Some lawyers decide to go scorched-earth style with an initial complaint in a proceeding. That is precisely the strategy undertaken by attorneys Michael A. Taitelman and Sean M. Hardy of FREEDMAN+TAITELMAN, LLP in a new lawsuit they brought on behalf of their client O’Shea Jackson Sr., more commonly known as Ice Cube.
On March 31, a complaint was filed in the Northern District of California against Robinhood, and the introduction section begins by stating that “Robinhood is an unscrupulous and predatory conglomerate that professes to be a financial services company for the everyday person. In truth, Robinhood is a wolf in sheep’s clothing. It is the archetypal example of an amoral corporation that places profits over people. Robinhood’s corporate malfeasance is no secret.” The first paragraph of that section ends with, “Robinhood is selling a garbage trading platform to the American public and laughing all the way to the bank.”
However, the underlying issue in the lawsuit has nothing to do with Ice Cube losing money from Robinhood’s platform for buying and selling equities. Instead, Ice Cube has claimed that the company used his image and likeness, without consent, to “promote Robinhood’s terrible products and services.” At its core, this is a right of publicity lawsuit, with much of the inflammatory text seemingly used to bolster a claim for damages if Ice Cube is able to prove liability.
“Human lives are simply collateral damage as Robinhood single-mindedly rushes toward an initial public offering, so its feckless and apathetic Millennial founders can jump ship and live out their days in luxury and hedonism,” is written in the second paragraph of the introduction. “Robinhood is simply another get-rich-quick scheme for the most privileged people in America. Robinhood flagrantly displays its belief that it is exempt from the rules and laws that govern everyone else in the United States.”
Ice Cube points out that Robinhood has rightfully used other celebrities, such as Jay-Z, Nas, and Jared Leto, as endorsers, but “picked on the wrong man this time” by not seeking Ice Cube’s consent before utilizing his image and likeness in a commercial manner. “In short, just as Robinhood’s recent well-known conduct has resulted in Congressional investigations and numerous class action lawsuits, so too has it stolen and diminished the hard-earned image and brand of Ice Cube, one of the most prominent Black voices in America,” states the complaint.
Yet, after putting aside the inflammatory language, it is not quite clear that Ice Cube has a slam dunk case against Robinhood. The premise of Ice Cube’s action is that a blog post published by Robinhood, with a featured image displaying Ice Cube’s likeness and a caption that reads, “Correct yourself, before you wreck yourself,” was an advertisement for financial services that created a false impression that Ice Cube endorses Robinhood’s product and services. First, Ice Cube will need to prove that the blog post highlighting that tech stocks were moving toward “correction” territory was published and disseminated for commercial purposes. The larger challenge will be showing that consumers were likely to be confused into believing that the use of Ice Cube’s image in such a fashion, which was clearly to play on the words “correct” and “correction,” imputed that he endorsed the Robinhood platform. In fact, Ice Cube does not even use the word “correct” in the popular song “Check Yourself,” which is the source for the caption.
Overall, the complaint seems heavy on disparagement but contains little in the way of strong legal claims.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at email@example.com and follow him on Twitter at @DarrenHeitner.