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 2020, the Court consolidated the cases for pretrial purposes. ( See Copyright Docket, Dkt. No. 106.)

C. PARTIES’ ARGUMENTS

Consistent with the Court’s Individual Practices, Defendants notified Plaintiff of perceived deficiencies in the Complaint by letter dated August 7, 2020. ( See “Premotion Letter,” False Advertising Docket, Dkt. No. 108.) Defendants argue that the claims fail because (1) the purported misrepresentations are either not false or nonactionable puffery; (2) the statements are not material to a purchasing decision; and (3) ICC cannot allege injury because ICC’s own website contains more errors than UpCodes’s website.

Plaintiff responded by letter dated August 14, 2020, challenging these asserted grounds for dismissal. ( See “Opposition,” False Advertising Docket, Dkt. No. 110.) Plaintiff counters that (1) the challenged statements are not puffery and whether they are accurate is a question of fact and thus inappropriate for resolution on a motion to dismiss; (2) the statements are material, and at any rate, whether they are material is also a fact issue; and (3) the alleged errors in ICC’s website also raise fact issues, and there is no evidence that consumers are aware of the alleged errors.