March 11, 2014 8:11am PT by Eriq Gardner
Judge Trims Octavia Spencer's Endorsement Lawsuit
A Los Angeles judge has thrown out Oscar-winning actress Octavia Spencer's fraud claim against diet company Sensa Products.
The Help star sued Sensa in August over an endorsement deal that evidently went badly.
Spencer alleged that when she agreed to endorse Sensa, she made it clear that she would promote only a "healthier lifestyle" and not significant weight loss. She said she passed up a $3 million offer from another weight loss company to take Sensa's $1.25 million offer. The actress said that after she lived up to her side of the bargain with the required weight loss, Sensa began "scheming" to extradite itself from paying the actress.
Judge Michael Stern agrees, though, with Sensa's attorneys that the claims didn't support fraud. "There are a lot of allegations, but when the dust clears it's a breach-of-contract cause of action,'' said the judge at a hearing last week.
In the lawsuit, Sensa was accused of sending a termination notice to Spencer claiming she was in breach of her agreement by insisting upon adding the hashtag "#spon" at the end of her tweets for the diet product company.
#Spon is short for "sponsored," and celebrities have used this hashtag to comply with a Federal Trade Commission requirement to disclose their relationships with advertisers when making endorsements.
Spencer's tweets on behalf of Sensa included: "Bet you've seen my @SensaWeightloss commercials & wondered if it's the real deal? I'm here to say it works! #spon"
Sensa allegedly didn't like everything that Spencer was doing on social media, citing her failure to get a half-dozen tweets preapproved and her insistence on using "#spon." The actress' lawyers see this as pretext for getting out of paying $700,000 due to her under her contract.
Spencer says she went "above and beyond" her contractual obligations by allowing the weight loss company, despite her reluctance, to use before and after photographs and have advertisements placed in tabloids.
According to Sensa's legal papers, however, her endorsement contract specifically forbade Spencer from withholding approval to any creative material in a marketing campaign because it mentioned her weight loss or included before and after photos.
"There cannot be a claim for fraud or breach of the implied covenant based on conduct expressly permitted by the integrated, written agreement between the parties and the plaintiffs' admitted conduct," said the diet company's lawyers. "The plaintiffs know this. The fraud and breach of implied covenant claims are only included in the First Amended Complaint as part and parcel of the plaintiffs' continuing efforts to smear Sensa Products' name with court filings and press releases to the media concurrent with the commencement of this litigation."
Although the judge dismissed the fraud claim, he allowed to survive a cause of action for breach of the covenant of good faith and fair dealing. A trial is scheduled for Oct. 27.