Longbridge Financial, LLC v. Mutual Of Omaha Mortgage, Inc.

• Court: District Court, S.D. California
• Decided: May 13, 2025
• Docket: 3:24-cv-01730
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 24-cv-1730-DMS-VET LONGBRIDGE FINANCIAL, LLC, a

12 Delaware limited liability company, ORDER GRANTING IN PART AND 13 Plaintiff, DENYING IN PART MOTION FOR v. PRELIMINARY INJUNCTION 14

MUTUAL OF OMAHA MORTGAGE, 15 INC., a Delaware corporation; REVIEW 16 COUNSEL LLC, a California limited liability company; ADVISORY 17 INSTITUTE, LLC, a Delaware limited 18 liability company; and DOES 1 through 100, inclusive, 19 Defendants. 20

21 Pending before the Court is Plaintiff Longbridge Financial, LLC’s (“Longbridge”) 22 Motion for Preliminary Injunction (Motion, ECF No. 16). Defendants Mutual of Omaha 23 Mortgage, Inc. (“Mutual of Omaha”) and Review Counsel LLC (“Review Counsel”) filed 24 a response in opposition (Mutual and Review Counsel Opp’n, ECF No. 29). Defendant 25 Advisory Institute, LLC (“Advisory”) joined in Mutual of Omaha’s opposition and filed 26 its own response in opposition. (Advisory Opp’n, ECF No. 33). Longbridge filed a reply. 27 (Reply, ECF No. 36). The matter is suitable for resolution without oral argument pursuant 28 1 to Civil Local Rule 7.1(d)(1). (ECF No. 38). For the following reasons, Longbridge’s 2 motion for preliminary injunction is granted in part and denied in part. 3 I. BACKGROUND 4 The Court incorporates the background section in its Order denying Advisory’s 5 motion to dismiss. (ECF No. 31). Since Longbridge filed its complaint, the record has 6 developed and the relationship between the Defendants has become clearer. On October 7 18, 2024, Review Counsel filed its corporate disclosure statement, stating that “Review 8 Counsel LLC is wholly owned by Mutual of Omaha Mortgage, Inc.” (ECF No. 5, at 1). 9 Mutual of Omaha confirmed this relationship in its opposition brief, acknowledging that it 10 acquired Review Counsel in 2021. (Lawrence Decl., ECF No. 29-2 ¶¶ 1–2). Advisory was 11 founded in January 2024 by William Trask, a former General Counsel of Mutual of Omaha, 12 and is wholly owned by him. (Trask Decl., ECF No. 33-2 ¶¶ 1–2). Mutual of Omaha is 13 Advisory’s first and only advertising partner. (Id. ¶ 4). Review Counsel and Advisory’s 14 websites are similar because Review Counsel provided to Advisory its “templated design 15 footprint” when Mr. Trask initially created Advisory’s website. (Id. ¶¶ 2, 7). 16 Review Counsel and Advisory recently made several changes to their websites to be 17 consistent with these recent disclosures. Review Counsel’s disclosure banner at the top of 18 its webpages, which previously stated that Review Counsel was “affiliated with” Mutual 19 of Omaha, now states that it is “owned and operated by Mutual.” (Motion, at 12). On 20 January 9, 2025, Advisory updated its “Disclaimers” page with a “[l]ist of [a]dvertising 21 [p]artners” that “have paid to advertise with [Defendant Advisory]”; a list that includes 22 only Mutual of Omaha. (Capata Decl., ECF No. 16-2, Ex. 20 at 97). Advisory also added 23 a disclosure to its landing page and “changed some references on its site [previously] 24 describing it as ‘independent,’ to ‘objective.’” (Motion, at 12). And both websites now 25 omit any reference to Retirement Funding Solutions (“RFS”), which was previously listed 26 as Defendants’ number two recommended reverse mortgage provider. (Id. at 11–12). 27 28 1 Despite these changes, Longbridge argues that the Review Counsel and Advisory 2 websites are still false and misleading to consumers in at least three ways: (1) both websites 3 falsely represent Defendants as independent organizations using objective ratings despite 4 their financial relationship with Mutual of Omaha; (2) when recommending reverse 5 mortgage providers, both websites use “arbitrary and statistically unsound criteria” that 6 artificially boost Mutual of Omaha’s score while deflating other providers’ scores; and (3) 7 to drive consumers to their websites, both Review Counsel and Advisory use false and 8 misleading Google ads and landing pages that promise consumers information about “Top 9 3” reverse mortgage providers while actually only promoting Mutual of Omaha. (Id. at 10 12–13). 11 To cure these defects, Longbridge seeks removal of the following webpages 12 currently on Defendants’ websites. First, Defendants’ landing pages and webpages 13 highlighting Mutual of Omaha as Review Counsel and Advisory’s “Featured” or “Top” 14 reverse mortgage companies should be removed because the disclosures linking 15 Defendants to Mutual of Omaha are either not “clear and conspicuous” or, in Advisory’s 16 case, “buried at the very bottom of a [different] long webpage that contains over 800 words 17 of text.”1 (Motion, at 34–36). Second, Defendant’s webpages presenting reverse mortgage 18 ratings and criteria should be removed because they are based on arbitrary, non-objective, 19 and non-neutral metrics.2 (Id. at 21–26). Third, Review Counsel’s webpage listing its 20 reviewed reverse mortgage companies and corresponding “Review Counsel Ratings” 21 22 23 24 1 See Featured Reverse Mortgage Companies for 2025, REV. COUNS., 25 https://www.reviewcounsel.org/category/reverse-mortgages/; Top Reverse Mortgage Companies for 2025, ADVISORY INST., https://advisoryinstitute.org/reverse-mortgages/. These webpages are identical to 26 Defendants’ landing pages, which are the webpages consumers are redirected to after clicking on links provided by a Google search. (Motion, at 15–16 n.8). 27 2 See Review Counsel Rating System, REV. COUNS., 28 https://www.reviewcounsel.org/ratings/?category=reverse-mortgage; Ratings, ADVISORY INST., 1 should be removed because the ratings rely on the problematic metrics referenced above. 2 Fourth, Review Counsel’s individual review webpages of Mutual of Omaha and 3 Longbridge suffer from the same infirmities and should be removed because they also rely 4 on those problematic metrics.4 Further, the Longbridge review webpage was false and 5 deceptive because it was falsely listed as not being licensed in Hawaii and its four-star 6 consumer review is based entirely on a single consumer review.5 Longbridge also argues 7 Defendants should be precluded from republishing any of the content removed from their 8 websites since January 1, 2025, and “refrain from publishing any further false, misleading, 9 and deceptive advertisements, comparisons, reviews, and other content relating to reverse 10 mortgage product” on their websites during the pendency of this action. (Id. at 2–3, 13). 11 Finally, after the present motion was filed, Review Counsel made further revisions. 12 For example, as of January 17, 2025, Review Counsel no longer uses the phrase “Top 3 13 Reverse Mortgages” in its sponsored Google ads and instead uses the phrases “2025’s Best 14 Reverse Mortgages” and “Top U.S. Reverse Mortgage Companies Reviewed & Ranked.” 15 (Lawrence Decl. ¶ 12). It also removed the false statement that Longbridge was not 16 licensed in Hawaii. (Id. ¶ 65). 17 II. LEGAL STANDARD 18 Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear 19 showing that the plaintiff is entitled to such relief.” Winter v. Nat’l Res. Def. Council, Inc., 20 555 U.S. 7, 22 (2008). “A party seeking a preliminary injunction must meet one of two 21 variants of the same standard.” All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th 22 Cir. 2017). Under the Winter standard, a party is entitled to a preliminary injunction if it 23

24 25 3 See Companies, REV. COUNS., https://www.reviewcounsel.org/companies/?category=reverse- mortgages. 26 4 See Mutual of Omaha Mortgage, REV. COUNS., https://www.reviewcounsel.org/company/mutual-of- omaha-mortgage/; Longbridge Financial, REV. COUNS., 27 https://www.reviewcounsel.org/company/longbridge-financial/. 5 The consumer review states “Yes, I understand” and rates Longbridge with four out of five stars. 28 1 demonstrates (1) “that [it] is likely to succeed on the merits,” (2) “that [it] is likely to suffer 2 irreparable harm in the absence of preliminary relief,” (3) “that the balance of equities tips 3 in [its] favor,” and (4) “that an injunction is in the public interest.” Winter, 555 U.S. at 20. 4 Under the Ninth Circuit’s “‘serious questions’ test—a ‘sliding scale’ variant of the Winter 5 test— . . . a party is entitled to a preliminary injunction if it demonstrates (1) ‘serious 6 questions going to the merits,’ (2) a likelihood of irreparable injury,’ (3) ‘a balance of 7 hardships that tips sharply towards the plaintiff,’ and (4) ‘the injunction is in the public 8 interest.’” Flathead-Lolo-Bitterroot Citizen Task Force v. Montana, 98 F.4th 1180, 1190 9 (9th Cir. 2024) (quoting All. for the Wild Rockies, 865 F.3d at 1217). Under this “serious 10 questions” test, “if a plaintiff can only show that there are serious questions going to the 11 merits—a lesser showing than likelihood of success on the merits—then a preliminary 12 injunction may still issue if the balance of hardships tips sharply in the plaintiff’s favor, 13 and the other two Winter factors are satisfied.” All. for the Wild Rockies, 865 F.3d at 1217 14 (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) 15 (internal quotations omitted)). A plaintiff need only demonstrate success as to at least one 16 of their claims to receive preliminary injunctive relief. See Ozkay v. Equity Wave Lending, 17 Inc., No. 20-cv-08263-JST, 2020 WL 12764953, at *2 (N.D. Cal. Nov. 25, 2020). 18 A district court may also consider “the parties’ pleadings, declarations, affidavits, 19 and exhibits submitted in support of and in opposition to the [motion for preliminary 20 injunction].” Cal. Rifle & Pistol Ass’n, Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 745 F. 21 Supp. 3d 1037, 1048 (C.D. Cal. 2024); see also Johnson v. Couturier, 572 F.3d 1067, 1083 22 (9th Cir. 2009) (finding district court did not abuse its discretion in granting a preliminary 23 injunction when it relied on hearsay evidence and “the many exhibits, affidavits, 24 declarations and factual allegations which have been submitted . . . by all parties . . . 25 throughout the course of this litigation”). Any evidentiary issues “properly go to weight 26 rather than admissibility.” Am. Hotel & Lodging Ass’n v. City of Los Angeles, 119 F. Supp. 27 3d 1177, 1185 (C.D. Cal. 2015). 28 1 III. DISCUSSION 2 A. Longbridge Seeks Mandatory Injunctive Relief 3 “A prohibitory injunction prohibits a party from taking action and ‘preserve[s] the 4 status quo pending a determination of the action on the merits.” Marlyn Nutraceuticals, 5 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009) (quoting Chalk v. 6 U.S. Dist. Ct., 840 F.2d 701, 704 (9th Cir. 1988)). “A mandatory injunction orders a 7 responsible party to take action[,] . . .goes well beyond simply maintaining the status quo 8 [p]endente lite[,] [and] is particularly disfavored.” Id. at 879 (internal quotations omitted). 9 “The status quo means ‘the last, uncontested status which preceded the pending 10 controversy.’” N.D. ex rel. Parents Acting as Guardians Ad Litem v. State of Haw. Dep’t 11 of Educ., 600 F.3d 1104, 1112 n.6 (9th Cir. 2010) (quoting Marlyn Nutraceuticals, Inc., 12 571 F.3d at 879). 13 As the Ninth Circuit in Hernandez v. Sessions acknowledged, the distinction 14 between the two types of injunction “lack[s] clear authority” and contains “inherent 15 contradictions underlying the somewhat artificial legal construct that cause so many to 16 question the inquiry” courts undertake when faced with this issue. 872 F.3d 976, 998 (9th 17 Cir. 2017). The consequences are significant as mandatory injunctions are subject to 18 heightened scrutiny whereas prohibitory injunctions are evaluated under the traditional 19 Winter test. See Marlyn Nutraceuticals, Inc., 571 F.3d at 879. 20 Longbridge raises two arguments in support of its contention that it requests 21 prohibitory and not mandatory injunctive relief. First, Longbridge attempts to distinguish 22 its requested injunctive relief from the requested mandatory injunctive relief in Garcia v. 23 Google, Inc. because that request was for the defendant to affirmatively “keep removing 24 infringing content from the internet.” (Reply, at 19) (internal quotation omitted). 25 However, the Garcia court defined the status quo preceding the litigation to be when the 26 original infringing video was uploaded and available for public viewing on YouTube. 786 27 F.3d 733, 740 n.4 (9th Cir. 2015) (en banc). Plaintiff sought an injunction requiring Google 28 to remove that video and all future infringing videos. Id. at 740. Because that relief 1 “disrupted that status quo by ordering Google to remove the film,” the Garcia court 2 construed plaintiff’s requested relief to be a mandatory injunction. Id. 3 Next, Longbridge argues that the Ninth Circuit in Hernandez held that “an order 4 requiring a party to stop violating the law is prohibitory.” (Reply, at 19). For support, 5 Longbridge quotes the Hernandez court’s citation to a treatise stating that “[a]n injunction 6 is considered prohibitory when the thing complained of results from present and continuing 7 affirmative acts and the injunction merely orders the defendant to refrain from doing those 8 acts.” Reply, at 18; see also 872 F.3d at 998. 9 The Court is not persuaded that Hernandez created such a bright-line-rule: The 10 Hernandez court found the request that the government “conduct future initial 11 [immigration] bond hearings in accordance with constitutional processes” to be prohibitory 12 because “it prohibits the government from conducting new bond hearings under procedures 13 that will likely result in unconstitutional detentions.” 872 F.3d at 998. However, the court 14 also indicated that a separate “requirement that the government [affirmatively] conduct 15 new bond hearings for individuals detained on account of bonds set pursuant to the 16 enjoined procedure . . . , may, however, under certain plausible interpretations be deemed 17 mandatory.” Id. Contrary to Longbridge’s suggestion, Hernandez appears to be consistent 18 with the Ninth Circuit’s definition that mandatory injunctions require a party to “take 19 action.” See Marlyn Nutraceuticals, Inc., 571 F.3d at 878. 20 Ultimately, the Court finds that Longbridge seeks mandatory injunctive relief 21 because it requests an order requiring Defendants “to ‘take action’ . . . [and] goes well 22 beyond simply maintaining the status quo pendente lite.” Garcia, 786 F.3d at 740 (citations 23 omitted). Since Longbridge seeks to prevent both reversion to the September 2024 24 iteration of Defendants’ webpages and removal of current alleged false or misleading 25 statements on these webpages, the Court applies the Ninth Circuit’s heightened Winter 26 standard for mandatory injunctions. See Kennedy v. Meta Platforms, Inc., No. 24-cv- 27 02869-WHO, 2024 WL 4031486, at *15 (N.D. Cal. Sept. 3, 2024) (noting that “[t]he Ninth 28 Circuit has also implied that the ‘serious questions’ sliding scale inquiry for preliminary 1 injunctions does not apply to mandatory injunctions”) (citing Doe v. Snyder, 28 F.4th 103, 2 111 n.4 (9th Cir. 2022)). 3 Under that standard, “[m]andatory injunctions . . . are permissible when ‘extreme or 4 very serious damage will result’ that is not ‘capable of compensation in damages.’” 5 Hernandez, 872 F.3d at 999. Further, Longbridge’s burden under the first Winter factor is 6 “doubly demanding: . . . [Plaintiff] must establish that the law and facts clearly favor [its] 7 position, not simply that [it] is likely to succeed.” Garcia, 786 F.3d at 740. 8 B. The Law and Facts Clearly Favor Some of Longbridge’s Claims 9 “The first factor under Winter is the most important.” Garcia, 786 F.3d at 740. 10 While Longbridge carries the burden of showing that the law and facts clearly favor its 11 position, Longbridge is not required to prove its case in full at this stage but only such 12 portions that enable it to obtain the injunctive relief it seeks. See U. of Texas v. Camenisch, 13 451 U.S. 390, 395 (1981). Plaintiff alleges claims under the Lanham Act, California’s 14 Unfair Competition Law (“UCL”), and the Florida Deceptive and Unfair Trade Practices 15 Trade Act (“FDUTPA”). For the following reasons, the Court finds that Plaintiff has 16 carried its burden on each of these claims. 17 1. Lanham Act Claim 18 “Section 43(a) of the Lanham Act prohibits the use of false designations of origin 19 and false representations in the advertising and sale of goods and services.” Cleary v. News 20 Corp., 30 F.3d 1255, 1259 (9th Cir. 1994). The Act prohibits false advertising in the 21 context of “commercial advertising or promotion,” which is defined as “(1) commercial 22 speech, (2) by a defendant who is in commercial competition with plaintiff, (3) for the 23 purpose of influencing consumers to buy defendant’s goods or services, and (4) that is 24 sufficiently disseminated to the relevant purchasing public.” Ariix, LLC v. NutriSearch 25 Corp., 985 F.3d 1107, 1115 (9th Cir. 2021) (citing Coastal Abstract Serv., Inc. v. First Am. 26 Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999)). 27 “The elements of a Lanham Act § 43(a) false advertising claim are: (1) a false 28 statement of fact by the defendant in a commercial advertisement about its own or another’s 1 product; (2) the statement actually deceived or has the tendency to deceive a substantial 2 segment of its audience; (3) the deception is material, in that it is likely to influence the 3 purchasing decision; (4) the defendant caused its false statement to enter interstate 4 commerce; and (5) the plaintiff has been or is likely to be injured as a result of the false 5 statement, either by direct diversion of sales from itself to defendant or by a lessening of 6 the goodwill associated with its products.” Southland Sod Farms v. Stover Seed Co., 108 7 F.3d 1134, 1139 (9th Cir. 1997). 8 Defendants do not dispute that the alleged false advertising is “commercial 9 advertising,” nor do Defendants dispute that they caused the statements at issue to enter 10 interstate commerce. Accordingly, the Court proceeds with the remaining elements of 11 Plaintiff’s false advertising Lanham Act claims: (1) false or misleading statements, (2) 12 actual or likely deception, (3) materiality, and (4) injury. 13 a. False or misleading statements 14 A plaintiff may “demonstrate falsity within the meaning of the Lanham Act” by 15 showing that the at-issue statement is: (1) literally false on its face; (2) literally false by 16 necessary implication; or (3) “literally true but likely to mislead or confuse consumers.” 17 Southland Sod Farms, 108 F.3d at 1139. “When evaluating whether an advertising claim 18 is literally false, the claim must always be analyzed in its full context.” Id. at 1140. “When 19 a statement is literally false, the second and third elements of actual deception and material 20 are presumed.” San Diego Cnty. Credit Union v. Citizens Equity First Credit Union, 360 21 F. Supp. 3d 1039, 1052 (S.D. Cal. 2019). “[U]nder the false-by-necessary-implication 22 doctrine, ‘[i]f the words or images, considered in context, necessarily imply a false 23 message, the advertisement is literally false[,] and no extrinsic evidence of consumer 24 confusion is required.’” Suzie’s Brewery Co. v. Anheuser-Busch Cos., LLC, 519 F. Supp. 25 3d 839, 846 (D. Or. 2021) (quoting Time Warner Cable, Inc. v. DIRECTV, Inc., 497 F.3d 26 144, 153 (2d Cir. 2007)). “[I]f the language or graphic is susceptible to more than one 27 reasonable interpretation, the advertisement cannot be literally false.” Id. (quoting Time 28 Warner Cable, 497 F.3d at 158). 1 i. Challenged past statements and behavior 2 As discussed, Plaintiff challenges some statements that have been amended or 3 removed by Defendants since January 2025. These past statements include (1) Review 4 Counsel listing Longbridge as not being licensed in Hawaii; (2) Defendants’ sponsored 5 Google ads promising consumers information about “Top 3” reverse mortgage providers; 6 (3) Review Counsel’s banner disclosure stating that it was affiliated with Mutual of 7 Omaha; and (4) Defendants’ recommendation of RFS as a reverse mortgage provider. 8 Based on the present record, the Court finds that Longbridge has carried its burden 9 to show that the law and facts clearly favor its position that some of these statements were 10 “literally false” on their face. The parties agree it was incorrect for Review Counsel to 11 state that Longbridge was not licensed in Hawaii. (Motion, at 31–32); (Mutual and Review 12 Counsel Opp’n, at 21). In addition, Review Counsel and Advisory’s prior Google ads 13 promising information about “Top 3” reverse mortgage providers are problematic because 14 those ads redirected consumers to landing pages that highlighted Mutual of Omaha and 15 RFS—which the parties agree are the same company—as two of the three “top” providers. 16 (Dholakia Decl. ¶¶ 35–43). Thus, the law and facts clearly favor Longbridge’s claim that 17 these statements were literally false on their face. 18 Further, Longbridge has established that the law and facts clearly favor its claim that 19 Review Counsel and Advisory’s spotlighting and recommending of Mutual of Omaha and 20 RFS as two separate reverse mortgage providers was literally false by necessary 21 implication. The September 2024 versions of Defendants’ websites listed Mutual of 22 Omaha and RFS side-by-side while describing them as “some of our notable reverse 23 mortgage loan partners” and “industry leaders.” (Complaint ¶¶ 28, 48). Defendants also 24 described both as having “[e]xcellent customer service” and “[g]reat borrower reviews 25 from independent sites[,]” (id.), and listed a different phone number for each “provider.” 26 (Id.). Viewed in context, these representations imply that Mutual of Omaha and RFS are 27 separate and independent entities. Because that is not the case, Longbridge has met its 28 1 burden to show that Defendants’ recommendations and references to RFS on the 2 September 2024 versions of their websites are false by implication. 3 The Court also finds Longbridge has carried its burden to show that the other past 4 statements, while not literally false, would likely mislead or confuse consumers. Review 5 Counsel’s previous banner disclosure, stating that Review Counsel was “affiliated with” 6 Mutual of Omaha and RFS, was literally true but obfuscated Mutual of Omaha’s actual 7 control and ownership of Review Counsel. (Id. ¶ 92). Accordingly, Longbridge has met 8 its burden to show the law and facts clearly support its claim that Review Counsel’s old 9 banner disclosure would likely mislead or confuse consumers. 10 ii. Challenged present statements and behavior 11 Longbridge also challenges certain webpages currently on Review Counsel and 12 Advisory websites. First, Longbridge argues that Review Counsel and Advisory’s landing 13 pages and webpages highlighting Mutual of Omaha as their “Featured” or “Top” reverse 14 mortgage companies are false and misleading because their disclosures are insufficient and 15 too far removed to reveal the true nature of Mutual of Omaha’s ownership and control of 16 Review Counsel and Advisory. Next, Longbridge challenges Review Counsel and 17 Advisory’s webpages describing and applying their rating criteria to reverse mortgage 18 providers because the ratings and criteria are “unsound, arbitrary, deceptive and 19 misleading.” (Motion, at 22). Finally, Longbridge argues that Review Counsel’s 20 individual review webpages on Mutual of Omaha and Longbridge should be removed 21 because the review pages rely on the same problematic rating criteria as the other 22 webpages. These arguments are addressed in turn. 23 1. Disclosures 24 Review Counsel has two sets of disclosures. At the top of every Review Counsel 25 webpage is an evergreen banner stating that “Review Counsel is owned and operated by 26 Mutual of Omaha Mortgage.” On Review Counsel’s landing page there is a short-form 27 disclosure consumers can access by clicking on a bolded “Disclosure” link at the top of the 28 landing page. Clicking on that link prompts a disclosure pop-up at the center of the 1 webpage which reiterates the banner disclosure’s message and contains a hyperlink to 2 Review Counsel’s full disclosures. (Dholakia Decl. ¶ 97). 3 Longbridge’s primary gripe with the banner disclosure is that it is not sufficiently 4 “clear and conspicuous” to consumers. (Motion, at 24–36).6 Review Counsel disagrees, 5 noting that “[t]he disclosure is prominently displayed at the top of the page” and “is set 6 against an accented background.” (Mutual and Review Counsel Opp’n, at 25). The Court 7 agrees with Review Counsel that its current banner disclosure sufficiently explains its 8 relationship with Mutual of Omaha and makes Review Counsel’s landing page unlikely to 9 mislead or confuse consumers. The Court also agrees that Review Counsel’s current short- 10 form disclosure likely dispels consumer confusion since it reiterates the banner disclosure 11 and links to Review Counsel’s full-form disclosure. Accordingly, as to the Review 12 Counsel landing page, the Court finds that Longbridge has failed to meet its burden that 13 the law and facts clearly favor this claim. 14 Advisory’s disclosures present a slightly different story. The September 2024 15 version of Advisory’s landing page lacked a banner disclosure or a hyperlink to its 16 disclosures at the top of the page. (Capata Decl., at 71). Instead, the landing page contained 17 two different disclosures towards the bottom of the webpage. A consumer must first scroll 18 nearly to the bottom of the landing page to find the disclosure, which states: “[Advisory’s] 19 platform receives advertising compensation from certain partners. This financial 20 relationship may influence the presence and positioning of companies on [Advisory’s] 21 website. However, it does not affect the integrity of our evaluation process.” (Capata 22 Decl., at 73). A consumer must then scroll to the very bottom of the landing page and click 23 on a “Disclaimer” hyperlink to reach Advisory’s full-form disclaimers. (Id.). Once there, 24 a consumer would view Advisory’s general disclosures, stating that “Advisory sells 25

26 6 Plaintiff also suggests that Review Counsel’s disclosure violates the Federal Trade Commission’s 27 (“FTC”) criteria for “clear and conspicuous” disclosures, which are disclosures that “[are] difficult to miss (i.e., easily noticeable) and easily understandable by ordinary consumers.” Motion, at 36 (quoting 28 1 advertising opportunities to companies which may appear on this website,” “[c]ompanies 2 who wish to advertise on this website pay Advisory to be promoted or ‘Featured’ on the 3 Categories pages,” and many more disclosures. (Complaint, at 22). However, at no point 4 did Advisory disclose that Mutual of Omaha paid it to advertise on Advisory’s website. 5 (Id.). 6 As of January 9, 2025, Advisory added two important disclosures to their landing 7 page and their full-form disclaimer page. First, Advisory added a paragraph to the landing 8 page stating that “[t]he companies listed on this page compensate us as advertising 9 partners.” (Capata Decl., at 75). Second, at the very bottom of Advisory’s full-form 10 disclaimer page, Advisory added a “[l]ist of [a]dvertising [p]artners” denoting Mutual of 11 Omaha as the only company to “have paid to advertise with [Advisory].” (Id. at 97). 12 Nevertheless, Longbridge argues that the totality of these disclosures regarding 13 Advisory and Mutual of Omaha’s paid advertising relationship is “inadequate to dispel the 14 consumer confusion generated by the site, and are false and deceptive on their own terms.” 15 (Motion, at 36). Advisory disagrees, contending that their current method of disclosures 16 is not misleading. (Advisory Opp’n, at 7–8). 17 The Court finds that as to Advisory’s post-January 9, 2025 method of disclosures, 18 Longbridge has not met its burden to enjoin Advisory from publishing its landing page. 19 While a consumer would have to read Advisory’s long-form disclosure to understand the 20 true nature of Mutual of Omaha’s advertising relationship with Advisory, the other two 21 disclosures on the landing page—albeit less informative—should spur a reasonable 22 consumer to further inquire about Advisory’s advertising partnerships. Advisory’s long- 23 form disclosure page ultimately provides that information. 24 Conversely, the Court finds Longbridge has met its burden to show that Advisory’s 25 September 2024 disclosures were misleading and confusing to consumers. That Mutual of 26 Omaha is Advisory’s only advertising partner is a vital piece of information consumers 27 should know to avoid being misled or confused. The information is particularly salient 28 because Mutual of Omaha is featured on Advisory’s landing page and Advisory makes 1 vague references to “[c]ompanies” who pay Advisory to be promoted or featured on its 2 website without identifying those companies. (Complaint ¶ 55.b). Additional disclosures 3 are needed to cure this deficiency. Accordingly, the law and facts clearly favor 4 Longbridge’s contention that Advisory’s September 2024 landing page was misleading and 5 confusing to consumers. 6 Finally, Longbridge argues that Defendants’ “.org” domain names are misleading 7 and confusing because they are primarily used for “nonprofit websites such as non- 8 governmental organizations (NGOs), open-source projects, charitable organizations, and 9 educational platforms.” (Motion, at 30). To the extent Defendants’ “.org” usage engenders 10 a false sense of trust and objectivity, Defendants’ current disclosures likely counteract it. 11 Accordingly, the Court declines to require Defendants to remove their webpages on this 12 ground. 13 2. Ratings Criteria and Ratings 14 The Court next considers Defendants’ rating criteria and ratings of reverse mortgage 15 providers. Longbridge contends that Review Counsel and Advisory’s rating criteria are 16 neither relevant nor meaningful to reverse mortgage consumers and instead are pretextually 17 selected to make Mutual of Omaha Defendants’ top rated reverse mortgage provider. 18 (Motion, at 21–26). 19 Review Counsel’s rating criteria is based on an average of a provider’s numerical 20 scores (ranging from 1 to 5) in six categories: (1) years in business; (2) number of products 21 offered; (3) customer service availability; (4) state licensing/availability; (5) Better 22 Business Bureau (“BBB”) rating; and (6) availability of a mobile application. (Dholakia 23 Decl ¶ 46). These ratings, according to Longbridge’s expert, “are scientifically unsound, 24 extremely misleading, and deceptive, and would have a high likelihood of misleading 25 reasonable consumers who visit the Review Counsel website into forming incorrect 26 evaluations of the mortgage providers.” (Id. ¶ 47). Longbridge takes particular issue with 27 the mobile application and customer service availability criteria, which Longbridge claims 28 are arbitrary and not meaningful to reverse mortgage consumers. (Id. ¶ 48). Review 1 Counsel’s scoring on these two categories produces a “wide divergence between the 4.8 2 [overall] score given to Mutual and the 3.7 score given to Longbridge.” (Motion, at 23). 3 Due to these rating criteria, Longbridge argues that it is false and misleading for Review 4 Counsel to state on its website that “it offers objective ratings and rankings of reverse 5 mortgage providers.” (Motion, at 11). 6 The mobile application category is arbitrary, Longbridge argues, because Mutual of 7 Omaha’s own website makes no mention of any mobile application. (Id. at 23–24). 8 Further, Longbridge argues that when Review Counsel featured RFS on its website, it gave 9 RFS a score of 5/5 in the mobile application category even though RFS did not have its 10 own independent mobile application. (Motion, at 24). 11 Longbridge also argues the customer service availability category is arbitrary 12 because older consumers are likely to have more flexibility in their schedules due to 13 retirement. (Id. at 24). Thus, it makes little sense for this rating category to be “sufficiently 14 significant” to older consumers when choosing a reverse mortgage provider. (Id.). Review 15 Counsel counters by noting how four other reverse mortgage provider-review sites 16 (including Advisory’s website) use this criterion. (Dubé Decl., ECF No. 29-3 ¶ 61). 17 Longbridge similarly contends that Advisory’s ratings are “arbitrary, non-objective, 18 and pretextual.” (Motion, at 25). Advisory’s ratings are based on six criteria: (1) Trustpilot 19 Ratings; (2) Accreditation and Authorization; (3) Company Accessibility; (4) Educational 20 Resources; (5) Loans Available; and (6) Financial Stability. (Id. at 25–26). Longbridge 21 believes that Advisory does not actually use Trustpilot reviews as a criterion because 22 Advisory does not include Longbridge as a rated provider even though Longbridge has a 23 higher Trustpilot rating than Mutual of Omaha and because Advisory had incorrectly 24 asserted that RFS was rated on Trustpilot. (Id. at 26). Longbridge also attacks Advisory’s 25 “Accreditation and Authorization” and “Company Accessibility” categories as being 26 “statistically invalid.” (Dholakia Decl. ¶ 82). As a result, Longbridge argues that 27 Advisory’s prior disclaimer stating that its propriety scoring system is “independent” is 28 false and misleading. (Motion, at 29). 1 While Longbridge quibbles with Review Counsel and Advisory’s selection and 2 grading of their ratings categories, these matters may not be actionable under the Lanham 3 Act. The Ninth Circuit’s decision in Ariix, LLC v. NutriSearch Corporation, is instructive. 4 985 F.3d 1107. The plaintiff in Ariix, a nutritional supplement company, challenged the 5 publisher of a nutritional supplement guide that “comparatively rate[d] supplement 6 products using a five-star rating system based on 18 criteria.” Id. at 1111. While the 7 publisher “portray[ed] itself as an independent company that presents only objective data 8 and scientific analyses to the public” and “claim[ed] on its website that it relies on scientific 9 criteria to mathematically calculate the ratings,” the Ariix plaintiff alleged that the ratings 10 were rigged to favor a third-party competitor that “ha[d] a secret . . . and mutually lucrative 11 relationship” with the publisher. Id. at 1111–12. The Ninth Circuit found that “the 12 comparative five-star ratings in the Guide [were] not actionable” because “[t]hey [were] 13 simply statements of opinion about the relative quality of various nutritional supplement 14 products.” Id. at 1121. Although the publisher represented that the star ratings “rel[ied] 15 on scientific and objective criteria,” the Ariix court noted that “there [was] an inherently 16 subjective element in deciding which scientific and objective criteria to consider.” Id. To 17 illustrate, the Ariix court referred to how publications ranking colleges and law schools 18 “purportedly rely on objective criteria (e.g., acceptance rates, test scores, class size, 19 endowment), but selecting those criteria involves subjective decision-making.” Id. 20 The Court finds that Ariix is on all fours with Longbridge’s Lanham Act objectivity 21 claims against Review Counsel and Advisory’s chosen rating criteria and how they score 22 those criteria. As discussed, Longbridge contends that both Review Counsel and 23 Advisory’s selection and scoring of criteria are at odds with their representations of 24 objectivity. Longbridge does not argue—aside from Review Counsel’s prior incorrect 25 statement that RFS had a mobile application, and Advisory’s incorrect statement that RFS 26 was rated on Trustpilot—that Defendants incorrectly described any reverse mortgage 27 provider’s capabilities within its selected criteria. Ariix instructs that such challenges to 28 the selection of purportedly objective criteria which are summarized by a five-star rating 1 are not actionable under the Lanham Act. 985 F.3d at 1121. Accordingly, the Court finds 2 that the law and facts are not clearly in Longbridge’s favor on this ground and declines to 3 enjoin Review Counsel and Advisory from publishing webpages that rely on reverse 4 mortgage criteria and ratings. 5 However, Ariix does not foreclose Longbridge’s claim that Advisory’s prior 6 statements that its reviews and scores “are based upon Advisory’s own independent 7 propriety scoring system” and that advertisement compensation does not influence 8 Advisory’s reviews, scores, or ratings of providers, were false and misleading. (Motion, 9 at 28–29). A claim of independence “is a statement of fact that can be proven true or false” 10 and is thus actionable under the Lanham Act. Ariix, 985 F.3d at 1121–22. The present 11 record—that Advisory was founded and owned by Mutual of Omaha’s former General 12 Counsel, the Advisory website was designed using a “templated design footprint” provided 13 by Review Counsel, and Advisory’s sole advertising partner is Mutual of Omaha— 14 challenges Advisory’s claim that its propriety scoring system was independent. However, 15 despite these ties, Advisory maintains it is independent from Mutual of Omaha. (Advisory 16 Opp’n, at 11). While Longbridge raises serious questions regarding Advisory’s 17 independence, the Court does not find that the present record clearly supports Longbridge’s 18 contention that Advisory’s claims of independence are false and misleading to consumers. 19 Next, the Court turns to Longbridge’s complaints regarding Review Counsel’s 20 current individual review webpages for Mutual of Omaha and Longbridge. Longbridge 21 contends that Longbridge’s review webpage contains a graphic that shows Review 22 Counsel’s “3.7” rating for Longbridge alongside another four-star rating and a button to 23 “Read Reviews.” (Motion, at 32–33). Clicking that button brings a consumer to Review 24 Counsel’s consumer review section for Longbridge. (Id. at 33). There, a consumer would 25 see that Longbridge’s four-star rating is based entirely on a single consumer review stating 26 “Yes. I understand.” (Id.). This overall set-up is misleading, according to Longbridge, 27 because it “falsely suggests that Longbridge’s consumer reviews somehow justify this low 28 score.” (Id.). Further, the single consumer review is misleading because “[n]either the 1 source of this review, nor the methodology used to validate its authenticity, is explained on 2 the page . . . [a]nd[] using a single customer review of questionable provenance to justify 3 a starred rating for Longbridge is unambiguously arbitrary, non-objective, and statistically 4 invalid.” (Id. at 33–34). Review Counsel’s individual review page for Mutual of Omaha 5 is also allegedly misleading by comparison because its consumer review page is filled with 6 480 individual reviews that form an overall 4.8-star consumer review score. (Id.). 7 Longbridge has not met its heightened burden on this claim. Longbridge’s first 8 argument that the side-by-side juxtaposition between its 3.7 overall score and four-star 9 consumer review score causes consumers to believe that the 3.7 score is influenced by 10 consumer reviews is not persuasive. A reasonable consumer should notice that the 3.7 11 score and the four-star score are distinct since they are side-by-side and numerically 12 different. Additionally, if a reasonable consumer were to click on “Read Reviews” to read 13 the four-star consumer review, they would likely conclude it was not relevant to evaluating 14 Longbridge’s services since the consumer review is nonsensical—stating, “Yes, I 15 understand.” See Motion, at 33. 16 Further, Longbridge’s complaints regarding Longbridge and Mutual of Omaha’s 17 individual consumer ratings on Review Counsel’s website are unlikely to form a valid basis 18 for a Lanham Act claim. False advertising claims based upon the content of allegedly 19 misleading but ultimately independent third-party consumer reviews are nonactionable 20 statements of opinion. See BHRS Grp., LLC v. Brio Water Tech., Inc., 553 F. Supp. 3d 21 793, 801 & n.22 (C.D. Cal. 2021) (noting false advertising claim based upon the content 22 of allegedly misleading but independent third-party reviews were “classic statements of 23 opinion, and, therefore, . . . not actionable” under the Lanham Act). There is no suggestion 24 that Review Counsel authored or influenced any of the consumer reviews on its webpages. 25 Rather, Longbridge blames Review Counsel for not identifying the source of the reviews 26 or explaining the methodology used to validate its authenticity. (Motion, at 33). Because 27 the subject consumer reviews were authored by independent third-parties, Longbridge’s 28 claim under the Lanham Act faces significant headwinds. Accordingly, the Court finds 1 that Longbridge fails to meet its burden that the law and fact clearly favor its position that 2 Review Counsel’s individual review webpages are misleading to consumers. 3 b. Actual or likely deception 4 To prove the second element of a Lanham Act false advertising claim, Plaintiff must 5 show that Defendants’ statements “actually deceived or has the tendency to deceive a 6 substantial segment of its audience.” Southland Sod Farms, 108 F.3d at 1139. As 7 discussed, literally false statements are presumed to tend to deceive. See San Diego Cnty. 8 Credit Union, 360 F. Supp. at 1052. Defendants’ past statements claiming Longbridge was 9 not licensed in Hawaii, sponsored ads promising information about “Top 3” reverse 10 mortgage providers, and spotlighting and recommending RFS as a separate reverse 11 mortgage provider are thus presumed to tend to deceive. 12 In addition, Longbridge relies on the declaration of its expert, Utpal Dholakia, and 13 several screenshots of Review Counsel’s website, to support its contention that Review 14 Counsel’s old banner disclaimer tended to deceive consumers. In response, Review 15 Counsel claims that Mutual of Omaha consumers are “savvy,” cites academic research 16 “showing that older consumers are more skeptical of online reviews and more financially 17 literate than younger consumers,” and notes that “federal regulations require[] applicants 18 for federally-insured reverse mortgages to first meet with a counselor from a government- 19 approved counseling agency.” (Mutual and Review Counsel Opp’n, at 31). The Court 20 agrees with Longbridge that Review Counsel’s old banner disclosure tended to deceive 21 consumers to believe that Review Counsel was not owned and operated by Mutual of 22 Omaha. The original text of the banner disclosure, namely the first clause that “Review 23 Counsel is affiliated with Mutual of Omaha Mortgage and Retirement Funding Solutions,” 24 does little to explain the actual relationship between Review Counsel and Mutual of 25 Omaha. Review Counsel’s counterpoints are too generalized to explain how its old banner 26 disclosure did not tend to deceive—particularly given the reality that Mutual of Omaha 27 owns and operates Review Counsel. Accordingly, the Court finds that Longbridge has met 28 its burden that the old banner disclosure tended to deceive consumers. 1 Longbridge also claims Advisory’s September 2024 disclaimers tended to deceive 2 consumers. Those disclosures failed to explain that Mutual of Omaha was Advisory’s only 3 advertising partner. As discussed, this fact was important to disclose since Advisory was 4 founded by Mutual of Omaha’s former General Counsel, Advisory borrowed Review 5 Counsel’s design template, and Advisory’s disclaimers referred to “companies” that paid 6 to advertise on its website. There was no way for a consumer to learn from Advisory’s 7 website that Mutual of Omaha was Advisory’s only advertising partner. Accordingly, the 8 Court agrees with Longbridge that the law and facts clearly favor its position that 9 Advisory’s earlier disclaimers tended to deceive consumers. 10 c. Materiality 11 To satisfy the materiality requirement, Longbridge must show that the deception was 12 “material, in that it is likely to influence the purchasing decision.” Southland Sod Farms, 13 108 F.3d at 1139. As discussed, statements found to be literally false may be presumed to 14 be material to a consumer’s purchasing decision. See San Diego Cnty. Credit Union, 360 15 F. Supp. 3d at 1052. The Court therefore presumes that Defendants’ literally false 16 statements were material to consumers’ purchasing decisions. 17 As with consumer deception, direct evidence of a statement’s impact on consumers 18 is helpful but is not necessary to determine materiality. See ITEX Corp., 90 F. Supp. 3d at 19 1172–73. Further, “‘[m]ateriality can be shown where defendants misrepresent an inherent 20 quality or characteristic’ of a product.” In-N-Out Burgers v. Smashburger IP Holder LLC, 21 No. SACV 17-1474 JVS(DFMx), 2019 WL 1431904, at *7 (C.D. Cal. Feb. 6, 2019) 22 (quoting Broadcom Corp. v. SiRF Tech., Inc., No. SACV 08-546 JVS (MLGx), 2009 WL 23 10672287, at *4 (C.D. Cal. Oct. 8, 2009)). 24 With respect to the old banner disclosure, while the Review Counsel-arm of Mutual 25 of Omaha’s business does not itself provide reverse mortgages, its primary purposes are 26 (1) promoting the reverse mortgage providers that pay to advertise on the Review Mortgage 27 website and (2) offering its own reviews and scores of financial service providers. (Mutual 28 and Review Counsel Opp’n, at 9). The banner disclosure is particularly important since it 1 is the first disclosure a consumer would see when using the website, and Mutual of Omaha 2 owns Review Counsel and is promoted, reviewed, and scored on the website. The more 3 the banner discloses, the more consumers can rely on Review Counsel’s recommendations 4 to select a reverse mortgage provider. Thus, the old banner disclosure is material because 5 it misrepresents an inherent quality or characteristic of Review Counsel’s services— 6 whether a consumer can trust Review Counsel’s reviews and recommendations. 7 Review Counsel’s arguments to the contrary are unpersuasive. It argues that any 8 impact to consumers is mitigated by the “savviness” of its consumers or the helpfulness of 9 mandatory counseling from a government-approved agency. (Mutual and Review Counsel 10 Opp’n, at 32). However, the evidence put forward by Review Counsel is too generalized 11 and fails to rebut Longbridge’s contention that Defendants’ false statements effected 12 consumers’ purchasing decisions. Further, the mandatory counseling occurs well after 13 consumers are exposed to and potentially influenced by Defendants’ false and misleading 14 statements. It is also contested whether these counselors are allowed to redirect consumers 15 from their chosen reverse mortgage provider. (Reply, at 17 n.11). Accordingly, 16 Longbridge has met its burden to show that Defendants’ false and misleading statements 17 were material. 18 The deceptive nature of Advisory’s September 2024 disclaimers is material for 19 similar reasons. Advisory claims its website’s purpose is to provide general information 20 to consumers, presumably information about the products, services, and companies 21 featured on its website. (Trask Decl. ¶ 15). Consumers are more likely to use Advisory’s 22 website if they can trust and rely on the information Advisory chooses to present. Failing 23 to disclose the sole source of income for Advisory, when that source is a reverse mortgage 24 provider highlighted on Advisory’s website, could certainly influence consumers’ 25 decisions to use Advisory’s website and choose a reverse mortgage provider. Accordingly, 26 Longbridge has met its burden to show that Advisory’s September 2024 disclosures were 27 material. 28 1 d. Actual or Likely Injury 2 To satisfy the final element of a Lanham Act false advertising claim, Longbridge 3 must show that it “has been or is likely to be injured as a result of the false statement, either 4 by direct diversion of sales from itself to defendant or by a lessening of the goodwill 5 associated with its products.” Southland Sod Farms, 108 F.3d at 1139. “[D]iversion of 6 sales to a direct competitor may be the paradigmatic direct injury from false advertising.” 7 Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 138 (2014). “As 8 such, courts have applied a presumption of injury ‘when defendant and plaintiff are direct 9 competitors and defendant's misrepresentation has a tendency to mislead consumers.’” 10 Intuit Inc. v. HRB Tax Grp., Inc., No. 24-cv-00253-BLF, 2024 WL 5320392, at *9 (N.D. 11 Cal. Dec. 3, 2024) (quoting TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 826 (9th 12 Cir. 2011)). 13 Longbridge seeks both injunctive relief and damages. (Complaint, at 38). “[A] 14 competitor need not prove injury when suing to enjoin conduct that violates section 43(a).” 15 Southland Sod Farms, 108 F.3d at 1145 (quoting Harper House, Inc. v. Thomas Nelson, 16 Inc., 889 F.2d 197, 210 (9th Cir. 1989)). Accordingly, Longbridge need not prove injury 17 for injunctive relief. Regarding damages, the Court presumes Longbridge has suffered 18 injury. Because Longbridge has shown that Defendants’ literally false and misleading 19 statements tend to mislead consumers, it has met its burden of establishing that it has been 20 or is likely to be injured because of these statements. 21 2. State Law Claims 22 The parties agree that success on a Lanham Act false advertising claim paves the 23 way for success on UCL and FDUTPA claims. Mutual and Review Counsel Opp’n, at 33; 24 Walker & Zanger, Inc. v. Paragon Indus., 549 F. Supp. 2d 1168, 1182 (“[C]laims of unfair 25 competition and false advertising under [the UCL] . . . are ‘substantially congruent’ to 26 claims made under the Lanham Act.” (quoting Cleary, 30 F.3d at 1262–63); In re NJOY, 27 Inc. Consumer Class Action Litig., 120 F. Supp. 3d 1050, 1123 (C.D. Cal. 2015) (“[T]he 28 factors required to prove claims under the UCL . . . and FDUTPA are essentially 1 indistinguishable.”). Accordingly, the Court finds that Longbridge has met its burden as 2 to its state law claims under the UCL and FDUTPA.7 3 C. Irreparable Harm 4 Under the second Winter factor, the Court considers whether Longbridge “is likely 5 to suffer irreparable harm in the absence of preliminary relief.” 555 U.S. at 20. A plaintiff 6 seeking an injunction under the Lanham Act is “entitled to a rebuttable presumption of 7 irreparable harm . . . upon a finding of a likelihood of success on the merits.” 15 U.S.C. 8 § 1116. The presumption applies because, as discussed above, Longbridge has shown 9 more than likely success as to some of its Lanham Act claims. 10 Defendants offer five arguments to rebut the presumption of irreparable harm: (1) 11 Longbridge provides no evidence that it has been harmed; (2) Longbridge has in fact not 12 been harmed; (3) Longbridge has not shown that any harm it has suffered cannot be 13 remedied by monetary damages; (4) Longbridge has unduly delayed in seeking injunctive 14 relief; and (5) any harm has been mooted by Defendants’ January 2025 corrective actions. 15 Mutual and Review Counsel Opp’n, at 34–41; Advisory Opp’n, at 17–18. These arguments 16 are addressed in turn. 17 As a threshold matter, Defendants cannot flip the burden by asserting Longbridge 18 has not provided evidence of harm. Because a presumption of harm exists, either 19 Defendants must provide evidence that Longbridge did not suffer irreparable harm or 20 Longbridge must concede the absence of such harm. See Robinson v. Best Price 21 Distributors, LLC, No. 21-cv-06689-RGK-JC, 2022 WL 3013131, at *3–4 (C.D. Cal. 22 June 14, 2022) (finding defendants successfully rebutted the presumption of irreparable 23 harm where defendants asserted and plaintiffs conceded that defendants had stopped selling 24 25 7 Because Longbridge need only demonstrate success as to one of its claims to receive injunctive relief, 26 Ozkay, 2020 WL 12764953, at *2, the Court declines to consider whether Longbridge has met its burden under its UCL claim predicated on violation of the Real Estate Settlement Procedures Act. The Court also 27 declines to consider Advisory’s argument that the FDUTPA requires proof that consumers were or were likely harmed by Defendants’ conduct since the Court previously held that FDUTPA does not require 28 1 the at-issue product). Accordingly, this argument alone fails to rebut the presumption of 2 irreparable harm. 3 Review Counsel next argues that Longbridge has not been harmed because its 4 reverse mortgage business is presently healthy and growing. (Mutual and Review Counsel 5 Opp’n, at 35). However, Longbridge’s business might grow even if Defendants are 6 steering customers away or unfairly disparaging Longbridge’s services. Longbridge may 7 have been irreparably harmed by stymied growth due to Defendants’ actions. 8 Review Counsel also points an accusatory finger at Longbridge for paying for 9 favorable placement and ratings on competing comparison/review websites. (Id. at 36– 10 38). However, Longbridge’s alleged advertising relationship with these websites is 11 different from Mutual of Omaha’s relationship with Review Counsel and Advisory. For 12 example, Review Counsel does not contend that Longbridge owns and operates any 13 advertising website. Nor does Review Counsel contend that Longbridge is the sole 14 advertiser of a review website that was founded by a former Longbridge employee. Thus, 15 Review Counsel’s invitation to infer that Longbridge has not been harmed by Defendants’ 16 actions is unpersuasive. 17 Review Counsel also argues that the alleged harm to Longbridge, i.e. reduced 18 revenues and redirected market share, is pecuniary and thus not irreparable. (Id. at 39). 19 However, “[e]vidence of threatened loss of prospective customers or goodwill certainly 20 supports a finding of the possibility of irreparable harm.” Stuhlbarg Int’l Sales Co. v. John 21 D. Brush & Co., 240 F.3d 832, 841 (9th Cir. 2001). Further, “injury to market share can 22 constitute irreparable harm.” Monster Energy Co. v. Vital Pharms., Inc., No. EDCV 18- 23 1882 JGB (SHKx), 2023 WL 2918724, at *4 (C.D. Cal. Apr. 12, 2023). As discussed, the 24 purposes of Defendants’ websites are to promote the financial services of their paid 25 advertising partners and to provide ratings and reviews of select financial service 26 companies. (Id. at 9); (Advisory Opp’n, at 7). A necessary consequence of Defendants’ 27 websites, assuming they are successful, is the loss of customers to providers like 28 Longbridge to providers that pay for promotion under questionable circumstances. Further, 1 Longbridge’s expert suggests—though Review Counsel’s expert disputes—that rating and 2 review sites like Defendants’ could negatively affect Longbridge’s prospective customer- 3 base and goodwill. (Dholakia Decl. ¶ 107); (Dubé Decl. ¶¶ 73–84). Longbridge has 4 presented sufficient evidence of threatened loss of prospective customers and goodwill. 5 Review Counsel next argues that Longbridge’s delay of more than sixteen months 6 in seeking preliminary injunction rebuts the presumption of irreparable harm. (Mutual and 7 Review Counsel Opp’n, at 38). “Plaintiff’s long delay before seeking a preliminary 8 injunction implies a lack of urgency and irreparable harm.” Oakland Tribune, Inc. v. 9 Chronicle Publ’g Co., Inc., 762 F.2d 1374, 1377 (9th Cir. 1985). However, “‘delay is but 10 a single factor to consider in evaluating irreparable injury’; indeed, ‘courts are loath to 11 withhold relief solely on that ground.’” Cuviello v. City of Vallejo, 944 F.3d 816, 833 (9th 12 Cir. 2019) (quoting Arc of California v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014)). 13 Longbridge apparently admits it discovered Review Counsel’s false advertising in April 14 2023, when Longbridge submitted an anonymous complaint to Mutual of Omaha about the 15 Review Counsel website. Reply, at 22; Pistone Decl. ¶ 30. Longbridge then raised formal 16 complaints to relevant trade associations and state banking regulators between July 2023 17 and January 2024 before eventually filing the subject action in September 2024. Pistone 18 Decl. ¶¶ 32–34. 19 “Although a plaintiff’s failure to seek judicial protection can imply ‘the lack of need 20 for speedy action,’ such tardiness is not particularly probative in the context of ongoing, 21 worsening injuries.” Arc of California, 757 F.3d at 990 (quoting Lydo Enters., Inc. v. City 22 of Las Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984)) (internal citations omitted). Here, the 23 record reflects that the magnitude of Longbridge’s “potential harm [became] apparent 24 gradually, undermining any inference that [Longbridge] was ‘sleeping on its rights.’” Id. 25 at 990–91 (quoting Gillette Co. v. Ed Pinaud, Inc., 178 F. Supp. 618, 622 (S.D.N.Y. 1959)). 26 Longbridge attempted to resolve its claims extrajudicially by raising complaints to Review 27 Counsel and relevant associations during the delay period. The potential for harm 28 increased during this period with Advisory’s founding in January 2024. (Trask Decl. ¶ 2). 1 While Longbridge waited an additional eight months to file the action, the delay is not 2 dispositive under these circumstances. See Cuviello, 944 F.3d 816 at 833. 3 Finally, Defendants argue that any harm to Longbridge has been mooted because 4 Defendants voluntarily removed any alleged false and misleading statements on their 5 websites. “Voluntarily ceasing the conduct, however, does not necessarily moot the need 6 for injunctive relief . . . ‘if there is a substantial possibility that the act sought to be enjoined 7 may be repeated.’” Novation Sols., Inc. v. Issuance Inc., No. 23-cv-00696-WLH-KSx, 8 2023 WL 6373871, at *12 n.5 (C.D. Cal. Aug. 16, 2023) (quoting Cherokee Inc. v. Wilson 9 Sporting Goods Co., No. 15-04023 BRO (Ex), 2015 WL 3930041, at *3 (C.D. Cal. 10 June 25, 2015)) (internal citation omitted). That is the case here. Accordingly, the Court 11 finds that Defendants have failed to rebut the presumption of irreparable harm. 12 D. Balance of Equities 13 Longbridge must “demonstrate that ‘the balance of equities tips in [its] favor.’” 14 Hernandez, 872 F.3d at 995 (quoting Winter, 555 U.S. at 20). Without an injunction, 15 Longbridge will likely suffer irreparable harm, and Defendants likely will not suffer such 16 harm as they have no “equitable interest in disseminating a false advertisement.” Suzie’s 17 Brewery Co., 519 F. Supp. 3d at 855. Longbridge has established that some of Defendants’ 18 past and current statements on their websites are false and misleading. The balance of 19 equities therefore tips in favor of Longbridge. 20 E. Public Interest 21 Finally, Longbridge “must demonstrate that the public interest favors granting the 22 injunction ‘in light of [its] likely consequences,’ i.e., ‘consequences [that are not] too 23 remote, insubstantial, or speculative and [are] supported by evidence.’” Hernandez, 872 24 F.3d at 996 (quoting Stormans v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009)). A 25 “preliminary injunction is in the public interest whenever a plaintiff has established a 26 reasonable likelihood of establishing that the defendant has engaged in false advertising in 27 violation of the Lanham Act.” Suzie’s Brewing Co., 519 F. Supp. 3d at 856. This is so 28 because “the public has an interest in receiving accurate information and avoiding 1 confusion in the marketplace” and the Lanham Act was “intended to protect the consuming 2 public and competitors from false and deceiving statements which a company chooses to 3 utilize in advertising its goods or services.” Id. (quoting U-Haul Int’l, Inc. v. Jartran, Inc., 4 522 F. Supp. 1238, 1242 (D. Ariz. 1981), aff’d, 681 F.2d 1159 (9th Cir. 1982)). 5 As discussed, the law and facts clearly favor Longbridge’s claims that Defendants 6 violated the Lanham Act, UCL, and FDUTPA. The public interest factor therefore weighs 7 in favor of preliminary injunction. 8 IV. SCOPE OF INJUNCTIVE RELIEF 9 Under Federal Rule of Civil Procedure 65(d), every order granting an injunction 10 must “describe in reasonable detail—and not by referring to the complaint or other 11 document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d). “[A]n injunction 12 must be narrowly tailored . . . to remedy only the specific harms shown by the plaintiff[], 13 rather than ‘to enjoin all possible breaches of the law.’” Price v. City of Stockton, 390 F.3d 14 1105, 1117 (9th Cir. 2004) (quoting Zepeda v. INS, 753 F.2d 719, 728 n.1 (9th Cir. 1983)). 15 “Courts routinely enjoin defendants from continuing to advertise or promote their products 16 using the specific claims found to be false.” Monster Energy Co., 2023 WL 2918724, at 17 *9 (collecting cases). In light of the findings above, the Court issues the following 18 injunction: 19 1. Defendants may not advertise that Longbridge is not licensed to issue loans in 20 any state or territory where Longbridge is licensed; 21 2. Defendants may not simultaneously advertise to consumers on sponsored 22 Google-search links that they provide information relating to “Top 3” reverse 23 mortgage providers when Defendants’ landing pages advertise fewer than 24 three independent reverse mortgage providers; 25 3. Defendants may not advertise RFS on their websites as if RFS were an 26 independent reverse mortgage provider originating its own loans. This 27 includes, but is not limited to, representing that RFS has customer support 28 phone lines, reviews, and ratings that are distinct from Mutual of Omaha; 1 4. Review Counsel may not diminish the location, font, font size, font color, and 2 language of its banner disclosure—which currently states that “Review 3 Counsel is owned and operated by Mutual of Omaha Mortgage” and is present 4 on every Review Counsel webpage; and 5 5. Advisory may not diminish the location, font, font size, font color, and 6 language of any disclosures or disclaimers on its website as of January 9, 7 2025.8 8 V. BOND 9 Under Federal Rule of Civil Procedure 65(c), a court “may issue a preliminary 10 injunction . . . only if the movant gives security in an amount that the court considers proper 11 to pay the costs and damages sustained by any party found to have been wrongfully 12 enjoined or restrained.” Fed. R. Civ. P. 65(c). “Despite the seemingly mandatory 13 language, ‘Rule 65(c) invests the district court with discretion as to the amount of security 14 required, if any.’” Johnson v. Couturier, 572 F.3d at 1086 (quoting Jorgensen v. Cassiday, 15 320 F.3d 906, 919 (9th Cir. 2003)). “In particular, ‘[t]he district court may dispense with 16 the filing of a bond when it concludes there is no realistic likelihood of harm to the 17 defendant from enjoining his or her conduct.’” Id. (quoting Jorgensen, 320 F.3d at 919). 18 Review Counsel requests a bond because an injunction requiring Defendants to shut 19 down their websites or remove certain webpages would potentially inflict damages in the 20 tens of millions of dollars. (Mutual and Review Counsel Opp’n, at 44). The injunctive 21 relief here requires Defendants to do neither. All Defendants must do is maintain the 22 23 24 8 These include: (1) a paragraph near the beginning of Advisory’s landing page stating “[t]he companies 25 listed on this page compensate us as advertising partners,” (Capata Decl., at 75); (2) a sentence in italics at the near bottom of Advisory’s landing page stating “[o]ur platform receives advertising compensation 26 from certain partners. This financial relationship may influence the presence and positioning of companies on our website. However, it does not affect the integrity of our evaluation process,” (id. at 80); and (3) a 27 list of Advisory’s advertising partners at the bottom of its “Disclaimer” webpage stating, “List of Advertising Partners The following companies have paid to advertise with us: Mutual of Omaha 28 1 || voluntary changes they previously made to their websites and ensure that the number of 2 ||independent reverse mortgage providers Defendants advertise matches the number of 3 ||independent providers on Defendants’ landing pages. Costs of compliance are likely 4 ||minimal. Accordingly, the Court declines to order the filing of a bond. 5 VI. CONCLUSION 6 Based on the foregoing, the Court grants in part and denies in part Longbridge’s 7 |}motion for preliminary injunction. 8 Dated: May 13, 2025 9 2 ns Yn. 4/\ 10 Hon. Dana M. Sabraw ll United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28