The U.S. Court of Appeals for the Sixth Circuit refused to allow a moviegoer to hold the distributor of a motion picture liable for false advertising based on a trailer that the plaintiff claimed contained anti-Semitic messaging.

When the motion picture Drive was released in 2011, Michigan resident Martin Leaf first viewed the trailer and then the movie itself, in the company of a friend. Leaf represented the friend in a lawsuit filed in state court, alleging violations of the Michigan Consumer Protection Act (MCPA).

The complaint alleged the movie theater and the film’s distribution company violated the MCPA by marketing the film in a way that concealed both the film’s anti-Semitic nature and its slow, “art house” pace. A trial court judge dismissed the case on the merits in 2013, and a panel of the Michigan Court of Appeals affirmed dismissal.

Leaf responded by filing a second complaint in Michigan federal court, this time on his own behalf. He alleged that the movie, standing alone, violated the MCPA due to the subliminal nature of its anti-Semitism, and the trailer violated the statute by not disclosing the film’s anti-Semitism.

The district court found that the relationship between Leaf and his client in the state court lawsuit sufficed to bind him under the doctrine of res judicata. The Sixth Circuit disagreed, finding that Leaf was not in privity with his client.

Instead, the federal appellate panel affirmed dismissal of the suit on alternative grounds.

“Leaf concedes that the allegedly anti-Semitic content was immediately apparent to him ‘upon first viewing,’” the court wrote. “He alleges that ‘the anti-Semitic messages would not be understood to be anti-Semitic by the vast majority of viewers,’ but this assertion is unsupported by factual allegations. Even if Leaf adequately alleged that other viewers might not notice the alleged anti-Semitism, Leaf himself must experience an injury caused by the film, but he admits that he was not misled.”

Further, the plaintiff’s claims based on the trailer failed because he lacked the requisite “positive” misrepresentation, the court said, as the trailer did not affirmatively represent that Drive did not promote anti-Semitism.

“Even assuming that the film contained anti-Semitic messaging, Leaf makes no allegation that the trailer made affirmative representations suggesting that the opposite was true,” the panel wrote. “Rather, he alleges only that ‘[t]here were no indications in the trailer that Drive was anti-Semitic, and/or promoted anti-Semitism.’ This type of allegation is insufficient to state a claim under [the MCPA].”

To read the decision in Leaf v. Refn, click here.

Why it matters: While the Sixth Circuit affirmed dismissal of the lawsuit on the merits (finding res judicata did not apply), the panel wasted little ink on the plaintiff’s contention that the film concealed anti-Semitic references and the defendants failed to notify audiences of that fact in the trailer for the movie.