Plaintiffs are 31 professional models, actresses, and social media influencers who each earn a living promoting and licensing their image, likeness, and/or identity (collectively, “Image”) to select clients, commercial brands, and media and entertainment outlets, which rely on Plaintiffs to promote, endorse, and sponsor agreed-to goods and services. Plaintiff filed a lawsuit against Orange Lantern, Inc. and Mark Pessolano, alleging violations of the Lanham Act.
Orange Lantern previously operated the Magic Lantern night club and Pessolano was one Orange Lantern’s owners. Plaintiffs have alleged that Defendants posted images of Plaintiffs to Magic Lantern’s Facebook page between July 16, 2012, and November 21, 2018, without their consent or knowledge, making Defendants liable.
Plaintiffs retained Stephen Chamberlin as the Image Consulting and Valuation Expert Witness and Thomas Maronick as the Marketing Expert Witness in this case. Defendant filed a motion to exclude the expert opinions of both Chamberlin and Maronick which the Court subsequently denied.
Both parties also filed motions for summary judgment, each side arguing that there were no disputes of material fact and asserting entitlement to judgment as a matter of law.
Image Consulting and Valuation Expert Witness
Stephen Chamberlin has over thirty years of experience as an agent for professional models and has negotiated numerous contracts for models to appear in advertising. He served in leadership roles at prominent talent agencies including LA Models Management, Warning Management Inc., and Michele Pommier Models. Chamberlin has also represented high-profile celebrity models and talent including Tyra Banks, Claudia Schiffer, and Paris Hilton.
Marketing Expert Witness
Thomas Maronick is an Emeritus Professor of Marketing at Towson University College of Business and Economics where he taught marketing, strategy, and research courses from 1987 to 2017. He also held faculty positions at the University of Baltimore School of Business and Virginia Commonwealth University. Maronick served as the Director of the Office of Impact Evaluation at the Federal Trade Commission from 1980 to 1997. Since 1997, he has worked as a marketing consultant and expert witness, providing services in over 150 cases involving consumer litigation, advertising, trademarks, and survey research.
Discussion by the Court
Chamberlin testified about the rates the Plaintiff would have charged to appear on the Facebook postings. Maronick analyzed the consumer confusion created by the social media postings.
Plaintiffs contended that the opinions offered by Chamberlin and Maronick met the admissibility requirements of Rule 702, and Defendants’ arguments, while framed as objections to methodology, actually concerned questions of weight and credibility that could not be resolved at summary judgment.
Motion to Strike Chamberlin
When the Defendant argued that Chamberlin lacked professional experience negotiating contracts with strip clubs, the Court noted that Chamberlin’s professional background qualified him to opine considering he has negotiated numerous contracts for models to appear in advertising. Moreover, Plaintiffs did not agree to license their images to any strip clubs during the relevant period.
Chamberlin admitted that he did not apply an objective formula to arrive at his opinions but asserted that the methods he used were still reliable. Defendants did not dispute that modeling contracts were negotiated based on an individualized balancing of multiple criteria. Chamberlin listed the criteria he used and explained various assumptions he made when negotiating rates for individual models to appear in specific advertising. It was clear that Chamberlin had reviewed the posted images, spoke with each of the Plaintiffs, and reviewed the Plaintiff’s work history before reaching his opinions.
Court’s Ruling on the Motion to Strike Chamberlin
The Court held that objections to the accuracy of Chamberlin’s statements about the criteria he considered 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 did not warrant his disqualification at this stage of the litigation.
Motion to Strike Maronick
The Court deemed Marketing Expert Witness Maronick more than qualified to design and conduct consumer surveys and interpret the results.
He designed an online survey that could administer to “a sample of consumers in the target market for gentlemen’s clubs in Massachusetts” and used it to determine the perceptions of consumers regarding women shown in social media postings by the Magic Lantern.
Specifically, the survey aimed to ascertain whether the women had any affiliation with the club, approved the use of their images, were paid for the use of their images by the Magic Lantern Club, and participated in some or any of the events or activities at the Magic Lantern Club.
Maronick listed the following conclusions:
- 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; - consumers are likely to believe that women shown in ads posted by the Magic Lantern have agreed to endorse or sponsor the Magic Lantern, have a connection with the Magic Lantern, have approved the use of their images, have been paid to promote the Magic Lantern, and have participated in activities at the Magic Lantern
- 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
Court’s Ruling on the Motion to Strike Maronick
The Court held that Marketing Expert Witness Maronick designed the survey and administered it in a way that gathered data consistent with the limited scope of the inquiry. The Court found Maronick’s opinions to be within the scope of the inquiry and well-supported by the survey data.
Defendants were free to take up any objections they had with regard to Maronick’s survey data at trial but the Court found no basis to exclude Maronick’s testimony.
The Court denied Plaintiff’s motion for summary judgment but granted in part and denied in part the Defendant’s motion for summary judgment.
Held
The Court denied the Defendant’s motions to exclude the testimony of Stephen Chamberlin and Thomas Maronick.
The Court stayed the case because it certified a question to the Massachusetts Supreme Judicial Court (“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.
Key Takeaways:
- Reliability: The Court considered Chamberlin’s methods, although lacking an objective formula reliable due to his thoroughness in considering various criteria and reviewing relevant facts. The Court also deemed Maronick’s survey methodology and conclusions consistent with the limited scope of the inquiry and well-supported by the survey data.
- Qualifications: The Court held that Chamberlin’s background negotiating numerous contracts for models to appear in advertising was relevant.
Case Details:
| Case Caption: | Ratchford Et Al V. Orange Lantern, Inc. Et Al |
| Docket Number: | 3:19cv30092 |
| Court: | United States District Court, Massachusetts |
| Citation: | 2024 U.S. Dist. LEXIS 44136 |
| Order Date: | March 13, 2024 |
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