UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ COTY LEWIS, individually and on behalf of a class of │ similarly situated persons, │ Plaintiff-Appellant, > No. 22-1406 │ │ v. │ │ ACUITY REAL ESTATE SERVICES, LLC; KEVIN │ STUTEVILLE, │ Defendants-Appellees. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:21-cv-12319—Thomas L. Ludington, District Judge.

Argued: December 8, 2022

Decided and Filed: April 4, 2023

Before: MOORE, STRANCH, and MURPHY, Circuit Judges. _________________

COUNSEL ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Jonathan B. Frank, FRANK & FRANK LAW, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Matthew E. Gronda, MATTHEW E. GRONDA, J.D., P.L.C., St. Charles, Michigan, for Appellant. Jonathan B. Frank, FRANK & FRANK LAW, Bloomfield Hills, Michigan, for Appellees. _________________

OPINION _________________

MURPHY, Circuit Judge. Acuity Real Estate Services operates a website that connects people looking to buy or sell homes with a local real-estate agent in their area. Acuity offers its No. 22-1406 Lewis v. Acuity Real Estate Servs., et al. Page 2

services for free to home buyers and sellers but requires realtors to pay a fee for referrals. The real-estate broker that employed Coty Lewis, a real-estate agent, signed up to receive Acuity’s referrals. The broker required its agents (including Lewis) to pay Acuity’s fee out of their commissions from home sales. In this suit, Lewis alleges that Acuity makes false claims to home buyers and sellers on its website and that this false advertising violates the Lanham Act, 15 U.S.C. § 1125(a)(1)(B). But the Lanham Act provides a cause of action only for businesses that suffer commercial injuries (such as lost product sales) from the challenged false advertising. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 131–32 (2014). The Act does not provide a cause of action for customers who suffer consumer injuries (such as the cost of a defective product) from the false advertising. See id. And here, Lewis alleges this type of consumer harm as his injury from Acuity’s allegedly false advertising: He seeks to recover the referral fee (that is, the price) he paid for Acuity’s services. Because Lewis may not bring this claim under the Lanham Act, we affirm the district court’s dismissal of his complaint.

I

Because this case comes to us from an order granting a motion to dismiss, we must accept the complaint’s well-pleaded factual allegations as true. See Rudd v. City of Norton Shores, 977 F.3d 503, 511 (6th Cir. 2020).

Lewis, a licensed real-estate agent, provides his realtor services to buyers and sellers of homes in and around Saginaw County, Michigan. Compl., R.1, PageID 2. At the times relevant to this suit, he was a member of Re/Max New Image, a brokerag