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rge sued loop for false advertising tortious interference unfair competition trade libel for ads it ran in response to recharge s acquisition of skio relatedly the court denied a preliminary injunction recharge skio and loop each provide apps for e commerce subscription management on the shopify platform to enable shopify merchants to turn one time retail customers into long term subscribers according to its advertising materials recharge power s 71 of subscriptions sold on shopify stores skio provides similar services for more than one thousand brands including various well known direct to consumer brands it offers a subscription management platform that enables shopify merchants to place a subscribe and save widget on their product pages skio s app is integrate d with shopify s native checkout and subscription services e g skio offers merchants a configurable flow so that when a subscriber clicks cancel the merchant can offer discounts free gifts pauses product swaps or different frequencies to try to keep them it also provides dashboards that provide information about their subscriptions including how subscriptions are growing what the churn rates are and which cancellation offers are working loop offers many of the same products and services to the same category of merchants as skio including subscription management customer portals cancellation flows dunning and payment recovery tools bundle builders and api integrations the parties agreed that loop and skio compete but not that loop and recharge did though there was evidence that customers view recharge skio and loop as interchangeable and competing services for a large business processing 10 000 subscription orders per month with an average order value of 50 subscription management costs would be 7599 per month for skio 9099 per month for recharge and 4149 per month for loop loop s declarant stated that its customers are sophisticated market players who typically engage in thorough research regarding platform choices he declared that it can take weeks or months of back and forth negotiation before a merchant chooses to use loop for its subscription management needs skio s declarant said things consistent with this e g one potential skio merchant evaluated skio for a month before making a purchasing decision and the pricing was consistent with requiring reasonable consumers to be careful loop also submitted evidence of customer dissatisfaction with recharge s app more than 5 1 star reviews online generally concerning recharge s pricing and customer service skio s shopify reviews reflect that many skio merchants reported that they elected to migrate from recharge to skio based on problems with recharge s app loop has less than 0 75 1 star reviews out of 670 total reviews shopify bans app developers from publishing an app that is identical to other apps you ve published to the shopify app store recharge has acknowledged that its acquisition of skio could raise questions about the application of these policies a loop affiliate s declarant stated that it is very common for acquiring companies to consolidate or eliminate products that are redundant with their own citing industry and academic publications he specifically identified killer acquisitions in the shopify industry when the acquisition was announced recharge and skio stated that nothing would change immediately but some worried and loop fed that worry despite recharge s no change until 2028 guarantee stating no skio merchants will be forced to migrate to recharge and that there d be no pricing change loop argued that it merely used the market uncertainty created by the acquisition as an opportunity accurately to inform merchants about their choices post acquisition and what typically happens in acquisitions of technology platforms shortly after the acquisition announcement loop posted a site wide banner across its website recharge acquired skio for 105m loop is now the second largest shopify subscription app your choice just got simpler loop or recharge book your priority migration slot plaintiffs argued that this was false because it informed customers that skio is no longer a viable standalone platform when in fact skio continues to operate as a standalone product its customers are not being migrated to recharge and there are no plans to deprecate skio it made similar statements on its blog recharge s official position both platforms continue to operate as normal nothing changes immediately but here s what historically happens when a platform gets acquired by its largest competitor the acquiring company says business as usual for 6 12 months then feature roadmaps merge then pricing consolidates usually upward then the smaller platform s app gets sunset or rolled into the acquirer s product the merchants who waited get migrated on the acquirer s timeline not their own skio merchants now face a set of questions nobody has answers to yet will skio s 599 month pricing stay will the passwordless login and clean portal ux survive integration into recharge s architecture will the small responsive support team that skio reviewers praised remain intact or get absorbed into recharge s support infrastructure which its own reviewers have documented as slow and unresponsive what that uncertainty looks like in practice depends on where you stand today if you re currently on skio your platform s future is now controlled by recharge if you re currently on recharge the same pricing escalation and support patterns documented in 116 one star reviews haven t changed they ve gotten bigger if you re evaluating platforms for the first time the decision just got simpler it s loop or recharge the blog post went through various revisions i smell some ai according to loop 45 unique users visited the blog post of which 22 were users from the united states in comparison to 6994 unique visitors to loop s website overall in the same period loop also allegedly targeted skio s customers in outreach with similar statements it also used a comparison table which it argued had been around for a while and wasn t posted in response to the acquisition marking numerous skio features as unavailable x and those same features for loop as available it allegedly falsely claimed that skio lacked features such as passwordless login via email one click checkout with exclusive offers and proactive card expiration alerts the meaning of the comparisons was contested though loop admitted error in claiming that skio lacked otp less authentication and passwordless login via email other loop ads accurately attributed a passwordless login feature to skio the table was removed before litigation began again i wonder if this was ai error it s good that loop doesn t pretend that the source of the error mattered skio and recharge allegedly received over 10 inquiries from skio merchants expressing concern about skio s future pricing support continuity and feature availability following the acquisition one customer informed recharge that it had received unsolicited emails from loop that contained no identifying signature footer or other disclosure indicating that the messages came from loop because the email stated that the sender wanted to get them started on migrating the customer initially believed the emails were coming from recharge and called recharge expressing concerns about skio s post acquisition future five large merchants allegedly reported concerns that loop representatives had been making statements about skio and the recharge acquisition consistent with the messaging in the written campaign plaintiffs also submitted declarations that customers were hard to acquire a potential customer allegedly wrote we were really impressed with skio and felt a good level of alignment between skio and customer however the news that skio merged with recharge did catch us really off guard we felt a bit torn since we had pretty much disregarded recharge completely by that point as we didn t enjoy the sales process and the pricing was completely unrealistic for our brand at this moment we are progressing with loop subscriptions as we felt they also aligned with us it didn t reference the loop ads plaintiffs argued that loop made literally false claims that skio would be sunsetted leaving merchants with a binary choice between recharge and loop by claiming that post acquisition smaller platforms historically get sunset by stating your choice just got simpler loop or recharge and by telling customers they were back to square one for their platform future first under 9th circuit precedent the nature characteristics and qualities of a product under the lanham act are more properly construed to mean characteristics of the good itself licensing status and claims about the date on which a product was first marketed are not actionable for this reason and likewise the sunsetting statements didn t refer to any inherent quality or characteristic of the parties services rather the sunsetting claims only refer to market structure and competitive dynamics in the industry which are analogous to the supply and demand phenomena that courts have found do not state a claim under 43 a even if they were actionable in principle nothing loop said was literally false the blog post truthfully reported that plaintiffs claimed that nothing would change immediately but then pointed to historical trends a prediction about future events is not an actionable statement of fact as a matter of law plaintiffs own claims didn t show that there was no risk that skio would be sunset their own public facing statements recognize that there is some uncertainty about the future of skio a linkedin post said f rankly we don t know what skio or recharge or maybe even some new platform is gonna look like in a year and a half even if the rule about future predictions only applies to good faith predictions there was no evidence of bad faith for claims like your choice just got simpler loop or recharge this wasn t literally false one reasonable interpretation of these claims is that customers now have two choices with respect to independent service providers in the marketplace this was plausibly literally true plaintiffs own announcement described skio as a recharge company and states that skio is joining recharge i would also say that this is the kind of claim often deemed puffery under similar circumstances also because consumers typically contract with service providers for longer periods the competitive choice and decision can reasonably be construed to refer to long term market structure and competitive dynamics rather than current conditions consistent with that many of the challenged advertisements frame customer choice in terms of long run impact rather than immediate market conditions that meaning was not literally false because plaintiffs have not committed to maintain skio as a long term option for consumers beyond 2028 the only necessary implications of the claims were that plaintiffs might not honor their nonbinding commitment to maintain skio through 2028 and that skio s future remains uncertain beyond that point in time and these were not matters of verifiable fact claims that skio would raise prices worsen customer support same basic analysis each advertisement read in its full context includes specific qualifiers such as not sure if all or even anything would happen with you but this is what generally happens comparison table loop conceded that the password claims were literally false and 43 a is a strict liability cause of action but there wasn t sufficient evidence of materiality there were no surveys or direct evidence from consumers that the features highlighted in the comparison table were ones about which they cared when making decisions n umerous courts have found an absence of materiality in lanham act false advertising cases when the target audience consisted of sophisticated individuals who were unlikely to be swayed by promotional materials the rest of the claims went the same way trade libel requires actual damage and that hadn t been shown with respect to the comparison table given the absence of evidence that any specific customers were exposed to it or that they cared about the password claims as opposed to other factors the balance of equities and the public interest also disfavored a preliminary injunction because it would bar loop from suggesting or implying that skio s product and features may change in various ways due to the acquisition t his would impose a limitation on marketplace competition that could otherwise benefit customers it would in effect preclude defendant from responding to plaintiffs nonbinding commitment to maintain skio as an independent service in the marketplace posted by rebecca tushnet at 12 14 pm no comments email this blogthis share to x share to facebook share to pinterest labels dastar false advertising probiotic throwdown continues w factual dispute over clinical studies exegi pharma llc v vsl pharmaceuticals inc 2026 wl 2144541 no 19 cv 02479 lkg d md jul 27 2026 this is the latest opinion in a long and tangled sequence exegi sued vsl for tortious interference with business relationships and unfair competition arising from certain letters that vsl s litigation counsel sent to exegi s manufacturers and distributors vsl counterclaimed against exegi and professor claudio de simone for false advertising under the lanham act the facts involve an eight strain high potency probiotic formulation de simone obtained several patents and other intellectual property rights for his formulation including for the probiotic formulation for the eight strain probiotic mix known as the de simone formulation he first licensed this to vsl and it was sold under the name vsl 3 he also caused samples of the eight bacterial strains comprising the de simone formulation to be deposited with the leibniz institute dsmz german collection of microorganisms and cell cultures gmbh dsmz which is a depository for the storage of strains and microorganisms and not a depository for strains for industrial production dsmz assigns each deposit a unique alphanumeric designation the vsl de simone relationship soured and he cut off vsl s access to the manufacturer of vsl 3 instead granting an exclusive license to exegi under the name visbiome exegi incorporated the dsm codes assigned by the dmsz on visbiome s packaging and packaging inserts alongside the genus and species name for each corresponding bacteria strain although visbiome has never been manufactured with the deposited material at dsmz visbiome contains all eight of the bacterial strains by genus and species listed on visbiome s packaging but vsl contends that testing of the dsmz deposits reveals that at least three of the deposited strains do not match those listed on visbiome s packaging the de simone parties argued that any mismatch was the result of contamination introduced before the strains were deposited at dsmz and not a discr...
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