milani, Andra Cheri Moreland, Lyna Perez, Lucy Pinder, Lina Posada, Abigail
Ratchford, Danielle Ruiz, Ina Schnitzer, Sarah Stage, Jacklyn Swedberg, and Chantel Zales
(collectively “Plaintiffs”),1 have brought this action against Orange Lantern, Inc. and Mark
Pessolano (collectively “Defendants”). Orange Lantern previously operated the Magic Lantern
night club and Pessolano was one Orange Lantern’s owners. Plaintiffs have alleged Defendants are
liable for images of Plaintiffs that were posted, without their consent or knowledge, to Magic

Lantern’s Facebook page between July 16, 2012 and November 21, 2018.
In their Amended Complaint, Plaintiffs asserted twelve causes of action arising from the
social media postings: two federal claims alleging false advertising, in violation of the Lanham Act,
15 U.S.C. § 1125(a)(1)(B) (Count I), and false association, in violation of the Lanham Act, 15 U.S.C.
§ 1125(a)(1)(A) (Count II), and ten claims under Massachusetts law. Plaintiffs have since withdrawn
three of their state law claims, leaving claims for right of privacy based upon Mass. Gen. Laws c.
214, § 1B (Count IV); unauthorized use of a person’s name, portrait, or picture in violation of
Mass. Gen. Laws c. 214, § 3A (Count V); unfair trade practices, in violation of Mass. Gen. Laws c.
93A, § 11 (Count VII); defamation (Count VIII); negligence and respondeat superior (Count IX);
unjust enrichment (Count XI); and quantum meruit (Count XII). (Am. Compl., Dkt. No. 28; Pls.
Mot. Summ. J. n. 4, Dkt. No. 62 (“Plaintiffs hereby withdraw their third and sixth causes of action .
. . and their tenth cause of action.”).) Both parties have moved for summary judgement, each side
arguing that there are no disputes of material fact and they are entitled to judgment as a matter of

law. (Dkt. Nos. 59 & 62.) Defendants have also filed motions asking the court to exclude testimony
and evidence offered by two experts retained by Plaintiffs. (Dkt. Nos. 60 & 61.)

1 Two other women were also named as plaintiffs in the Amended Complaint, but the parties stipulated to the dismissal
of the claims by Sarah Underwood and agree that the claims of Tara Leigh Patrick a/k/a Carmen Electra have also
been resolved. (Sarah Underwood Stip. Dismissal, Dkt. No. 50; Pls.’ Mot. Summ. J., n.2, Dkt. No. 62.)
For the reasons that follow, Defendants’ motions to exclude Plaintiffs’ experts are denied;
Plaintiffs’ motion for summary judgment is denied; and Defendants’ motion for summary judgment
is allowed as to all counts except the defamation claims (Count VIII). Further, since the defamation
claims are based, in part, on images posted to the Magic Lantern’s social media pages more than
three years before this action was filed, the case is stayed pending a decision from the
Massachusetts Supreme Judicial Court (“SJC”) on the question certified to it Davalos v. Baywatch Inc.,

_ F. Supp. 3d _, Civ. Action No. 21-11075-NMG, 2023 WL 8703557 (D. Mass. Dec. 15, 2023).

II. SUMMARY JUDGMENT STANDARD
“The function of summary judgment is ‘to pierce the pleadings and to assess the proof in
order to see whether there is a genuine need for trial.’” Burt v. Bd. of Trs. of Univ. of R.I., 84 F.4th 42,
59 (1st Cir. 2023) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990)). “Summary
judgment is appropriate ‘if 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.’” Bellone v. Southwick-Tolland Reg’l Sch. Dist.,
748 F.3d 418, 422 (1st Cir. 2014) (quoting Fed. R. Civ. P. 56(a)). “Facts are material when they have
the ‘potential to affect the outcome of the suit under the applicable law,’” and disputes are genuine
when a reasonable jury considering the evidence “‘could resolve the point in the favor of the non-
moving party.’” Cherkaoui v. City of Quincy, 877 F.3d 14, 23-24 (1st Cir. 2017) (quoting Sánchez v.
Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)).

In most cases, the court “may consider only evidence that would be admissible at trial.”
Klauber v. VMware, Inc., 80 F.4th 1, 7 (1st Cir. 2023). In the District of Massachusetts, the presentation
of such evidence is governed by Local Rule 56.1, which provides that “[m]otions for summary
judgment shall include a concise statement of the material facts of record as to which the moving
party contends there is no genuine issue to be tried, with page references to affidavits, depositions
and other documentation.” D. Mass. R. 56.1. While parties typically file a separate document, a
statement of material facts contained within a party’s supporting memorandum satisfies the
requirements of the local rule provided the facts are supported with citations to documents in the
record. A party opposing a motion for summary judgment has a corresponding obligation to provide
the court with a concise statement of material facts that are in dispute, also tied by page references
to specific “affidavits, depositions and other documentation.” Id.

Usually, the opposing party files a paragraph-by-paragraph rebuttal to the moving party’s 56.1
statement of material facts and may also include additional facts that support the opposition. Such a
format makes it easy for the court to identify the contested facts but is not required under the local
rule. See McGrath v. Tavares, 757 F.3d 20, 26 n.10 (1st Cir. 2014). Since the local rule permits the
moving party to file a reply, but does not grant the opposing party an opportunity to file a sur-reply,
a moving party’s reply may not assert new facts or raise new arguments beyond what is necessary to
respond to the opposing party’s opposition. See Knowlton v. Shaw, 791 F. Supp. 2d 220, 268 (D. Me.
2011) (explaining that when a local rule provides for the filing of a reply but not a sur-reply, the
inclusion of new facts in a reply “run[s] contrary to the requirement that the facts must be interpreted
in a manner most congenial to the non-movant”). Properly supported facts set forth by the moving
party and not placed into dispute by record evidence cited by the opposing party are deemed admitted
for purposes of the summary judgment motion. D. Mass. R. 56.1; see also Fed. R. Civ. P. 56(e)(2) (“If
a party fails to properly support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes
of the motion . . . .”).
Undisputed facts must be viewed “in the light most favorable to the non-moving party” and
the court must “draw all reasonable inferences in [the non-moving party’s] favor.” Carlson v. Univ. of
New England, 899 F.3d 36, 43 (1st Cir. 2018). “The fact that the parties have filed cross motions . . .
does not alter these general standards.” Gibson Found., Inc. v. Norris, 88 F.4th 1, 5 (1st Cir. 2023). Each
party’s motion is reviewed “independently, viewing the facts and drawing inferences as required by
the applicable standard.” Id.

III. DEFENDANTS’ MOTIONS TO EXCLUDE PLAINTIFFS’ EXPERTS
Defendants have moved to exclude evidence related to the opinions of two expert

witnesses retained and disclosed by Plaintiffs. Stephen Chamberlin, an agent with more than thirty
years of experience in the model and talent industry, has offered opinions about the amount of
money each plaintiff would have charged for permitting her image to be posted on Magic Lantern’s
Facebook page. Thomas Maronick, an emeritus professor of marketing with more than thirty years
of experience in his field, conducted a survey and has offered opinions about the consumer
confusion created by the Facebook postings.
“A district court must ‘ensur[e] that an expert’s testimony both rests on a reliable
foundation and is relevant to the task at hand.’” Packgen v. Berry Plastics Corp., 847 F.3d 80, 85 (1st
Cir. 2017) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597 (1993)). At the same time,
under First Circuit precedent, exclusion of an expert report at summary judgment is only warranted
when the report’s “defects are obvious on the face of [the] proffer.” Cortes-Irizarry v. Corporacion
Insular De Seguros, 111 F.3d 184, 188 (1st Cir. 1997). The admission of expert evidence is governed
by Fed. R. Evid. 702, which has recently “been amended to clarify and emphasize that expert

testimony may not be admitted unless the proponent demonstrates to the court that it is more likely
than not that the proffered testimony meets the admissibility requirements set forth in the rule.”
Fed. R. Evid. 702, Adv. Comm. Notes 2023 Amendment. In order for an expert’s opinions to be
admissible, the court must find:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert’s opinion reflects a reliable application of the principles and methods
to the facts of the case.

Fed. R. Evid. 702.
Notably, these requirements focus on whether there is a sufficient analytical connection
between the data the expert relies upon and the opinions offered. See United States v. Jackson, 58
F.4th 541, 550-51 (1st Cir. 2023). Questions regarding the strength of the facts underlying an
expert’s opinion, like all questions concerning weight and credibility of evidence, must be resolved
by a factfinder. Id. Plaintiffs contend that the opinions offered by Chamberlin and Maronick meet
the admissibility requirements of Rule 702 and Defendants’ arguments, while framed as objections
to methodology, actually concern questions of weight and credibility that cannot be resolved at
summary judgment.
After reviewing Chamberlin’s report and the parties’ arguments, the court finds his
professional background qualifies him to provide testimony about the rates Plaintiffs would have
charged to appear on Magic Lantern’s Facebook page. To the extent such facts are relevant, his
opinions are sufficiently reliable to be admissible pursuant to Rule 702. There is no dispute that
Chamberlin has over thirty years of experience as an agent for professional models and has
negotiated numerous contracts for models to appear in advertising. Since Plaintiffs did not agree to
license their images to any strip clubs during the relevant period, Defendant’s observation that
Chamberlin lacks professional experience negotiating contracts with strip clubs is immaterial. See
Microfinancial, Inc. v. Premier Holidays Intern., Inc., 385 F.3d 72, 80 (1st Cir. 2004) (explaining that an
expert qualified by knowledge or experience “need not have had first-hand dealings with the precise
type of event that is at issue” in a case).
In his report, Chamberlin acknowledged that his opinions are not based on applying an
objective formula, but that does not mean the methods he used to arrive at his opinions were
unreliable. He explained that modeling contracts are negotiated based on an individualized
balancing of multiple criteria and that is not disputed by Defendants. Chamberlin has listed the
criteria he uses in his profession and explained various assumptions he makes when negotiating
rates for individual models to appear in specific advertising. He also reviewed the posted images,
spoke with each of the plaintiffs, and reviewed her work history before reaching his opinions. Any
objections to the accuracy of Chamberlin’s statements about the criteria he considers when

negotiating modeling rates or the sufficiency of the facts reviewed before rendering his opinion
may be presented to the trier of fact, but they do not warrant his disqualification at this stage of the
litigation.
Similarly, Defendants’ critiques of the consumer survey designed and conducted by Thomas
Maronick do not raise the types of concerns that warrant the court excluding his opinions pursuant
to Rule 702. Maronick has a doctorate degree in marketing, decades of teaching at the graduate and
undergraduate level, and extensive experience conducting marketing research, all of which suffice
to establish that he is qualified to design and conduct consumer surveys and interpret the results.
He was retained by Plaintiffs to design an online survey that could be administered to “a sample of
consumers in the target market for gentlemen’s clubs in Massachusetts” and used to determine the
perceptions of consumers as to women shown in social media postings by the Magic Lantern,
specifically, “whether the women . . . have any affiliation with the club, approved the use of their
images, were paid for use of their images by the Magic Lantern Club, and . . . participate in some or

any of the events or activities at the Magic Lantern Club.” (Maronick Rep., Dkt. No. 62-5, 3.) The
survey he designed and the way it was administered gathered data that was consistent with the
limited scope of that inquiry. The reliability of his methods is not undermined by the fact that
another qualified expert may have made different decisions about how to gather similar consumer
information. Packgen, 847 F.3d at 87 (explaining that “[t]he existence of other methods of gathering
facts does not mean that the facts [an expert] relied on were insufficient”).
Maronick’s opinions were also within the scope of that inquiry and well-supported by the
survey data. Specifically, he determined that (1) a large majority of consumers considering whether
to visit a gentleman’s club consider the women working there to be an important factor in their
decision; (2) such consumers are likely to believe that women shown in ads posted by the Magic

Lantern have (a) agreed to endorse or sponsor the Magic Lantern, (b) a connection with the Magic
Lantern, (c) approved the use of their images, (d) been paid to promote the Magic Lantern, and (e)
participated in activities at the Magic Lantern; and (3) such consumers are likely to believe the
Magic Lantern posted images of women in order to convey to potential consumers that they would
see similar looking women if they visited the Magic Lantern. At a trial, Defendants would, of
course, be free to object should Maronick offer opinions that go beyond the survey data or to argue
that the survey data was flawed and should be assigned little or no weight. However, in the absence
of concerns about Maronick’s professional qualifications and the analytical fit between the survey
data and the opinions he offered in his report, the court finds no basis to exclude him as an expert
under Rule 702.

IV. MATERIAL FACTS
Both Plaintiffs and Defendants have taken the position that the material facts are not in

dispute, though they disagree about what facts are material and ask the court to draw different legal
conclusions from the facts. Plaintiffs supported their motion for summary judgment with a separate
statement of material facts. (Dkt. No. 63.) Defendants initially included a statement of material
facts within their supporting memorandum. (Dkt. No. 59.) After Plaintiffs objected to that
approach, Defendants filed a separate document containing a version of its original statement of
material facts reformatted so that each sentence became a separately numbered paragraph. (Dkt.
No. 77.) Neither side filed a paragraph-by-paragraph objection to the other’s statement of material
facts. Plaintiffs referenced their own statement of facts in their opposition to Defendants’ motion.
(Dkt. No. 72, n.1.) Defendants included additional facts that they relied upon in their reply to
Plaintiffs’ opposition to their motion for summary judgment and their opposition to Plaintiffs’
motion for summary judgment. The court has not considered these additional facts because

Defendants’ filing was untimely, having been filed two weeks after Defendants’ opposition to
Plaintiffs’ motion, the same day Plaintiffs’ reply was filed. As explained above, a moving party is
not permitted to supplement a statement of material facts in a reply. For these reasons, the
following facts are taken only from the statements of material facts filed to support each motion for
summary judgment and conflicting facts are noted.
Between 2010 and 2019, defendant Orange Lantern, Inc. owned and operated Magic
Lantern, a venue located Palmer, Massachusetts that employed women to entertain its customers
while nude or semi-nude. Defendant Mark Pessolano was one of Orange Lantern, Inc.’s three
shareholders and took an active role in the operation of Magic Lantern. In 2010 or 2012, Orange
Lantern, Inc. hired Greg Couto as a third-party contractor to manage social media accounts for
Magic Lantern. Coutu controlled Magic Lantern’s Facebook account until 2019 and posted content
to engage potential customers and build up the Magic Lantern brand. During the years Couto
managed Magic Lantern’s social media accounts, he had authority to publish content directly onto

Magic Lantern’s social media accounts. Pessolano did not request or direct Couto to post any of the
images at issue in this action, but he was aware Couto was posting high-quality images of women
with no connection to Magic Lantern on the Facebook page. Though Pessolano had experience
obtaining consent before using a dancer’s image in advertising, he never asked whether Couto had
permission to use the images he was posting. After this lawsuit was filed in the summer of 2019,
Pessolano contacted Couto and instructed him to remove postings containing Plaintiffs’ images.
Orange Lantern, Inc. sold all its assets to another entity on November 19, 2019.
At least one image of each of the Plaintiffs was posted to Magic Lantern’s Facebook page
between July 16, 2012 and November 11, 2018. Though some of the posts included text
referencing Magic Lantern, none of the posts expressly stated that an association existed between
the pictured individual and Magic Lantern. Many images were posted with more generic text or

without any accompanying text. Of the group surveyed by Maronick, approximately 79% of
respondents believed some or all of the women in the images they were shown had some affiliation
with Magic Lantern and around 70% believed some or all of the women had (1) agreed to sponsor
or endorse Magic Lantern, (2) had approved the use of their image by Magic Lantern, and (3) had
participated in activities at Magic Lantern. (Maronick Rep., Dkt. No. 62-5, 14-15.)
Plaintiffs are all domiciled outside of Massachusetts and none of them ever had a business
relationship with Magic Lantern. The images posted on Magic Lantern’s Facebook page had
previously appeared on Plaintiffs’ own social media accounts or websites or in advertising
campaigns for other businesses. Plaintiffs were not aware their images had been posted on Magic
Lantern’s Facebook page until shortly before their complaint was filed and they did not consent to
the use of their images. At the times their images were posted on Magic Lantern’s Facebook page,
Plaintiffs would not have agreed to license their images for use by Magic Lantern. They believed
their professional reputations could suffer if it seemed that they were employed by, appeared at,

endorsed, or were otherwise affiliated with venues offering nude or semi-nude entertainment.
However, no Plaintiff identified any specific event or circumstance suggesting the postings had any
impact on their careers.

V. DISCUSSION
A. Claims Against Mark Pessolano
In addition to bringing their claims against Orange Lantern, Inc., the corporation that
owned and operated Magic Lantern, Plaintiffs have asserted claims against Pessolano, in his
personal capacity. Under Massachusetts law, “[a] corporate officer is personally liable for a tort
committed by the corporation that employs him, if he personally participated in the tort by, for
example, directing, controlling, approving, or ratifying the act that injured the aggrieved party.”

Townsends, Inc. v. Beaupre, 716 N.E.2d 160, 164 (Mass. App. Ct. 1999); see also Addis v. Steele, 648
N.E.2d 773, 777 (Mass. App. Ct. 1995) (ruling that owners and managers of inn were not liable for
damages from fire in the absence of evidence that they personally “participated in acts causing
injury to the plaintiffs”). Typically, there must be evidence that a corporate officer personally
participated in the acts that injured the plaintiffs. Addis, 38 Mass. App. Ct. at 776-77; see also Escude
Cruz v. Ortho Pharm. Corp., 619 F.2d 902, 907 (1st Cir. 1980) (explaining courts “have found
personal liability” where a corporate officer was directly involved as a “guiding spirit” or “central
figure” in the injury-causing conduct).
Defendants seek dismissal of the individual capacity claims against Pessolano, arguing there
is no evidence from which a reasonable jury could conclude that he personally participated in
posting any of the images giving rise to Plaintiffs’ claims in this case. There is no evidence
suggesting Pessolano posted any of the images. Instead, the parties agree the images were all posted
by Greg Couto, a third-party Orange Lantern hired to manage social media postings for Magic

Lantern. At most, Pessolano made the decision to hire Couto and gave him unfettered access to the
Magic Lantern social media accounts, without providing any oversight. A reasonable jury
considering those facts could conclude Pessolano acquiesced to the posting of the images, but there
is no evidentiary basis for a jury to find he played an active role in selecting images or directing
Couto’s actions. In the absence of such evidence, the court will grant Defendants’ motion to
dismiss the claims asserted against Pessolano in his individual capacity. Townsends, 716 N.E.2d at
165-66 (affirming judgment in favor of individual corporate president and sole shareholder
following trial in which no evidence was presented establishing that he was personally responsible
for misrepresentations on corporation’s financial statements).
B. Claims Against Orange Lantern
Plaintiffs claim Orange Lantern violated the Lanham Act, engaged in unfair or deceptive

business practices, committed several torts, and was unjustly enriched when Couto, acting as its
agent, posted images of Plaintiffs on the Magic Lantern Facebook page. In their motion, they assert
the undisputed factual record entitles them to summary judgment on each of their claims.
Defendants contend Orange Lantern is entitled to summary judgment on all of Plaintiffs’ claims
because the undisputed facts are insufficient to enable Plaintiffs to prevail on any claim.
Additionally, Defendants argue that even if the court declines to grant summary judgment on
substantive grounds or grants summary judgment to Plaintiffs as to some or all claims, state law
statutes of limitations entitle them to summary judgment as to claims based on images posted more
than three years (tort and equitable claims) or four years (Lanham Act and unfair or deceptive trade
practices) before the original complaint was filed on July 1, 2019.

1. Lanham Act
The Lanham Act protects against the deceptive and misleading use of marks in interstate

commerce primarily through its trademark provisions, but it also “creates a cause of action for
unfair competition through misleading advertising or labeling.” POM Wonderful LLC v. Coca-Cola
Co., 573 U.S. 102, 107 (2014); 15 U.S.C. § 1125(a). Although the statute “authorizes suit by ‘any
person who believes that he or she is likely to be damaged’ by a defendant’s false advertising,” in
Lexmark International, Inc. v. Static Control Components, Inc., the Supreme Court held that only a more
limited group of plaintiffs may bring suits under § 1125(a). 572 U.S. 118, 129 (2014) (quoting
§ 1125(a)(1)). To invoke the statutory cause of action, a plaintiff must be within the zone of
interests protected by § 1125(a) and have suffered injuries “proximately caused by violations of the
statute.” Id. at 132.
At the summary judgment stage, it is the plaintiff’s burden to identify evidence sufficient to
establish a right to sue under § 1125(a).2 See id. at 140. The Lanham Act “includes an ‘unusual, and

extraordinarily helpful,’ detailed statement of the statute’s purposes” which define the zone of
interests for claims brought under the statute. Id. at 131. There are two types of claims available
under § 1125(a): false advertising and false association. Id. at 122 (citing Waits v. Frito-Lay, Inc., 978
F.2d 1093, 1108 (9th Cir. 1992), abrogated, in part, by Lexmark). False advertising claims enable
plaintiffs to recover when a defendant has made “false representations in advertising concerning
the qualities of goods or services,” and false association claims create liability for “false
representations concerning the origin, association, or endorsement of goods or services through the
wrongful use of another’s distinctive mark, name, trade dress, or other device.” Waits, 978 F.2d at
1108.
Plaintiffs have alleged Orange Lantern is liable for both types of claims and the Facebook
postings injured them by (1) falsely implying an association between them and a strip club and (2)
depriving them of the revenue they would have received had Orange Lantern paid to obtain proper
authority to use their images. Because the statutory goal served by § 1125(a) is to protect those

2 Although the Supreme Court applied the zone-of-interests and proximate cause tests only to analyze
standing to bring a false advertising claim, it strongly implied plaintiffs would need to satisfy the same tests
to establish standing to bring false association claims. The Court noted that § 1125(a) creates liability for
both types of claims and began its analysis with broad language in § 1125(a) that applies equally to false
association claims. Additionally, the Court referenced false association claims while defining the zone of
interests for false advertising cases, suggesting a broader zone of interests might be protected because
“[m]ost of the enumerated purposes are relevant to false-association cases,” while “a typical false-advertising
case will implicate only [one of] the Act’s goal[s].” Lexmark, 572 U.S. at 131.
engaged in commerce from unfair competition, Plaintiffs must allege “an injury to a commercial
interest in reputation or sales” caused by Orange Lantern’s false advertising to “come within the
zone of interests in a suit for false advertising under § 1125(a).” Lexmark, 572 U.S. at 131-32. The
zone of interests protected by false association claims is at least as broad and may even be more
extensive because other “enumerated purposes are relevant to false-association cases.” Id. at 131.
Plaintiffs who were earning their living by promoting their image, likeness, or identity when their

images were posted to Magic Lantern’s Facebook page clearly had a commercial interest in their
reputations and sales such that an injury to either would bring them within the zone of interests for
both types of claims. Whether Plaintiffs have identified evidence from which a factfinder could
conclude they suffered an injury proximately caused by Orange Lantern presents a closer question.
The loss of the income they “would have generated had Defendants operated through legal
channels and hired [them] to appear” on Magic Lantern’s Facebook page is not the type of injury
that can satisfy the proximate-cause requirement. (Pls. Mot. Summ. J., Dkt. No. 62, 11.) As the
Supreme Court explained in Lexmark, the proximate-cause requirement for a false advertising claim
“ordinarily” requires a plaintiff to show “economic or reputational injury flowing directly from the
deception wrought by the defendant’s advertising.” Lexmark, 572 U.S. at 133; see also Waits, 978
F.2d at 1108 (explaining that Congress did not intend the Lanham Act to create a federal tort of
misrepresentation). The Supreme Court did not separately define the proximate-cause requirement
for false association claims, but the “[t]raditional proximate-causation principles” described in

Lexmark apply equally well to false association claims. Lexmark, 572 U.S. at 138.
At this stage of litigation, neither of the injuries identified by Plaintiffs suffice to establish
the required proximate cause. Orange Lantern’s decision to use Plaintiffs’ images without
permission deprived Plaintiffs of the opportunity to be paid for their appearances on Magic
Lantern’s Facebook page, but that economic injury was completely independent of any
misperceptions of an association between Plaintiffs and Magic Lantern created by the Facebook
postings. See id. at 138; see also Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99, 120 (2d Cir. 2023)
(ruling, in a factually similar case, that a defendant’s failure to pay when misappropriating a
plaintiff’s image “fails to check any of Lexmark’s boxes”). In theory, the postings could have caused
the type of reputational injury that can satisfy the proximate-cause requirement. However, Plaintiffs
have stopped short of claiming that they actually suffered such reputational injuries, and their

Statement of Material Facts is devoid of evidence that any such injuries occurred. As Defendants
have noted, “none of the plaintiffs could provide any evidence of even the slightest actual impact
these postings had on their careers” during discovery. (Defs. Mot. Summ. J., Dkt. No. 59, 5.) In the
absence of such evidence, the court concludes Plaintiffs have not demonstrated that they would be
able to prove they suffered “an injury to a commercial interest in sales or business reputation
proximately caused by [Defendants’] misrepresentations.” Lexmark, 572 U.S. at 140; see also Souza,
68 F.4th at 120 (finding no reputational injury proximately caused by the defendant’s misuse of the
plaintiffs’ images because plaintiffs did not present any evidence suggesting there was any impact
on their careers). Summary judgment will, therefore, enter for Orange Lantern as to Plaintiffs’
Lanham Act claims (Counts I & II).

2. Unfair Trade Practices
Plaintiffs have also asserted the Facebook postings constituted unfair and deceptive trade

practices in violation of Mass. Gen. Laws c. 93A, § 11. More specifically, they alleged that Orange
Lantern made the Facebook postings as part of a false and misleading advertising campaign and “in
order to convince potential consumers . . . that Plaintiffs were either strippers at the Club, endorsed
the Club, or were otherwise associated or affiliated with the Club.” (Am. Compl., Dkt. 28 ¶ 248.)
“Section 11 of Chapter 93A ‘bestows a right of action on any person who engages in the conduct
of any trade or commerce and who suffers any loss of money or property, real or personal, as a
result of the unfair or deceptive act or practice.’” LimoLiner, Inc. v. Dattco, Inc., 919 F.3d 86, 90 (1st
Cir. 2019) (quoting Auto Flat Car Crushers, Inc. v. Hanover Ins. Co., 17 N.E.3d 1066, 1076 (Mass. 2014)
(internal alteration and quotations omitted)). “A successful Chapter 93A § 11 claim . . . has three
elements: (1) the defendant engaged in an unfair method of competition or committed an unfair
deceptive act or practice; (2) a loss of money or property was suffered; and (3) the defendant’s

unfair or deceptive method, act or practice caused the loss suffered.” Anoush Cab, Inc. v. Uber Techs.,
Inc., 8 F.4th 1, 16 (1st Cir. 2021). For the reasons discussed above, Orange Lantern is entitled to
summary judgment on Plaintiffs’ Chapter 93A claim (Count VII) because there is no evidence in
the summary judgment record from which a reasonable jury could find Plaintiffs suffered a “loss of
money or property” caused by Orange Lantern’s misleading use of Plaintiffs’ images. See Arthur D.
Little, Inc. v. Dooyang Corp., 147 F.3d 47, 56 (1st Cir. 1998) (explaining that, under Chapter 93A, § 11,
the plaintiff must demonstrate that it suffered a loss of money or property, not time or intangibles
like peace of mind, and that the loss stemmed from conduct that violated Chapter 93A).

3. Tort Claims
(a) Right of Privacy
A plaintiff whose privacy has been invaded by a defendant who made a “public disclosure
of private facts . . . [or] intruded unreasonably upon the plaintiff’s ‘solitude’ or ‘seclusion’” may seek

a remedy pursuant Mass. Gen. Laws c. 214, § 1B. Polay v. McMahon, 10 N.E.3d 1122, 1126 (Mass.
2014). Although other types of conduct may give rise to claims for invasion of privacy in some
contexts, § 1B does not provide a remedy for false light invasion of privacy or appropriation of a
plaintiff’s name or likeness. Ayash v. Dana-Farber Cancer Inst., 822 N.E.2d 667, 681 n. 16 (Mass.
2005) (explaining that § 1B provides a remedy for public disclosure of private facts and
unreasonably intrusive conduct, but does not “give rise to [a] claim of false light invasion of
privacy”); Tedeschi-Freij v. Percy Law Group, P.C., 172 N.E.3d 774, 776 n. 7 (Mass. App. Ct. 2021)
(interpreting Mass. Gen. Laws c. 214, § 3A as providing a remedy for the appropriation of a
person’s name or likeness for the commercial benefit of another that does not overlap with the
remedies provided under § 1B). But see, Shepard’s Pharmacy, Inc. v. Stop & Shop Cos., Inc., 640 N.E.2d
1112, 1116 (Mass. App. Ct. 1994) (affirming trial judge’s finding that the defendant’s

misappropriation of the plaintiff’s name and image in advertising violated § 1B, but reversing
separate damages award for lack of supporting evidence). It is clear from the summary judgment
record that Orange Lantern’s reposting of publicly available images of Plaintiffs did not involve any
private information about Plaintiffs or intrude on their solitude or seclusion. Orange Lantern is,
therefore, entitled to summary judgment on Plaintiffs’ invasion of privacy claims brought pursuant
to § 1B (Count IV).
(b) Unauthorized Use of Individual’s Name, Portrait, or Picture
“[T]he interest protected [by Massachusetts General Laws c. 214, § 3A] ‘is the interest in
not having the commercial value of one’s name, portrait or picture appropriated to the benefit of
another.’” Tedeschi-Freij, 172 N.E.3d at 779 (quoting Tropeano v. Atlantic Monthly Co., 400 N.E.2d 847,
850 (Mass. 1980)). This is a personal interest and only plaintiffs domiciled in Massachusetts may
invoke the protection provided by § 3A. Bi-Rite Enterprises Inc. v. Bruce Miner Co., Inc., 757 F.2d 440,
444 (1st Cir. 1985) (stating § 3A did not apply to claims brought by individuals and entities not

domiciled in Massachusetts). Since Plaintiffs are all domiciled outside of Massachusetts, summary
judgment on Plaintiffs’ § 3A claims must enter in favor of Orange Lantern.
(c) Defamation (Count VIII)
“To withstand a motion for summary judgment on a defamation claim, a plaintiff must
have a reasonable expectation of proving four elements: first, the defendant made a statement, of
and ‘concerning the plaintiff, to a third party’; second, the ‘statement could damage the plaintiff’s
reputation in the community’; third, the defendant was at fault for making the statement; and
fourth, the statement caused economic loss or, in four specific circumstances, is actionable without
economic loss.” Scholz v. Delp, 41 N.E.3d 38, 45 (Mass. 2015). A plaintiff must also be able to
establish that the defendant’s statement was “one of fact rather than opinion” because “a statement
that does not contain ‘objectively verifiable facts’ is not actionable.” Scholz, 41 N.E.3d at 45.

“[W]hether a communication is reasonably susceptible of a defamatory meaning . . . is a question of
law for the court[,]” but if it “is susceptible of both a defamatory and nondefamatory meaning, a
question of fact exists for the jury.” Phelan v. May Dept. Stores Co., 819 N.E.2d 550, 554 (Mass. 2004)
(internal quotations omitted).
“A communication is susceptible to defamatory meaning if it would tend to injure the
plaintiff’s reputation, or hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of
any considerable and respectable segment in the community.” Damon v. Moore, 520 F.3d 98, 103 (1st
Cir. 2008) (internal quotations omitted). If the allegedly defamatory statement “may prejudice the
plaintiff’s profession or business,” the plaintiff is not required to prove economic loss and “may
recover noneconomic losses, including emotional injury and damage to reputation.” Ravnikar v.
Bogojavlensky, 782 N.E.2d 508, 511 (Mass. 2003). Additionally, “[a]n undamaged plaintiff may
recover nominal damages.” Id.
Plaintiffs assert the Facebook postings were defamatory because they falsely implied that

Plaintiffs had agreed to be associated with Magic Lantern and that they need not establish an
economic loss because such an association disparaged them in their profession. As a matter of law,
the court agrees that the postings were “reasonably susceptible of a defamatory meaning.” The
presence (or absence) of an affiliation between Plaintiffs and Magic Lantern is a fact that can be
objectively verified, and a false statement of an affiliation between a model and a strip club may
injure the model’s reputation with a significant segment of the community. See Morrell v. Forbes, Inc.,
603 F. Supp. 1305, 1307 (D. Mass. 1985) (finding a photograph of an individual was susceptible of
a defamatory meaning when context suggested the individual might have a connection with
organized crime). However, the court also finds the postings were equally susceptible of other
interpretations that did not imply any verifiable fact, much less a defamatory one. Since there is a
factual question regarding the meaning of the Facebook postings, the court denies both parties’

motions for summary judgment as to Plaintiffs’ defamation claims (Count VIII).
(d) Negligence (Count IX)
“To prevail on a negligence claim, a plaintiff must prove that the defendant owed the
plaintiff a duty of reasonable care, that the defendant breached this duty, that damage resulted, and
that there was a causal relation between the breach of the duty and the damage.” Williams v. Steward
Health Care System, LLC, 103 N.E.3d 1192, 1196 (Mass. 2018) (internal quotations omitted). “[T]he
existence of a duty is a question of law, and is thus an appropriate subject of summary judgment.”
Jupin v. Kask, 849 N.E.2d 829, 835 (Mass. 2006). Though Plaintiffs contend that they are entitled to
summary judgment on their negligence claims, they have not identified any duty of care owed to
Plaintiffs by Orange Lantern, or Couto, let alone one breached by the Facebook postings. Orange
Lantern is, therefore, entitled to summary judgment on Plaintiffs’ negligence claims.
(e) Unjust Enrichment (Count XI) and Quantum Meruit (Count XII)
Though Plaintiffs have separately asserted claims for unjust enrichment and quantum

meruit, the court treats these two claims together because, under Massachusetts law, these quasi-
contract claims “are treated similarly and have the same elements.” SAR Grp. Ltd. v. E.A. Dion, Inc.,
947 N.E.2d 1154 (Mass. App. Ct. 2011) (unpublished opinion); see also Mike Glynn & Co. v. Hy-Brasil
Restaurants, Inc., 914 N.E.2d 103, 107 (Mass. App. Ct. 2009). To recover under these theories, “a
plaintiff must prove that (1) it conferred a measurable benefit upon the defendant; (2) it reasonably
expected compensation from the defendant; and (3) the defendant accepted the benefit with the
knowledge, actual or chargeable, of the plaintiff’s reasonable expectation.” Stewart Title Guar. Co. v.
Kelly, 146 N.E.3d 1142, 1151 (Mass. App. Ct. 2020); see also Mike Glynn, 914 N.E.2d at 107. “The
fact that a person has benefited from another ‘is not of itself sufficient to require the other to make
restitution therefore.” Liss v. Studeny, 879 N.E.2d 676, 682 (Mass. 2008) (internal quotations
omitted). An award of damages is only warranted when a person’s reasonable expectations have

been defeated by “unjust enrichment of one party and unjust detriment to the other party.” Id. In
this case, there is no evidence that Plaintiffs had knowledge of Magic Lantern or its Facebook page,
let alone that they had a reasonable expectation of compensation from Orange Lantern. Summary
judgment will enter as to Plaintiffs’ unjust enrichment and quantum meruit claims (Counts XI and
XII).

4. Statute of Limitations
Having denied both parties’ motions for summary judgment as to Plaintiffs’ defamation
claims, the court turns to Defendants’ arguments that Orange Lantern is entitled to summary
judgment as to the subset of defamation claims based on images posted to Magic Lantern’s
Facebook page more than three years before Plaintiffs filed their original complaint on July 1, 2019.
“[A]n action for defamation must be ‘commenced only within three years next after the cause of
action accrues.’” Harrington v. Costello, 7 N.E.3d 449, 453 (Mass. 2014) (quoting Mass. Gen. Laws

c. 260, § 4). The statute of limitations for defamation claims generally begins to run on the date the
defamatory statement is published, unless the discovery rule applies. Id. at 453-54. Under the
discovery rule, “where a plaintiff has suffered an ‘inherently unknowable’ wrong,” a cause of action
for defamation does not accrue until the plaintiff knows or has sufficient notice that they were
harmed and that the defendant’s conduct caused the harm. Id. at 454. Plaintiffs contend that
because their images were posted to Magic Lantern’s Facebook page, rather than published in a
widely-available newspaper, the discovery rule should apply to toll the statute of limitations from
the date an image was posted through the date when Plaintiffs learned, or should have learned,
about the posting. They made a similar argument to another court in this district and that court
certified a question to the SJC regarding how the discovery rule should apply to defamation claims
based on social media postings. Davalos, 2023 WL 8703557. As application of the discovery rule is a

question of state law, this case will be stayed until the SJC provides a response to the certified
question.

III. CONCLUSION
For the reasons set forth above, Defendants’ motions to exclude Plaintiffs’ experts (Dkt.
Nos. 60 and 61) are DENIED; Plaintiffs’ Motion for Summary Judgment (Dkt. No. 62) is
DENIED; and Defendants’ Motion for Summary Judgment (Dkt. 59) is DENIED as to Plaintiffs’
defamation claims (Count VIII) and ALLOWED as to Plaintiffs’ Lanham Act claims (Counts I and
II), Chapter 93A claims (Count VII), Section 1B and 3A claims (Counts IV and V), negligence
claims (Count IX), and equitable, quasi-contract claims (Counts XI and XII). Additionally, because
a question has been certified to the SJC regarding how the Massachusetts discovery rule should
apply to Plaintiffs’ defamation claims based on Facebook postings made more than three years
before they filed their original complaint, this case is stayed. Counsel for Plaintiffs shall notify this
court, in writing, within ten days after the question certified in Davalos is answered or an alternative
resolution is reached in Davalos.

It is So Ordered.

_/s/ Mark G. Mastroianni________
MARK G. MASTROIANNI
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10201815. Public record. Not legal advice.