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g its expenses greater and its profits lower because it did not rely on bots to build its business papaya argued that the expert was required to model a different but for world specifically one in which papaya removed all false statements from its advertising while not altering its business model or its use of bots but papaya didn t explain how this could be done skillz proved at trial that papaya could not have entered the rmsb market by using bots in the way that papaya did and at the same time truthfully describe that use and its product to consumers in its advertising papaya has offered no authority to suggest that a plaintiff s expert must create a but for world that could not exist among other things payment processors and others wouldn t have allowed papaya to use their services had papaya told the truth and consumers wouldn t have wanted to play against bots given these constraints skillz showed that the damages flowed directly from papaya s false advertising which concerned the very nature of the product it was not a false statement about some incidental feature and skillz showed that it was that very advertising that caused consumers to complain to papaya about papaya s use of bots it was also acceptable to award damages for lost enterprise value as long as the damages were measurable with reasonable certainty papaya argued that skillz could only recover its lost profits but skillz hadn t yet made a profit at the time of trial papaya argues that skillz cannot recover enterprise value damages simply because skillz prioritized growth over profits in the years it was developing its business yes skillz invested heavily in developing its business and enlarging its customer base to achieve not only substantial liquidity but also a network effect but that didn t limit it to lost profits instead of lost enterprise value nor was papaya entitled to jmol on the lanham act and ny gbl claims falsity materiality and harm were all sufficiently shown among other things there was abundant evidence that papaya engaged in deliberate conduct of an egregious nature to deceive consumers which created a presumption of deception the court additionally rejected papaya s argument that damages under the gbl must be limited to financial harm that resulted from papaya s deception of new york consumers as a competitor suing for the effects of consumer deception on it skillz is entitled to be fully compensated for the injury it incurred through papaya s wrongdoing even though that injury also impacted consumers who resided outside new york the court also rejected papaya s other challenges to the amount of damages the amount of the award didn t shock the conscience when measured against the legal standard and the trial evidence skillz and papaya were competing with each other in a new online industry where billions of dollars in revenue were available to the successful rmsb company papaya s fraudulent conduct was extraordinary and central to its huge success zero sum impact on skillz among other things it was ok to use evidence of papaya s success after it stopped using bots there was credible evidence at trial that papaya benefitted from the network effects of its false advertising even after papaya ceased using bots to fill and control tournaments thus the damages model could include papaya s revenue from running tournaments for the player base that it had built while engaging in false advertising papaya s own damages expert testified that the number of papaya s tournaments fell only 20 after it turned off the bots suggesting that papaya continued to benefit from the liquidity it had built through its false advertising skillz requested that the court double the jury s advisory verdict of 719 million on papaya s profits the jury also identified 652 million as papaya s cost savings or treble the 420 million damages award the court declined both requests for enhanced damages but did award 719 million disgorgement was appropriate because come on skillz didn t show that disgorgement was necessary to deter papaya since it largely ceased its false advertising in late 2023 by discontinuing the use of bots in its tournaments and there is no realistic possibility that papaya will return to its false advertising campaign now that the unlawful advertising has been publicly revealed and addressed in this judgment the key was unjust enrichment papaya s relatively modest financial investment in its start up business did not explain its explosive growth even large deep pocketed u s companies that had contemplated entering the market to compete with skillz which had already achieved a network effect decided against doing so the award of skillz loss of enterprise value didn t fully deprive papaya of the benefits of its illegal scheme papaya is still a substantial player in the market and because players tend to stay on a platform with which they are familiar the impact on skillz of papaya s wrongdoing will continue for the foreseeable future nor did skillz delay unreasonably while skillz came to suspect and then believe in 2023 that papaya s success was due to its false advertising and employment of bots skillz was entitled to sufficient time to develop the reasonable grounds necessary to plead its claim in federal court in early 2024 since that filing skillz has proceeded with diligence to prosecute this lawsuit despite papaya s strategy of making skillz s assembly of the proof of its claims difficult and expensive however if no disgorgement award were available the court would enhance the actual damages award by doubling it to 840 million because the actual damage to skillz was severe but hard to quantify especially given that skillz made changes in response to papaya s false advertising papaya also argued that any disgorgement amount should be reduced by 13 to remove non u s revenue because the lanham act is not extraterritorial but papaya s audited financial statements introduced at trial did not disaggregate u s sales from foreign sales papaya relied for its 13 number on a single graphic in a january 2023 powerpoint presentation prepared by a third party for papaya apparently to entice investors while it was still engaged in false advertising in the united states the presentation disclaimed being an audit or due diligence review it warned that the author does not give any representation or warranty express of implied as to the accuracy or completeness of the information in the document the court declined to adjust the figure the us was undisputedly papaya s target market and papaya denied skillz access during the discovery period to relevant information that skillz sought including the information that would permit skillz to accept the representation in this graphic to dispute it or to place it in context on this record there was no need to adjust disgorgement which after all need not be proven to perfection unsurprisingly the court also partially granted skillz s requests for attorneys fees costs and post judgment interest but not pre judgment interest the case was exceptional the lanham act standard and the court exercised its discretion to award fees under the gbl ending the fee period at the end of 2025 left roughly 10 1 million in fees along with the deliberate extensive central deception papaya litigated the case unreasonably in 2024 2025 when it slow walked and obstructed the production of critical discovery material through the entire discovery period with ramifications through trial for example during the presentation of the defense case skillz learned for the first time that papaya had wrongfully redacted highly relevant passages from its documents by marking the material nonresponsive but t his year papaya changed counsel and the parties were largely involved in preparing for the april trial from any point of view it was reasonable for papaya to litigate the amount to be awarded in damages and that was largely the focus of the trial no prejudgment interest because the attorneys fee award was sufficient to address the exceptional nature of the case and because the court had already ordered disgorgement of papaya s unjust enrichment skillz platform inc v papaya gaming ltd 2026 wl 2185762 no 24cv1646 dlc s d n y jul 29 2026 the court also denied a permanent injunction first skillz sought an injunction against bot use that was denied because it was false advertising not bot use as such that was at issue second skillz sought a 6 month corrective advertising splash screen shown to each user prior to their playing any papaya game or when they enter the papaya website informing readers that papaya once used bots that it denied their existence to customers and that a jury found papaya liable to skillz for false advertising annoying all caps presentation makes the proposal unreadable although skillz suffered an irreparable injury that monetary damages could only partially remedy the public interest and the balance of the equities didn t weigh in favor of the proposal there is no adequate showing regarding how many of those currently viewing the papaya website or playing a papaya game were subjected to its false advertising papaya s false advertising ended in late 2023 with its removal of bots as tournament players that is over two years ago which is probably an infinity in the online gaming world moreover the reference to skillz in the proposed corrective advertising will promote skillz which is only one of papaya s competitors finally the burden on a consumer of reading and reacting to the statement years after the events at issues weighs against the requested relief posted by rebecca tushnet at 12 29 pm no comments email this blogthis share to x share to facebook share to pinterest labels false advertising remedies warnings about effects of killer acquisitions on shopify apps aren t about tangible characteristics and aren t factual claims jika inc v loop solutions inc no 2 26 cv 05530 jak marx 2026 wl 2138604 c d cal jul 20 2026 jika d b a skio recharge 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 passw...
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