Colossus Media, LLC v. Adalytics Research, LLC

Filing 24

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/5/2025. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
COLOSSUS MEDIA, LLC
:
v.

:

Civil Action No. DKC 24-1402

:
ADALYTICS RESEARCH, LLC
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this false
advertising and defamation case brought by Plaintiff Colossus
Media, LLC (“Colossus” or “Plaintiff”) against Defendant Adalytics
Research, LLC (“Adalytics” or “Defendant”) is the motion to dismiss
filed by Defendant.

(ECF No. 19).

The issues have been briefed,

and the court now rules, no hearing being deemed necessary.
Rule 105.6.

Local

For the following reasons, the motion to dismiss will

be denied.
I.

Background 1
Plaintiff “is a sell-side platform (“SSP”) that provides

advertisers of all sizes a programmatic advertising platform that
automates the sale of ad[vertisement (“ad”)] inventory between
advertisers and agencies leveraging proprietary technology.”

1

(ECF

The following facts are set forth in the amended complaint
and construed in the light most favorable to Plaintiff.

No. 9 ¶ 1). Plaintiff’s parent company is Direct Digital Holdings,
Inc. (“DRCT”).

(ECF No. 9 ¶ 1).

“Publishers

auction

advertising

space

on

their

websites

through SSPs like Colossus SSP. Large brands and other advertisers
buy advertising space through DSPs [demand side platforms].”
No. 9 ¶ 11).

(ECF

Plaintiff “transacts with DSPs to deliver ad

inventory to target audiences.

Advertisers want to ensure that

their ads are going to their respective target audiences.

To

ensure that ads are served to the buyer’s target audience, SSPs
and

DSPs

use

cookie-based

categorize consumers.” 2
Plaintiff

alleges

user

IDs

to

identify,

track,

and

(ECF No. 9 ¶ 12).
that

this

process

happens

“extremely

quickly-in less than half a second-and on a massive scale.”

2

(ECF

Plaintiff provides the following example to illustrate this
technical process:
Person A visits ESPN’s website on his laptop. Person A
is associated with a sports audience segment, and the
internet browser declares a user ID for Person A that is
sent to an SSP. The advertising space on the ESPN webpage
that Person A is viewing is effectively for auction or
sale, and the SSP sends a request for bids on that ad
space to a DSP. To send the bid request, the SSP matches
Person A’s user cookie ID with a DSP user ID within the
parameters of the DSP’s targeted sports audience
segment. Based on the match between the SSP user ID and
the corresponding DSP user ID within the targeted sports
segment, the DSP then bids on the ad space on behalf of
the brand. The brand’s ad then appears on the ESPN
website that Person A is viewing.
(ECF No. 9 ¶ 12).
2

No. 9 ¶ 13).

Plaintiff transacts with several DSPs, some directly

and others indirectly.
Plaintiff’s

“business

(ECF No. 9 ¶ 14).
comes

from

The majority of

transactions

with

DSPs

that

Colossus SSP sends through . . . [a company called] BidSwitch, an
intermediary that helps connect SSPs with DSPs.”

(ECF No. 9 ¶

14). When Plaintiff used an intermediary such as BidSwitch, “there
is an additional layer of ID matching.”

(ECF No. 9 ¶ 14).

One of the DSPs Plaintiff transacts with through BidSwitch is
a DSP called The Trade Desk (“Trade Desk”).

(ECF No. 9 ¶ 14).

Plaintiff describes this process as follows:
[W]hen Person A visits the ESPN website, and the
browser-declared user cookie ID for Person A is
associated with a sports segment and sent to Colossus
SSP, instead of matching Person A’s user cookie ID with
a DSP user ID such as a Trade Desk ID (“TDID”), Colossus
SSP matches the user cookie ID with a BidSwitch ID.
BidSwitch then matches the BidSwitch user ID with a user
ID on the DSP side. This matched user ID on the DSP side
may or may not be a TDID depending on which DSPs
BidSwitch decides to send the bid request to. Colossus
SSP has no control or knowledge of the DSPs to which
BidSwitch sends a particular bid request, the DSP user
IDs, or the value of any particular DSP user ID.
(ECF No. 9 ¶ 14).
Plaintiff alleges that Defendant “is a for-profit company
that purports to conduct advertising analytics to serve brands and
advertisement buyers.”

(ECF No. 9 ¶ 16).

“Adalytics provides so-

called analysis on digital advertising performance and advertising
technology

vendors,

publishers,

serve advertisements.

and

campaigns

that

improperly

Advertisement buyers pay Adalytics for
3

information

on

ad

improperly

serve

technology

their

vendors

and

advertisements.”

publishers

(ECF

No.

9

that

¶

17).

Plaintiff alleges that Defendant “acknowledges that its posts are
generated to advertise its services, stating: ‘Like many other
companies,

we

release

thought

leadership

on

systemic

issues

affecting brands and their media investments . . . to . . . attract
new clientele.’”

(ECF No. 9 ¶ 18).

Plaintiff further alleges that “Adalytics’ business thrives
on creating distrust between advertiser buyers and advertising
technology vendors and products. Adalytics is known for publishing
inflammatory blog posts regarding advertising technology vendors
and products for the purpose of winning new advertiser customers.”
(ECF No. 9 ¶ 19).
In May 2024, several reporters reached out to Plaintiff about
an advance copy of a blog post about Plaintiff the reporters
received from Defendant.

(ECF No. 9 ¶ 20).

“Based on the limited

information that the reporters provided to Colossus SSP about the
post, Colossus SSP knew that Adalytics’ post contained false and
inaccurate information about Colossus SSP.”

(ECF No. 9 ¶ 20).

Plaintiff contends that Plaintiff and its parent company
reached out to Defendant on May 8 and May 9, 2024, to tell Defendant
that its post “contained false and inaccurate statements.”
No. 9 ¶ 21).

(ECF

Plaintiff and its parent company asked for a copy of

the post to allow Plaintiff to give Defendant information to
4

correct these false statements.

(ECF No. 9 ¶ 21).

Plaintiff and

its parent company also notified Defendant “that they were prepared
to provide all the facts and information establishing Adalytics’
post was false.”

(ECF No. 9 ¶ 21).

Plaintiff alleges that

Defendant refused to provide Plaintiff with a copy of the post
prior to publishing it, and Defendant also refused to speak with
Plaintiff before Defendant published the post.

(ECF No. 9 ¶ 22).

On May 10, 2024, Defendant published the blog post: “Are user
IDs declared consistently in ad auctions?” on its website.
No. 9 ¶ 23).

(ECF

Plaintiff contends that “[t]he post makes false and

misleading statements about Colossus SSP and its business to
instill distrust of Colossus SSP and other ad technology products
among ad buyers and other ad technology vendors for the purpose of
winning new business from ad buyers.”

(ECF No. 9 ¶ 23).

Plaintiff

alleges that “[t]he post portrayed Colossus SSP as mis-declaring
user IDs in its bid requests for the purpose of selling ad space
at higher prices to ad buyers seeking to serve advertisements to
a targeted audience.”

(ECF No. 9 ¶ 24).

Specifically, Plaintiff

alleges that:
[i]n the post, Adalytics purported to analyze and
compare advertisements and bid responses on the Trade
Desk DSP through 16 different SSPs, including Colossus
SSP, in order to match the TDID declared by the SSP in
its bid request and the actual cookie TDID stored in the
user’s browser. The post concluded that Colossus SSP is
the
only
SSP
for
which
there
were
consistent
misdeclarations of user IDs—that is, the TDID declared
by Colossus SSP in its bid request did not match the
5

user’s actual cookie TDID. The post further concluded
that for the other fifteen SSPs, the TDID declared by
the SSP “always perfectly” matched the user’s actual
cookie TDID.
(ECF No. 9 ¶ 25).
Plaintiff

contends

that

these

statements

“are

false

and

misleading” because Plaintiff “does not mis-declare or otherwise
manipulate or alter user IDs in its bid requests.”
26).

(ECF No. 9 ¶

Plaintiff alleges that “it is not possible for Colossus SSP

to mis-declare a user’s TDID because Colossus SSP connects to Trade
Desk through BidSwitch and has no control or knowledge of whether
BidSwitch sends a particular bid request to Trade Desk or another
DSP.”

(ECF No. 9 ¶ 26).

Further, “[e]ven if BidSwitch sends a

bid request to Trade Desk, Colossus SSP has no knowledge of the
TDIDs or the values associated with those TDIDs.”

(ECF No. 9 ¶

26).
Although

Defendant’s

post

acknowledged

that

Plaintiff

“connected to Trade Desk through BidSwitch,” the post “concluded
that the mis-declared user TDIDs in Colossus SSP’s bid requests
were unrelated to BidSwitch.”

Additionally, the amended complaint

alleges that the post falsely found that for the other fifteen
SSPs that transact with Trade Desk that Defendant studied,
the TDID declared by the SSP in its bid response ‘always
perfectly’ matched the TDID in the user’s browser. The
post further stated that there were no technical
explanations for the mis-declared user IDs in Colossus
SSP
bid
requests,
furthering
the
post’s
false,

6

defamatory, and disparaging conclusion that Colossus SSP
mis-declared user TDIDs.
(ECF No. 9 ¶ 27).

Additionally, Plaintiff alleges that “[t]he

post falsely defines Colossus SSP’s activity as ‘Sophisticated
Invalid Traffic’ or ‘[c]ookie stuffing, recycling or harvesting
(inserting,

deleting

or

misattributing

cookies

thereby

manipulating or falsifying prior activity of users).’”

(ECF No.

9 ¶ 32).
Plaintiff contends that “there were discrepancies between the
TDID sent in the bid response and the TDID in the user’s browser
for transactions between Trade Desk and other SSPs that connect to
Trade Desk through an intermediary.”
alleges

upon

information

and

(ECF No. 9 ¶ 28).

belief

Defendant

Plaintiff

“doctored”

a

screenshot in its post to illustrate a lack of discrepancies for
a different SSP.

(ECF No. 9 ¶¶ 29-30).

Plaintiff alleges upon information and belief that Defendant
“actively

worked

to

amplify

these

false

statements

in

the

marketplace in an attempt to destroy Colossus SSP’s business and
reputation.”

(ECF No. 9 ¶ 31).

Plaintiff alleges that Defendant

acted with knowledge because “[a]s a company that claims expertise
in advertising technology and programmatic advertising, Adalytics
would be well aware that Colossus SSP, because its transactions
occur within fractions of a second and go through an intermediary,

7

could not systematically ‘fake’ TDIDs to generate more revenue, as
the Adalytics post states and/or implies.”
Plaintiff

contends

that

Defendant

(ECF No. 9 ¶ 33).
acted

with

malice

by

distributing the post to the media without asking Plaintiff for an
explanation.

(ECF No. 9 ¶ 35).

Plaintiff alleges that this

demonstrated that Defendant’s “only goal was to spark demand for
its ‘ad transparency’ services by creating a media firestorm” about
Plaintiff.

(ECF No. 9 ¶ 35).

Several media outlets published articles based on Defendant’s
post.

Plaintiff contends that the “articles further demonstrate

the defamatory meaning of the Adalytics post: that Colossus SSP
misdeclared user IDs in its bid requests for the purpose of
increasing its sales.”

(ECF No. 9 ¶ 36).

Plaintiff alleges that Defendant’s post “has caused massive
harm to Colossus SSP’s business and reputation and threatens its
very existence.”

(ECF No. 9 ¶ 42).

Plaintiff alleges that on or

about May 8 or 9, 2024, after Defendant shared an advanced copy of
the post with the media, “on May 9, 2024, Trade Desk suspended
business with Colossus SSP because of the post’s claims that
Colossus SSP misrepresented user IDs in its bid requests.”

(ECF

No. 9 ¶ 43). Additionally, several hours after Defendant published
the post on May 10, 2024, BidSwitch suspended Plaintiff from its
platform because of the claims in Defendant’s post.

This caused

Plaintiff “significant financial harm” because “the majority of
8

Colossus SSP’s revenue . . . comes from transactions through
BidSwitch.”

(ECF No. 9 ¶ 44).

Lastly, Plaintiff alleges that

in addition to the financial harm, Defendant’s post has damaged
Plaintiff’s “reputation and goodwill by accusing Colossus SSP of
engaging in fraudulent activity and impeaching Colossus SSP’s
honesty, integrity, and core business.”

(ECF No. 9 ¶ 45).

Plaintiff filed a complaint against Defendant on May 14, 2024
for violations of 15 U.S.C. § 1125 (“the Lanham Act”), as well as
defamation and injurious falsehood under Maryland law.
1).

(ECF No.

On June 3, 2024, Plaintiff filed an amended complaint.

No. 9).

(ECF

Plaintiff asserts federal question jurisdiction and

supplemental jurisdiction over the state law claims, and Plaintiff
also asserts diversity jurisdiction.

On July 3, 2024, Defendant

filed a motion to dismiss the amended complaint.

(ECF No. 19).

On July 31, 2024, Plaintiff filed a response in opposition to
Defendant’s motion to dismiss.

(ECF No. 22).

On August 14, 2024,

Defendant filed a reply in support of its motion to dismiss.

(ECF

No. 23).
II.

Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure

12(b)(6) tests the sufficiency of the complaint.

Presley v. City

of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).

“[T]he

district court must accept as true all well-pleaded allegations
and draw all reasonable factual inferences in plaintiff’s favor.”
9

Mays v. Sprinkle, 992 F.3d 295, 299 (4th Cir. 2021).

A plaintiff’s

complaint needs only satisfy the standard of Rule 8(a)(2), which
requires a “short and plain statement of the claim showing that
the pleader is entitled to relief.”
facts

do

not

permit

the

court

to

“[W]here the well-pleaded
infer

more

than

the

mere

possibility of misconduct, the complaint has alleged—but it has
not ‘show[n]’—‘that the pleader is entitled to relief.’”

Ashcroft

v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
A Rule 8(a)(2) “showing” requires “stat[ing] a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550

“A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the
reasonable inference that defendant is liable for the misconduct
alleged.”
663).

Mays, 992 F.3d at 299-300 (quoting Iqbal, 556 U.S. at

Legal

conclusions

couched

as

factual

allegations

are

insufficient, Iqbal, 556 U.S. at 678, as are conclusory factual
allegations devoid of any reference to actual events, United Black
Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
III. Analysis
Plaintiff’s amended complaint has three counts: federal false
advertising and unfair competition under the Lanham Act (Count I),
defamation (Count II), and injurious falsehood (Count III).
No. 9).

(ECF

In its motion to dismiss, Defendant argues that Plaintiff

10

has failed to state a claim for each of these counts.

(ECF No.

19).
A. Exhibits
Defendant attaches several exhibits to its motion to dismiss:
the

blog

post,

email

Plaintiff

and

Defendant, and an article written based on Defendant’s post.

(ECF

Nos. 19-2; 19-3; 19-4).

correspondence

between

Defendant argues that the court should

consider the exhibits when resolving the motion to dismiss 3 because
all three exhibits are “integral to the complaint,” and “there can
be no dispute” as to the post’s authenticity, the correspondence
is authentic, and “there can be no dispute” as to the authenticity
of the article.

(ECF No. 19-1, at 7 n.1, 8 n.2, 15 n.5).

Plaintiff argues that the court should not consider the
exhibits.

Plaintiff contends that while the blog post is integral

to its complaint, there is a dispute regarding the authenticity of
the version presented by Defendant.

3

Plaintiff alleges that the

In the alternative, Defendant argues that the court should
treat the motion to dismiss as a motion for summary judgment. (ECF
No. 23, at 19). Under Fed. R. Civ. P. 12(d), a court may convert
a motion to dismiss into a motion for summary judgment and consider
outside documents. “The court should not make such a conversion
where the parties are not given notice and are not afforded the
opportunity to conduct reasonable discovery.” Aegis Bus. Credit,
LLC v. Brigade Holdings, Inc., No. 8:21-CV-00668-AAQ, 2022 WL
3716543, at *5 (D.Md. Aug. 29, 2022) (citing Carter v. Baltimore
Cty., Maryland, 39 Fed.Appx. 930, 932-33 (4th Cir. 2002)).
Defendant raises this argument in its Reply.
Accordingly,
Plaintiff has not been given adequate notice, and the court will
not convert the motion to dismiss into a motion for summary
judgment.
11

version attached to the complaint is just one version of several
versions that Defendant provided to third parties.
at 27-28).

(ECF No. 22,

Additionally, Plaintiff argues that the correspondence

and article are not integral to the complaint, and Plaintiff
disputes

the

authenticity

of

the

correspondence

“contains several redactions and is incomplete.”

because

it

(ECF No. 22, at

27).
“As a general rule, the court does not consider extrinsic
evidence at the motion to dismiss stage[.]”

Faulkenberry v. U.S.

Dep’t of Def., 670 F.Supp.3d 234, 249 (D.Md. 2023) (quoting Reamer
v. State Auto. Mut. Ins. Co., 556 F.Supp.3d 544, 549 (D.Md. 2021),
aff’d, No. 21-2432, 2022 WL 17985700 (4th Cir. Dec. 29, 2022)).
“However, ‘the court may consider, without converting the motion
to dismiss into one for summary judgment, documents attached to
the complaint as exhibits, and documents attached to a motion to
dismiss if the document is integral to the complaint and there is
no dispute about the document’s authenticity.’”

Faulkenberry, 670

F.Supp.3d at 249 (quoting Reamer, 556 F.Supp.3d at 549).

“A

document is integral to the complaint if its very existence, and
not the mere information it contains, gives rise to the legal
rights asserted.”

Faulkenberry, 670 F.Supp.3d at 249 (quoting

Reamer, 556 F.Supp.3d at 549) (internal quotation marks omitted).
As

discussed

above,

there

is

a

dispute

regarding

the

authenticity of the post and the correspondence, and the article
12

is not integral to the complaint.

Therefore, at the motion to

dismiss stage, the court will not consider the documents outside
of the complaint.
B. Count I: Lanham
Competition

Act

False

Advertising

and

Unfair

Plaintiff alleges that Defendant violated the Lanham Act by
making “false and misleading statements in commercial advertising
and promotion.”

(ECF No. 9 ¶ 47).

Further, Plaintiff alleges

that these statements “were made in an effort to damage Colossus
SSP’s business and reputation for the purpose of selling Adalytics’
services and winning new business from ad buyers.”
48).

Plaintiff

alleges

that

the

“statements

(ECF No. 9 ¶

are

false

and

misleading descriptions of fact that have or are likely to cause
confusion, mistake, or deception and misrepresented the nature,
characteristics, and qualities of Colossus SSP’s business and the
services that it offers.”

(ECF No. 9 ¶ 49).

Plaintiff contends

that the “statements have materially influenced, or are likely to
materially influence, purchasing decisions because publishers, ad
buyers, and ad technology vendors are misled to incorrectly believe
that Colossus SSP is disreputable, is untrustworthy, and employs
fraudulent business practices when it does not.”
50).

(ECF No. 9 ¶

Lastly, Plaintiff alleges that the false statements “have

caused and will continue to cause the loss of goodwill and the
loss of current and prospective customers and industry partners.”
(ECF No. 9 ¶ 52).
13

Defendant argues that Plaintiff has failed to state a claim
under the Lanham Act because the blog post is not commercial speech
required for commercial advertising or promotion under the Lanham
Act, Plaintiff did not adequately allege that the post proximately
caused its damages, and Plaintiff failed to identify any false or
misleading description of fact.

(ECF No. 19-1, at 7-15).

In relevant part, the Lanham Act provides that:
(1) 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-. . . .
(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).
The United States Court of Appeals for the Fourth Circuit has
held that:
[A] plaintiff asserting a false advertising claim under
the Lanham Act must establish that:
(1) the defendant made a false or misleading
description of fact or representation of fact in a
commercial advertisement about his own or another’s
product; (2) the misrepresentation is material, in
that it is likely to influence the purchasing
decision;
(3) the
misrepresentation
actually
deceives or has the tendency to deceive a
14

substantial segment of its audience; (4) the
defendant placed the false or misleading statement
in interstate commerce; and (5) the plaintiff has
been or is likely to be injured as a result of the
misrepresentation, either by direct diversion of
sales or by a lessening of goodwill associated with
its products.
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 272 (4th Cir.
2002) (citations omitted).

The parties dispute whether Plaintiff

has alleged the first and fifth elements.
1. Commercial Advertisement
“The Lanham Act does not define ‘commercial advertising or
promotion.’ And neither the Supreme Court nor [the Fourth Circuit]
has determined how to assess whether a communicative message is
commercial advertising or promotion.”

Handsome Brook Farm, LLC v.

Humane Farm Animal Care, Inc., 700 F.App’x 251, 256 (4th Cir. 2017),
cited approvingly in De Simone v. VSL Pharmaceuticals, Inc., 36
F.4th 518, 532 (4th Cir. 2022).

In Handsome Brook Farm, the court

cited to multiple other circuit courts that adopted all four
factors defining commercial advertisement set out in Gordon &
Breach Science Publishers v. Am. Institute of Physics, 859 F.Supp.
1521, 1536 (S.D.N.Y. 1994).
256.

Handsome Brook Farm, 700 F.App’x at

The Handsome Brook Farm panel ultimately agreed with the

Sixth Circuit and adopted three of the four factors, stating that
commercial advertisement under the Lanham Act is (1) “commercial
speech” (2) “for the purpose of influencing consumers to buy goods
or services” and “while the representation need not be a classic
15

advertising campaign, but may include more informal types of
promotion,

the

representations

disseminated

to

the

relevant

[(3)]

purchasing

must

be

public

advertising or promotion within that industry.”

sufficiently
to

constitute

Handsome Brook

Farm, 700 F.App’x at 256 (first quoting Gordon & Breach Sci.
Publishers,

859

F.Supp.

at

1536);

and

then

citing

Grubbs

v.

Sheakley Grp., Inc., 807 F.3d 785, 800-01 (6th Cir. 2015)).
While Handsome Brook Farm is an unpublished opinion, the
Fourth Circuit cited Handsome Brook Farm in a later published
opinion, De Simone v. VSL Pharmaceuticals, Inc., 36 F.4th 518, 532
(4th Cir. 2022), and set out a summary of the test from Handsome
Brook Farm.
Act,

The Fourth Circuit stated that “[u]nder the Lanham

‘commercial

advertising

or

promotion’

is

‘commercial

speech . . . for the purpose of influencing consumers to buy goods
or services.’”

De Simone, 36 F.4th at 532 (quoting Handsome Brook

Farm, 700 F.App’x at 256).
The panel in Handsome Brook Farm stated:
Neither our precedent, nor the Supreme Court, has issued
any determinative standard by which to assess if a
message is commercial speech. The Supreme Court has
highlighted a handful of considerations, and our own
cases have been similarly context-specific. These
factors
are
all
illustrative,
but
none
are
determinative. A message may bear many of these
qualities yet not be commercial speech; and a message
may lack some of these qualities yet still be commercial
speech. The Supreme Court has identified three qualities
of
commercial
speech:
whether
the
message
is
economically motivated, promotes a specific product, and
is an advertisement. Bolger v. Youngs Drug Prods. Corp.,
16

463 U.S. 60, 66-67, 103 S.Ct. 2875, 77 L.Ed.2d 469
(1983). . . . Our own precedent has alluded to yet
another quality of commercial speech: whether the
message is “placed in a commercial context and [is]
directed at the providing of services rather than toward
an exchange of ideas.” Greater Balt. Ctr. for Pregnancy
Concerns, Inc. v. Mayor & City Council of Balt., 721
F.3d 264, 286 (4th Cir. 2013) (quoting Fargo Women’s
Health Org., Inc. v. Larson, 381 N.W.2d 176 (N.D. 1986),
cert. denied, 476 U.S. 1108, 106 S.Ct. 1957, 90 L.Ed.2d
365 (1986)).
Handsome Brook Farm, 700 F.App’x at 257–58.
In De Simone, the Fourth Circuit quoted Handsome Brook Farm,
finding that:
Speech is more likely commercial when the declarant
“hoped to realize an economic gain when disseminating
its message.” [Handsome Brook Farm, 700 F.App’x] at 258.
“When a message communicates both commercial and
noncommercial speech, it is treated like commercial
speech unless the commercial and noncommercial messages
are inextricably intertwined.” [Handsome Brook Farm, 700
F.App’x] at 261 (cleaned up).
De Simone, 36 F.4th at 532. 4
Plaintiff has alleged commercial speech under the detailed
framework set out in Handsome Brook Farm, as well as under the
framework set out in De Simone. Plaintiff asserts that Defendant’s
post was economically motivated because Plaintiff alleges that

4

In Riley v. National Federation of the Blind of North
Carolina, Inc., 487 U.S. 781 (1988), the case cited in Handsome
Brook Farm, the Court noted that where “the component parts of a
single speech are inextricably intertwined, we cannot parcel out
the speech, applying one test to one phrase and another test to
another phrase.” Id. at 796. Here, neither party analyzes whether
the post contains both commercial and noncommercial speech, and
whether those messages are inextricably intertwined.
17

“[a]dvertisement

buyers

pay

Adalytics

for

information

on

ad

technology vendors and publishers that improperly serve their
advertisements.”
that

Defendant

(ECF No. 9 ¶ 17).
“hoped

to

realize

Further, Plaintiff asserts
an

economic

gain”

because

Plaintiff alleges that “Adalytics acknowledges that its posts are
generated to advertise its services, stating: ‘Like many other
companies,

we

release

leadership

on

and

their

media

investments . . . to . . . attract new clientele.’”

(ECF No. 9 ¶

affecting

18).

thought

brands

systemic

issues

Plaintiff also alleges that Defendant’s “business thrives on

creating

distrust

between

advertiser

buyers

and

advertising

technology vendors and products. Adalytics is known for publishing
inflammatory blog posts regarding advertising technology vendors
and products for the purpose of winning new advertiser customers.”
(ECF No. 9 ¶ 19).
While Plaintiff does not contend that Defendant promotes a
specific product in the post itself, Plaintiff alleges that the
post serves as an advertisement for its product because Defendant
posts “inflammatory blog posts regarding advertising technology
vendors and products for the purpose of winning new advertiser
customers.”

(ECF No. 9 ¶ 19).

Accordingly, at this motion to dismiss stage, Plaintiff has
sufficiently alleged commercial speech.

Defendant does not argue

that Plaintiff fails to allege the other elements of a commercial
18

advertisement; accordingly, Plaintiff has sufficiently alleged
commercial advertisement.
2. False Statements of Fact
Plaintiff alleges that “[t]he post portrayed Colossus SSP as
mis-declaring user IDs in its bid requests for the purpose of
selling ad space at higher prices to ad buyers seeking to serve
advertisements

to

a

targeted

audience.”

(ECF

No.

9

¶

24).

Plaintiff further alleges that:
In the post, Adalytics purported to analyze and
compare advertisements and bid responses on the Trade
Desk DSP through 16 different SSPs, including Colossus
SSP, in order to match the TDID declared by the SSP in
its bid request and the actual cookie TDID stored in the
user’s browser. The post concluded that Colossus SSP is
the
only
SSP
for
which
there
were
consistent
misdeclarations of user IDs—that is, the TDID declared
by Colossus SSP in its bid request did not match the
user’s actual cookie TDID. The post further concluded
that for the other fifteen SSPs, the TDID declared by
the SSP “always perfectly” matched the user’s actual
cookie TDID.
(ECF No. 9 ¶ 25).

Plaintiff alleges that these statements “are

false and misleading.”

(ECF No. 9 ¶ 26).

Plaintiff states that

it “does not mis-declare or otherwise manipulate or alter user IDs
in its bid requests.”

Plaintiff contends that

it is not possible for Colossus SSP to mis-declare a
user’s TDID because Colossus SSP connects to Trade Desk
through BidSwitch and has no control or knowledge of
whether BidSwitch sends a particular bid request to
Trade Desk or another DSP. And even if BidSwitch sends
a bid request to Trade Desk, Colossus SSP has no
knowledge of the TDIDs or the values associated with
those TDIDs.

19

(ECF No. 9 ¶ 26).
Additionally, Plaintiff alleges that, while the post falsely
stated

that

for

the

other

fifteen

SSPs,

the

TDIDs

“‘always

perfectly’ matched the user’s actual cookie TDID,” “there were
discrepancies between the TDID sent in the bid response and the
TDID in the user’s browser for transactions between Trade Desk and
other SSPs that connect to Trade Desk through an intermediary.”
(ECF No. 9 ¶¶ 27-28).

Plaintiff alleges upon information and

belief Defendant “doctored” a screenshot in its post to illustrate
a lack of discrepancies for a different SSP.

(ECF No. 9 ¶¶ 29-

30).
Defendant argues that, taken in context of the full post, the
statements were not false or misleading.
19).

(ECF No. 19-1, at 17-

Defendant cites to multiple other parts of the post and

correspondence with Plaintiff to show that, when viewed as a whole,
the

post

does

not

misrepresenting user IDs.

accuse

Plaintiff

of

intentionally

(ECF Nos. 19-1, at 17-19; 23, at 6-9).

While Plaintiff also states that the post should be considered “in
its entirety” (ECF No. 22, at 8), Plaintiff did not attach the
post, and Plaintiff contends that there are several other versions
of the post.
Defendant is attempting to pursue summary judgment at the
motion to dismiss stage.

At the motion to dismiss stage, the

question is whether Plaintiff has plausibly alleged a false or
20

misleading statement in the complaint. As set out above, Plaintiff
has alleged that Defendant made a false or misleading statement in
its post.
3. Injury
Plaintiff alleges that after Defendant shared an advanced
copy of the post with the media on or about May 8 or 9, 2024, “on
May 9, 2024, Trade Desk suspended business with Colossus SSP
because of the post’s claims that Colossus SSP misrepresented user
IDs in its bid requests.”

(ECF No. 9 ¶ 43).

Additionally, several

hours after Defendant published the post on May 10, 2024, BidSwitch
suspended Plaintiff from its platform because of the claims in
Defendant’s post.

This caused Plaintiff “significant financial

harm” because “the majority of Colossus SSP’s revenue . . . comes
from transactions through BidSwitch.”

Lastly, Plaintiff alleges

that in addition to the financial harm, Defendant’s post has
damaged Plaintiff’s “reputation and goodwill by accusing Colossus
SSP of engaging in fraudulent activity and impeaching Colossus
SSP’s honesty, integrity, and core business.”

(ECF No. 9 ¶¶ 44-

45).
Defendant argues that Plaintiff has not sufficiently alleged
that Plaintiff’s injuries were proximately caused by Defendant’s
post.

(ECF No. 19, at 15).

Defendant cites one of the articles

published on May 10, 2024, that reported that Trade Desk had known
about the issues with Plaintiff for over a year. Defendant further
21

quotes the article, seemingly to suggest that BidSwitch suspended
relations with Plaintiff because Plaintiff implied BidSwitch was
at fault for the mismatched user IDS.

(ECF No. 19-1, at 16).

Defendant

Plaintiff’s

also

argues

that

despite

claim

that

Defendant’s post has damaged Plaintiff’s “reputation and goodwill
by accusing Colossus SSP of engaging in fraudulent activity,” the
post did not accuse Plaintiff of fraudulent activity.
19-1, at 16).
defamatory

(ECF No.

Lastly, Defendant argues that “any purportedly

statements

made

by

other

publications

addressed with those other publications.”

should

be

(ECF No. 19-1, at 16).

As discussed above, the court will not consider the article
at this motion to dismiss stage.

Moreover, Plaintiff has alleged

that Defendant’s post, and not just the other article, caused
Plaintiff injury.

Plaintiff alleged that Defendant gave the media

a copy of the post prior to publishing it, and Trade Desk suspended
business with Plaintiff on May 9, 2024, a day before the May 10,
2024, article was published.

(ECF No. 9 ¶ 43).

Therefore, at

this stage, Plaintiff has sufficiently alleged that Defendant
caused Plaintiff injury.

Accordingly, Plaintiff has plausibly

alleged a violation under the Lanham Act, and Defendant’s motion
to dismiss will be denied as to this claim.
C. Count II: Defamation
Plaintiff alleges that Defendant’s post was defamation under
Maryland law.

(ECF No. 9 ¶¶ 53-59).
22

Plaintiff alleges that

Defendant “published false statements to the public, actual and
prospective

customers

industry.”

(ECF No. 9 ¶ 54).

acted

“actual

with

of

Colossus

malice”

SSP,

and

members

of

the

Plaintiff alleges that Defendant

because

Defendant

“knew

that

its

statements were false and/or misleading based on its expertise in
advertising technology and programmatic advertising” and because
Plaintiff repeatedly informed Defendant that the post was false
before Defendant published the post.

(ECF No. 9 ¶ 58).

Plaintiff also alleges that “Adalytics’ false, misleading,
disparaging, and defamatory statements directly and proximately
injured Colossus SSP, causing the loss of customers and industry
partners and resulting in special damages, as well as the loss of
good will and reputational injury.”
Defendant

argues

that

(ECF No. 9 ¶ 59).

Plaintiff

has

failed

to

state

a

defamation claim under Maryland law because Plaintiff did not
allege

defamatory

statements.

(ECF

No.

19-1,

at

21).

Additionally, Plaintiff failed to allege properly that Defendant
had the required degree of fault to allege legal fault.

(ECF No.

19-1, at 22).
This court has previously stated:
Under Maryland law, a properly pleaded defamation claim
is accompanied by specific facts establishing the
following four elements: “(1) that the defendant made a
defamatory statement to a third person, (2) that the
statement was false, (3) that the defendant was legally
at fault in making the statement, and (4) that the
plaintiff thereby suffered harm.”
Piscatelli v. Van
23

Smith, 424 Md. 294, 306 (2012) (quoting Indep.
Newspapers, Inc. v. Brodie, 407 Md. 415, 441 (2009)).
Baker-Proctor v. PNC Bank, N.A., No. 21-CV-3299-DKC, 2023 WL
1801932, at *2 (D.Md. Feb. 7, 2023).

The parties dispute whether

Plaintiff has alleged the first and third elements.
For purposes of the first element, a “defamatory
statement” is one that tends to expose a person to
“‘public scorn, hatred, contempt, or ridicule,’” which,
as a consequence, discourages “‘others in the community
from having a good opinion of, or associating with, that
person.’” Brodie, 407 Md. at 441, 966 A.2d at 448
(quoting Offen [v. Brenner], 402 Md. [191] [] 198–99,
935 A.2d [719,] 724 (2007)).
Piscatelli, 424 Md. at 306.
As discussed above, Plaintiff has alleged that Defendant made
“false

and

misleading”

statements

“reputation and goodwill.”

that

damaged

Plaintiff’s

Plaintiff alleged that the “[t]he

post portrayed Colossus SSP as mis-declaring user IDs in its bid
requests for the purpose of selling ad space at higher prices to
ad buyers seeking to serve advertisements to a targeted audience.”
(ECF No. 9 ¶ 24).

Plaintiff has also alleged that Defendant’s

post

of

led

to

some

its

business

partners

suspending

their

relationships with Plaintiff, meaning “others in the community”
were discouraged from “associating with” Plaintiff.
To satisfy the element of legal fault, a plaintiff can allege
negligence or actual malice, alleging a defendant “published a
statement with actual knowledge of its falsity.”

Metro. Fin.

Servs. v. Vales, No. 2005-CV-2330-DKC, 2005 WL 8174682, at *3
24

(D.Md. Nov. 14, 2005) (citing Samuels v. Tschechtelin, 135 Md.App.
483, 544 (2000)).

Plaintiff has sufficiently alleged actual

knowledge because Plaintiff alleged that Defendant “knew that its
statements were false and/or misleading based on its expertise in
advertising technology and programmatic advertising” and because
Plaintiff repeatedly informed Defendant that the post was false
before

Defendant

published

the

post.

(ECF

No.

9

¶

58).

Accordingly, Plaintiff has sufficiently alleged a defamation claim
under Maryland law, and Defendant’s motion to dismiss will be
denied as to this claim.
D. Count III: Injurious Falsehood
Plaintiff
falsehood

alleges

because

disparaging

that

Defendant

statements

about

Defendant’s

post

was

injurious

“published

false,

misleading,

and

Colossus

SSP’s

business

the

to

public, actual and prospective customers of Colossus SSP, and
members of the industry.”

(ECF No. 9 ¶ 61).

Plaintiff alleges

that Defendant acted with “actual malice” because Defendant “knew
that its statements were false and/or misleading based on its
expertise in advertising technology and programmatic advertising”
and because Plaintiff repeatedly informed Defendant that the post
was false before Defendant published the post.
Defendant

argues

that

Plaintiff

actual malice and special damages.

25

has

not

(ECF No. 9 ¶ 58).
adequately

(ECF No. 19-1, at 25-27).

pled

“To maintain a claim for injurious falsehood, the plaintiff
must establish that the defendant acted with malice in publishing
to a third party a known falsity that caused special damages.”
Redmonds Enter., Inc. v. CSX Transp., Inc., No. 16-CV-3943-CCB,
2017 WL 2335598, at *4–5 (D.Md. May 30, 2017) (citing Nat’l Bd.
for

Certification

in

Occupational

Therapy,

Inc.

v.

Am.

Occupational Therapy Ass’n, 24 F.Supp.2d 494, 511 (D.Md. 1998)).
“A plaintiff has pled special damages where it asserts the loss of
a present or prospective advantage.”

Redmonds Enter., Inc., No.

2017 WL 2335598, at *5 (citing Nat’l Bd., 24 F.Supp.2d at 511).
Under Fed. R. Civ. P. 9(g), “[i]f an item of special damage is
claimed, it must be specifically stated.”
As discussed above, Plaintiff has alleged Defendant acted
with malice in publishing a known falsity because Plaintiff alleged
Defendant

knew

the

statements

in

the

post

were

false.

Additionally, Plaintiff has pled special damages because Plaintiff
alleged that Trade Desk and BidSwitch suspended relationships with
Plaintiff after the post was published.
has

sufficiently

alleged

injurious

At this stage, Plaintiff

falsehood,

and

motion to dismiss will be denied as to this claim.

26

Defendant’s

IV.

Conclusion
For the foregoing reasons, Defendant’s motion to dismiss will

be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

27