Manhattan Lasik Threatens Yelp Reviewer For Calling Them Scumbags Who Used Groupon As Bait-And-Switch
from the slappity-slapp-slapp dept
When will they learn? Yet another company upset by a negative review on Yelp has hired a lawyer to issue a highly questionable legal nastygram threatening a defamation lawsuit if the review wasn't removed. Paul Levy from Public Citizen has the full story of Manhattan Lasik hiring Frederic Abramson to send a legal threat to Michael Linden. Linden apparently purchased a $1795 Groupon deal for Manhattan Lasik, only to discover when he showed up that Manhattan Lasik claimed he wasn't eligible for the kind of surgery the Groupon covered. Instead, they wanted him to pay an additional $1700 for a different procedure. Linden, for obvious reasons, wasn't happy and posted a negative Yelp review back in July.A few weeks went by and Linden received a letter written by Abramson, claiming that the review was defamatory, though without saying how it was defamatory. Levy called up Abramson and found him unwilling to point out anything actually defamatory:
When I first contacted Abramson to ask what parts of the letter were allegedly false, he began by blustering that everything was defamatory, but when I laughingly asked whether it was false that the doctor “was very nice,” he quickly focused instead on the use of words like “scumbag.” Linden, he complained, had come in with a Groupon, the service covered by the Groupon would not have been right for his condition, and Linden, he said, simply refused to accept that he needed to buy a different kind of service even though, Abramson said, the reasons were given to him repeatedly. So Abramson was admitting that the underlying factual statements were true, but complaining about the opinion words used. In a similar case, a judge in Manhattan ruled that the words “scam” and “bait-and-switch” plainly reflected the consumer’s personal opinion of his dealings with a business. Abramson knows about this case, having blogged about it himself a few years ago.I like the fact that Levy calls out the fact that Abramson himself blogged about the very case that destroys his own arguments. That's a nice touch. Levy also notes that Abramson has a bit of a reputation for copyright trolling -- and got smacked down by a judge in a case we wrote about. So it's probably not a huge surprise to find out that Abramson tried the laughable trick of putting this at the bottom of his threat letter:
Abramson also complained that discount coupons were a major source of his client’s business, and have been a source for years, and he stands to suffer serious harm if consumers learn from Yelp that his discount coupons might not be worth a four-figure investment. But as Med Express recently learned the hard way, companies can't sue for defamation just because criticism can hurt business, the criticism has to be based on deliberate falsehood. And once the words are deemed opinion, they are constitutionally protected. And by the same token, I pointed out to him that if consumers needed to worry about whether the $1700 they would be spending up front for a Groupon might not do them any good, that was valuable information for consumers that ought not be suppressed.
Please be aware that this letter is copyrighted by our law firm, and you are not authorized to publish this in any manner. Use of this letter in positing, in full or in part, will subject you to further causes of action.Oh really now? It's a pretty despicable practice by some lawyers to try to claim that copyright prevents the public discussion of questionable legal threat letters designed to silence criticism. Levy notes that it appears some lawyers have been lined up to support Linden should this progress -- with one of them raising the question of whether or not Manhattan Lasik is guilty of false advertising with its Groupon promotions. Levy and that lawyer sent the NY Attorney General's office some info for them to investigate.
Of course, Levy also notes that, yet again, this is one of those unfortunate situations where NY doesn't have a very good anti-SLAPP law to hit back on these kinds of threats. It's yet another reminder why we need a strong and comprehensive federal anti-SLAPP law that will help protect people who are expressing their opinions and presenting factual information in reviews from legal bullying.
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Filed Under: anti-slapp, criticism, defamation, frederic abramson, opinion, reviews, slapp
Companies: manhattan lasik, yelp
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Umm, lawyers and The Rich again.
"we need a strong and comprehensive federal anti-SLAPP law"
-- No, calls for ANY more Federal laws are just crazy. -- That's NOT what I meant by proposing fixes! -- Far more likely that any law purporting to fix this will in fact make the bad actors utterly immune, just as Dick Armey got a law passed exempting vaccine makers from all liability.
You are EXACTLY like politicians in calling for more laws as a fix instead of calling on AGs to enforce existing laws and for the NY Bar Assoc to do some policing. I guess you're merely crazy where they're evil, but ya still ain't helpin'.
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Re: Umm, lawyers and The Rich again.
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Re: Umm, lawyers and The Rich again.
Also, no where does the situation seem to be covered and handled, and if it was, what does that have to do with this event?
B) You appear to be confused. Anti-SLAPP laws are designed to prevent the used of a lawsuit as a weapon. It provides a means for a lawsuit with no clear basis when the case relates to protected speech. It allows a judge to concern himself with the first amendment concerns before the required negotiations and extended periods of discovery. It doesn't provide immunity, it is a tool to potentially quickly end an otherwise expensive lawsuit, and allow the accused to recover fees if the judge finds that the lawsuit violates first amendment rights. That allows genuine Defemation and other suits to continue, while shutting down the 'bad apples' as you put it. Thats not granting immunity, thats providing a relief valve. Because right now, legal costs allow "Bad Apples" to go free.
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Re: Re: Umm, lawyers and The Rich again.
So, this lawsuit is being used as a weapon to silence a critic. I think you're the one who's confused here. This is exactly the situation which SLAPP is applicable.
it is a tool to potentially quickly end an otherwise expensive lawsuit, and allow the accused to recover fees if the judge finds that the lawsuit violates first amendment rights.
Exactly. Stating one's opinion is clearly a first amendment right.
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Re: Re: Re: Umm, lawyers and The Rich again.
Umm.. I think you're confused about the comment you replied to. You're arguing that he's wrong, then saying he's right, when he was telling ootb that he was wrong about there NOT being a need for a federal anti-SLAPP law.
Unless that isn't what you were getting at, as you weren't very specific or entirely clear in your comment.
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Re: Umm, lawyers and The Rich again.
You do realize that an anti-SLAPP law is basically just protecting the public against abusive companies and wealthy people?
I'd think that was kind of thing you'd support.
OOTB, never on topic, never consistent -- always wrong.
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Re: Re: Umm, lawyers and The Rich again.
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The Streisand Effect strikes again!
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What's the largest letter you can read?
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Technically EVERYTHING IN THE UNIVERSE will subject to you further causes of action..... :)
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Outside of money, his schedule was probably highly disrupted by the time taken to debate with the eye place, to apply for, get, and verify reciept of his refund. All that takes time, and often not a small amount. He also only got a refund because he immediately went in
Finally, the groupon very likely did not adequately address concerns of compatibility. As in, the groupon was a test only certain people would qualify for, and possibly not many actually would qualify for. Concerns of bait and switch are serious, and many people don't want to do business with a company who functions in this manner. If you read the yelp reviews, The company seems to have commonly offered sales on one type of cheaper, less common surgury, but not the popular ones many need or want.
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He does say he got the refund because he was in the 7 day window groupon offers for refunds, but there isn't anything to indicate that the eye place wouldn't have given it to him also.
I'm not commenting on the defamation part of the story because I think he should be able to say whatever he wants, I'm just not seeing his anger at the shop as being entirely reasonable.
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I suppose they should have given him a deal and avoided this expensive situation.
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The funny thing about defamation in the US...
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Aw damn it now I'm in trouble.
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Sue sucessfully if sue for Promissory Estoppel NOT speech
3. Bernath-Groupon contract: Plaintiff desired to enter into an agreement with Groupon to sell admissions to his tour. A condition precedent to such an agreement with Groupon was that Plaintiff must enter into a contract with Yelp, Inc. As such, Groupon was acting as the disclosed agent of Yelp, Inc.
Bernath-Yelp, Inc. contract: Plaintiff entered into the contract with Yelp solely because Groupon required it as a condition precedent to a contract with Groupon. Groupon and Plaintiff then entered into the contract.
4. As Yelp promised and represented that it would not permit disparaging and false statements on its website regarding merchants, including Plaintiff, Plaintiff did in fact post information in compliance with Groupon’s requirement and Yelp’s requirements as to permit Groupon to sell tickets to tourists. At no time did Plaintiff request or have knowledge that any of the contractees of Yelp would violate the Terms of Service of Yelp or the contract with Groupon. As such, Plaintiff reasonably relied upon the promises and Terms of Service of both Yelp and Groupon. Plaintiff’s reliance on Groupon’s representation and Yelp’s representations were reasonable and foreseeable.
5. Plaintiff is informed and believes and thereupon alleges that Linda Abundis is the true name of “Tabitha J of Eugene Oregon”
6. Groupon /Yelp and Linda Abundis Contract (Bernath 3rd Party Beneficary) Plaintiff is a third party beneficiary of the agreement between Groupon and Linda Abundis. In the agreement with Groupon and Yelp, Inc., Linda Abundis, aka Tabitha J, agrees that the services of Plaintiff are “as is” and that she knowingly and voluntarily waives all rights to “disparage” the services of Plaintiff. The purpose of this clause in the agreement to which Linda Abundis and all contractees of Groupon are bound by this waiver because people who buy services through Groupon and are buying outside new or different services than what they are accustomed to will likely disparage the services and post false and defamatory reviews on Yelp, Inc.’s website, (e.g. there is a mismatch between the accustomed preferences of Groupon users and the actual new and unique services that the businesses provide when they utilize Groupon as sellers) among other things.
7. On or about April 5, 2013, Linda Abundis in violation with the contract with Groupon to which Plaintiff is a third party beneficiary and using the anonymous name of “Tabitha J” of “Eugene Oregon” disparaged Plaintiff.
8. Linda Abundis has been struck from this action by the Circuit Court pursuant to ORS 31.150. This complaint does not involve any facts relative to those causes of action, which sounded in defamation, but with Linda Abundis’ breach of her contract with Groupon, of which Plaintiff is a third party beneficiary.
9. Plaintiff entered into a contract with Yelp, Inc. a business entity; form unknown whereby Yelp, Inc. would advertise Plaintiff’s services. As part of the first party agreement Yelp, Inc. covenants, among other things, that it will protect contractees, such as Plaintiff, from defamation when a person using an anonymous name will accuse contractee, such as Plaintiff, with committing a crime, defamations etc. by removing said false claim by a person attempting to damage a person anonymously.
10. The agreement was modified by the parties to restore all common law rights for Yelp and Plaintiff to all common law protections and restoring jurisdiction to forums that were appropriate for breach of contract and tort.
11.In fact, Yelp, Inc., to encourage circulation to its publication, has made people like the once anonymous Tabitha J of Eugene, by encouraging her and others to act untruthfully and irresponsibly so as to drive viewer traffic to Yelp, Inc.’s website e.g. to “Mouth Off” about people and businesses on the one hand, while simultaneously taking Plaintiff’s advertising money pursuant to the contract with Plaintiff. Yelp, Inc. in its irresponsible scheme to drive viewer traffic by being controversial and irresponsible[1] contracts with its writers that once a contractee writer drafts a defamation that the defamation is then the property of Yelp, Inc. so that they can use the statements of Linda Abundis in advertising on Google, Yahoo and any other platform.
12. In contradiction to urging its contract writers to “Mouth Off”, Yelp, Inc. represents and contracts: “And since user trust and transparency are important to us, anonymous users who are disruptive to the community will probably be dealt with more sternly than those who stand behind their words.”
The aforesaid clause is enforceable as it is an implied obligation to use good faith on the part of Yelp, Inc
13. The agreement between Yelp and Linda Abundis aka Tabitha J includes:
A "user" is someone who accesses, browses, crawls, scrapes, or in any way uses the Site. "We," "us," and "our" refer to Yelp.
By "use" we mean use, copy, publicly perform and display, reproduce, distribute, modify, translate, remove, analyze, commercialize, and prepare derivative works of Your Content.
We reserve the right to remove, screen, edit, or reinstate User Content from time to time at our sole discretion for any reason or no reason, and without notice to you. For example, we may remove a review if we believe it violates our Content Guidelines.
6A RESTRICTIONS
A. You agree not to, and will not assist, encourage, or enable others to use the Site to:
i. Violate our Content Guidelines, for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;
ii. Violate any third party's rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
iii. Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
iv. Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a Business Account and as expressly permitted by Yelp;
v. Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Site's search results or any third party website;
vi. Solicit personal information from minors, or submit or transmit pornography; or
vii. Violate any applicable law.
6B [Y]ou agree not to act contrary to {the foregoing contract terms}(even if permissible under applicable law) without providing 30 days' prior written notice to us here, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
14. Yelp, Inc. has enforced violations of its so called Terms of Service by removing defamations and untrue statements that were not submitted to Yelp, Inc., 30 days in advance and for the sole reason that they are disparaging of goods and/or services. Yelp, Inc. did not do so in the instant matter.
15. Yelp did not remove the disparagement even though Tabitha J had waived any right to post said defamations and Yelp did not remove the disparagement even though Tabitha J did not submit the disparagement to Yelp thirty days before publication for their review and approval and in violation of its contract with Linda Abundis aka Tabitha J.
16.Yelp, Inc., has entered into an agreement with Plaintiff for advertising in Oregon. As part of each agreement is a covenant of good faith and fair dealing whereby each party will receive what they expect in the agreement.
17. Yelp, Inc. by taking ownership of the defamations and profiting financially from the defamation and thus encouraging defamation and other untruthful statements, whilst simultaneously working on behalf of an advertiser such as Plaintiff has breached this covenant of good faith and fair dealing.
18.Alternatively, Yelp, Inc., is promissory estopped from forgoing action to remove, and has a contractual duty to Plaintiff not permit publication of defamation, accusations that Plaintiff has committed a crime or crimes as they have promised.
First Cause of Action
Breach of Contract,
Against Yelp, Defendant
19. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein
20. Defendant Yelp, Inc., entered into a contract with Plaintiff advertise his tour, to run the tourist populating portion of his enterprise, to act as de facto partner to Plaintiff, to share the fees realized from advertising on Yelp, Inc., and if the promotion failed that Yelp-as would Plaintiff-would share in the loss, to among other things to monitor their own reviews for false statements, false allegations that a person had committed a crime, all said statements by reviews employed by Yelp and of which Yelp had ownership and would and has created derivative works from false statements, would be used by Yelp, Inc. for any purpose . Yelp, Inc. encouraged false statements, and even though it was proved to Yelp, Inc. that the statements were false, disparaging and defamatory, Yelp, Inc. did refuse to remove said writings from its website Yelp.com .
21. As such, Yelp Inc., breached the agreement and breached the agreement of Good Faith and Fair Dealing found in every contract in the State of Oregon. Yelp, Inc. also are Promissorily estopped representing that false statement of fact reviews of which they own and profit from will be removed on the one hand, and then refusing to remove false statements of fact on the other hand.
22. Yelp, Inc. as the principal or agent or partner of Groupon is also promissorily estopped from on the one hand stating that they will remove disparaging comments about merchants but refusing to do so thereafter. Yelp, Inc. also is thus promissorily estopped from denying their statement that services of merchants purchased through Groupon are “as is” and said “as is” services may not be disparaged and refusing to enforce its contract agreement with Linda Abundis.
Second Cause of Action
Breach of Covenant of Good Faith and Fair Dealing
Against Yelp, Inc., Defendant
23. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein.
24. Yelp, Inc., breached the Covenant of Good Faith and Fair Dealing found in every contract in the State of Oregon by the misconduct alleged herein.
Third Cause of Action
Breach of Covenant of Good Faith and Fair Dealing
Against Yelp, Inc., Defendant
25. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein
26. Yelp, Inc. is promissorily estopped from representing that false statement of fact that reviews of which they own, control and profit from will be removed on the one hand, and then refusing to remove false statements of fact on the other hand.
Fourth Cause of Action
Negligent Misrepresentation
Against Yelp, Inc., Defendant
27. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein
28. Defendant Yelp, Inc., intended that Plaintiff rely upon the representations.
29. Plaintiff reasonably and justifiably relied upon the representations to his detriment.
30. As a proximate result of Yelp’s negligent conduct, Plaintiff has suffered and will suffer, and continues to suffer general and special damages in an amount to be proved at time of trial and within the jurisdictional limits of this complaint.
Fifth Cause of Action
Fraud
Against Yelp, Inc., Defendant
31. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein
32. Defendant Yelp, Inc. stated that defamatory, disparaging statements by its contract writers would be removed from its website Yelp.com .
33. The representations of Yelp and its agents, principals and/or partner Groupon were false and fraudulent as disparaging remarks, including false claims of Plaintiff committing crimes and being dangerous were placed into Yelp’s publication and not removed although communications with Yelp were made that said violations of Yelp’s contract be enforced.
34. Defendant Yelp, Inc. made the promises to Plaintiff with the intentional pattern and practice to deceive merchants, such as Plaintiff, so that they would provide Yelp, Inc., and Groupon with content to profit financially and not seek other opportunities to advertise or seek customers at other locations and businesses where he would not face the business destroying defamations and disparagement of Tabitha J aka Linda Abundis.
35. Accordingly, as a result of Yelp, Inc.’s, fraudulent conduct, Plaintiff has suffered and will continue to suffer compensatory, general and special damages in an amount according to proof at trial but within the jurisdictional limits of this complaint.
36. Yelp, Inc., acted with malice, fraud and/or oppression and thus, Plaintiff is entitled to an award of exemplary and punitive damages.
Sixth Cause of Action
Unfair Business Practices ORS 646.607 (1) et seq.
Against Yelp, Inc., Defendant
36. Plaintiff realleges and reincorporates paragraphs 1 through 18 as if fully stated herein.
37. Oregon’s unfair business practices act prohibits acts of unfair competition, (e.g. any fraudulent business act or practice and conduct which is likely to deceive and is fraudulent.)
38. As more fully explained herein above, Defendant’s acts and practices are likely to deceive, constituting a fraudulent business act or practice. This conduct is ongoing and continues to this date.
39. Specifically, as set forth above, Defendants engaged in deceptive business practices with respect to gaining customers to its website and related matters.
40. By engaging in the above referenced acts and/or practices alleged herein, Defendant has violated Oregon laws and regulations and said predicate acts are therefore per se violations of law.
41. Yelp’s misconduct gave, and has given, Defendant Yelp’s misconduct as alleged herein an unfair competitive advantage over their competitors. The scheme implemented by Yelp, Inc. is designed to defraud Oregon consumers and enrich Yelp, Inc.
42. The foregoing acts and practices of Yelp, Inc. have caused substantial harm to Oregon consumers.
43. As a direct result and proximate result of the aforesaid acts, Yelp, Inc., has prospered and benefitted by gaining viewership to its website by luring Plaintiff into posting his profile onto Yelp, Inc.’s website lured by Yelp’s false promises.
44. Yelp, Inc. has been unjustly enriched and should be required to disgorge their illicit profits and/or make restitution to Plaintiff and other Oregon consumers who have been harmed and be enjoined from continuing such practices. As a result of the aforesaid acts and misconduct, Plaintiff has lost money and suffered injury in fact, and other members of the public falling victims to Yelp’s false promises are likely to be injured.
45. The harm to Plaintiff and members of the general public outweigh the utility of Defendant’s de facto policy and practices and fraudulent representations. Consequently, Yelp, Inc.’s policy and practice are an unfair business act or practice.
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