Company Sues Customer For $1 Million, Claiming Yelp Review Was 'Defamatory,' Violated Non-Disparagement Clause

from the wrong-on-both-counts dept

A Dallas pet-sitting company had a small problem. HAD. But it approached it badly and now it has a much larger one.

It tried to enforce a "non-disparagement" clause to silence an unhappy customer. Copied nearly word-for-word from what is now known as "KlearGear boilerplate," the clause forbade customers from uttering a discouraging word under pain of whatever Prestigious Pets might come up with (including wholly made-up damages on top of legal fees, etc.), and awarded itself "sole discretion" to determine what words/actions would trigger the clause.

An unhappy couple posted a review to Yelp with some mild criticisms of the company -- the worst of it being that the "independent contractor" the company provided had not taken care of the customer's fish particularly well and that Prestigious Pets was difficult to get ahold of.

First, the company's legal rep sent a letter to the customers disputing every claim made in the Yelp review and informing them that their refusal to discuss the issues with Prestigious Pets "violated the spirit" of its bogus non-disparagement clause.

Then it filed a claim for $6,766 against the couple in small claims court, listing everything from "lost work opportunities" to "libelous and slandurous [sic] harm" to violation of the non-disparagement clause. This action produced completely predictable results. The couple aired their grievances even more publicly as the story of Prestigious Pets' clause and retaliatory legal actions began to make its way from local news stations to nationally-read websites.

The couple retained counsel to file an anti-SLAPP motion against the company's claims. But Prestigious Pets, stung by the backlash to its attempted enforcement of its clause, withdrew its small claims court filing (instantly mooting the anti-SLAPP motion) and filed a million dollar lawsuit instead.

Its new lawsuit may contain more detail than its small claims court filing, but it's not any more valid than its earlier effort. And its reasons for filing a "larger" lawsuit are questionable, as Paul Alan Levy of Public Citizen (who is assisting in the legal battle against Prestigious Pets) points out.

The company claims that the relief in its new lawsuit is justified because its business dried up in the face of the publicity about its lawsuit, and it brought new claims against Robert Duchouquette because he had appeared in media interviews where he objected to having been sued in the first place.   But at this point, the Duchouquettes were not only defendants in a lawsuit for a potentially bankrupting amount of damages, but they had to consider the significant up-front expense of having to pay their lawyers for the hourly expense of defending themselves against a SLAPP suit – the small claims suit alone had subjected them to a ten thousand dollar legal bill.

The statement made by the Duchouquettes that seems to most offend the pet sitting company deals with simple facts. The allegations by Prestigious Pets contain phrases never used by the Duchouquettes ("[T]he Duchouquettes have made it an ongoing campaign to tell the world that Prestigious Pets and Kalle almost killed their fish or at least potentially harmed it (without any evidence to support such a claim)...") and indisputable facts: there was excess food on the bottom of the aquarium, the water was cloudy, and overfeeding is almost always bad for fish, no matter what breed.

The couple's motion to dismiss [PDF] attacks Prestigious Pets' use of a non-disparagement clause that gives the company the "right" to severely limit its customers' speech.

Prestigious Pets’ standard contract—which includes a non-disparagement clause—is shockingly one-sided. It strips consumers of their fundamental rights of free speech, arguably going so far as to even bar consumer actions protected by law such as filing a lawsuit in response to egregious wrongdoing by the company. It provides for the recovery of attorneys’ fees—only against the consumer. It sets Prestigious Pets up as the sole judge and jury to determine whether the non-disparagement clause has been violated. Perhaps worst of all, the contract even goes beyond simply barring speech that injures Prestigious Pets, and actually seeks to bar “any action” that in any way—in Prestigious Pets’ sole estimation—harms the company.

What's really bizarre about this entire debacle is that Prestigious Pets tried to distance itself from this non-disparagement clause by claiming it was inserted by "professionals" who assisted with crafting the company's service agreement. This bizarre post-blowup stiffarm attempts to imply the company is somehow blameless, if not entirely powerless to halt the events set in motion by a service agreement the company apparently had no direct input in compiling. Having such a clause in a service agreement is just stupid. Trying to enforce it to shut up critics is suicide. And, as is noted by Levy, Prestigious Pets has already tried to use the clause against another unhappy customer.

There appears to be almost no chance this lawsuit will survive a motion to dismiss. But if anyone's going to learn what needs to be learned from this experience, the anti-SLAPP motion will also need to be granted, along with a fee shift that compensates these customers for enduring a particularly inept defamation suit.

Filed Under: anti-slapp, dallas, non-disparagement, pet sitting, pets, robert duchouquette, slapp, texas
Companies: prestigious pets, yelp

Stung By Yelp Reviews, Health Providers Spill Patient Secrets

from the HIPAA-HIPAA dept

Burned by negative reviews, some health providers are casting their patients' privacy aside and sharing intimate details online as they try to rebut criticism.

In the course of these arguments -- which have spilled out publicly on ratings sites like Yelp -- doctors, dentists, chiropractors and massage therapists, among others, have divulged details of patients' diagnoses, treatments and idiosyncrasies.

One Washington state dentist turned the tables on a patient who blamed him for the loss of a molar: "Due to your clenching and grinding habit, this is not the first molar tooth you have lost due to a fractured root," he wrote. "This tooth is no different."

In California, a chiropractor pushed back against a mother's claims that he misdiagnosed her daughter with scoliosis. "You brought your daughter in for the exam in early March 2014," he wrote. "The exam identified one or more of the signs I mentioned above for scoliosis. I absolutely recommended an x-ray to determine if this condition existed; this x-ray was at no additional cost to you."

And a California dentist scolded a patient who accused him of misdiagnosing her. "I looked very closely at your radiographs and it was obvious that you have cavities and gum disease that your other dentist has overlooked. ... You can live in a world of denial and simply believe what you want to hear from your other dentist or make an educated and informed decision."

Health professionals are adapting to a harsh reality in which consumers rate them on sites like Yelp, Vitals and RateMDs much as they do restaurants, hotels and spas. The vast majority of reviews are positive. But in trying to respond to negative ones, some providers appear to be violating the Health Insurance Portability and Accountability Act, the federal patient privacy law known as HIPAA. The law forbids them from disclosing any patient health information without permission.

Yelp has given ProPublica unprecedented access to its trove of public reviews -- more than 1.7 million in all -- allowing us to search them by keyword. Using a tool developed by the Department of Computer Science and Engineering at the NYU Polytechnic School of Engineering, we identified more than 3,500 one-star reviews (the lowest) in which patients mention privacy or HIPAA. In dozens of instances, responses to complaints about medical care turned into disputes over patient privacy.

The patients affected say they've been doubly injured -- first by poor service or care and then by the disclosure of information they considered private.

The shock of exposure can be effective, prompting patients to back off.

"I posted a negative review" on Yelp, a client of a California dentist wrote in 2013. "After that, she posted a response with details that included my personal dental information. … I removed my review to protect my medical privacy."

The consumer complained to the Office for Civil Rights within the U.S. Department of Health and Human Services, which enforces HIPAA. The office warned the dentist about posting personal information in response to Yelp reviews. It is currently investigating a New York dentist for divulging personal information about a patient who complained about her care, according to a letter reviewed by ProPublica.

The office couldn't say how many complaints it has received in this area because it doesn't track complaints this way. ProPublica has previously reported about the agency's historic inability to analyze its complaints and identify repeat HIPAA violators.

Deven McGraw, the office's deputy director of health information privacy, said health professionals responding to online reviews can speak generally about the way they treat patients but must have permission to discuss individual cases. Just because patients have rated their health provider publicly doesn't give their health provider permission to rate them in return.

"If the complaint is about poor patient care, they can come back and say, 'I provide all of my patients with good patient care' and 'I've been reviewed in other contexts and have good reviews,' " McGraw said. But they can't "take those accusations on individually by the patient."

McGraw pointed to a 2013 case out of California in which a hospital was fined $275,000 for disclosing information about a patient to the media without permission, allegedly in retaliation for the patient complaining to the media about the hospital.

Yelp's senior director of litigation, Aaron Schur, said most reviews of doctors and dentists aren't about the actual health care delivered but rather their office wait, the front office staff, billing procedures or bedside manner. Many health providers are careful and appropriate in responding to online reviews, encouraging patients to contact them offline or apologizing for any perceived slights. Some don't respond at all.

"There's certainly ways to respond to reviews that don't implicate HIPAA," Schur said.

In 2012, University of Utah Health Care in Salt Lake City was the first hospital system in the country to post patient reviews and comments online. The system, which had to overcome doctors' resistance to being rated, found positive comments far outnumbered negative ones.

"If you whitewash comments, if you only put those that are highly positive, the public is very savvy and will consider that to be only advertising," said Thomas Miller, chief medical officer for the University of Utah Hospitals and Clinics.

Unlike Yelp, the University of Utah does not allow comments about a doctor's medical competency, and it does not allow physicians to respond to comments.

In discussing their battles over online reviews, patients said they'd turned to ratings sites for closure and in the hope that their experiences would help others seeking care. Their providers' responses, however, left them with a lingering sense of lost trust.

Angela Grijalva brought her then 12-year-old daughter to Maximize Chiropractic in Sacramento, Calif., a couple years ago for an exam. In a one-star review on Yelp, Grijalva alleged that chiropractor Tim Nicholl led her daughter to "believe she had scoliosis and urgently needed x-rays, which could be performed at her next appointment. … My daughter cried all night and had a tough time concentrating at school."

But it turned out her daughter did not have scoliosis, Grijalva wrote. She encouraged parents to stay away from the office.

Nicholl replied on Yelp, acknowledging that Grijalva's daughter was a patient (a disclosure that is not allowed under HIPAA) and discussing the procedures he performed on her and her condition, though he said he could not disclose specifics of the diagnosis "due to privacy and patient confidentiality."

"The next day you brought your daughter back in for a verbal review of the x-rays and I informed you that the x-rays had identified some issues, but the good news was that your daughter did not have scoliosis, great news!" he recounted. "I proceeded to adjust your daughter and the adjustment went very well, as did the entire appointment; you made no mention of a 'misdiagnosis' or any other concern."

In an interview, Grijalva said Nicholl's response "violated my daughter and her privacy."

"I wouldn't want another parent, another child to go through what my daughter went through: the panic, the stress, the fear," she added.

Nicholl declined a request for comment. "It just doesn't seem like this is worth my time," he said. His practice has mixed reviews on Yelp, but more positive than negative.

A few years ago, Marisa Speed posted a review of North Valley Plastic Surgery in Phoenix after her then–3-year-old son received stitches there for a gash on his chin. "Half-way through the procedure, the doctor seemed flustered with my crying child. ...," she wrote. "At this point the doctor was more upset and he ended up throwing the instruments to the floor. I understand that dealing with kids requires extra effort, but if you don't like to do it, don't even welcome them."

An employee named Chase replied on the business's behalf: "This patient presented in an agitated and uncontrollable state. Despite our best efforts, this patient was screaming, crying, inconsolable, and a danger to both himself and to our staff. As any parent that has raised a young boy knows, they have the strength to cause harm."

Speed and her husband complained to the Office for Civil Rights. "You may wish to remove any specific information about current or former patients from your Web-blog," the Office for Civil Rights wrote in an October 2013 letter to the surgery center.

In an email, a representative of the surgery center declined to comment. "Everyone that was directly involved in the incident no longer works here. The nurse on this case left a year ago, the surgeon in the case retired last month, and the administrator left a few years ago," he wrote.

Reviews of North Valley Plastic Surgery are mixed on Yelp.

Health providers have tried a host of ways to try to combat negative reviews. Some have sued their patients, attracting a torrent of attention but scoring few, if any, legal successes. Others have begged patients to remove their complaints.

Jeffrey Segal, a one-time critic of review sites, now says doctors need to embrace them. Beginning in 2007, Segal's company, Medical Justice, crafted contracts that health providers could give to patients asking them to sign over the copyright to any reviews, which allowed providers to demand that negative ones be removed. But after a lawsuit, Medical Justice stopped recommending the contracts in 2011.

Segal said he has come to believe reviews are valuable and that providers should encourage patients who are satisfied to post positive reviews and should respond -- carefully -- to negative ones.

"For doctors who get bent out of shape to get rid of negative reviews, it's a denominator problem," he said. "If they only have three reviews and two are negative, the denominator is the problem. ... If you can figure out a way to cultivate reviews from hundreds of patients rather than a few patients, the problem is solved."

ProPublica is a Pulitzer Prize-winning investigative newsroom. Sign up for their newsletter. Reposted from ProPublica via its CC-BY-NC-ND license.

Filed Under: dentists, doctors, hipaa, medical practitioners, patient info, patients, privacy, reviews
Companies: yelp

Tax Prep Company Tries To Sue Unhappy Customer Into Silence; Hit With Damages In Anti-SLAPP Order

from the or,-how-to-make-one-opinion-REALLY-MATTER dept

An anti-SLAPP win has just been handed down in Nevada, one of the few states with a strong anti-SLAPP law. At the center of the failed defamation lawsuit is (you guessed it) a negative review of a business posted at Yelp.

Pamela Boling (represented by Marc Randazza) hired IQTaxx to prepare her taxes, including the filing of a hardship notice. IQTaxx failed to do so. Boling tried to speak to the company about its failure to file the hardship paperwork, but after several attempts she was routed to a third-party number which informed her that the tax preparer's number was no longer in service.

Boling turned to Yelp and left a review detailing her experience with the company. Her review was headlined "This is MALPRACTICE!" Shortly thereafter, IQTaxx sent a cease-and-desist to Boling over her "exaggerated emotional rant review" -- wording it should have known would be fatal to its claims of defamation. Defamation does not cover exaggerations or emotional rants, but rather false statements purporting to be facts.

The court finds the company has failed to satisfy both prongs of Nevada's anti-SLAPP test. Not only that, but it has failed in pretty much all respects when it comes to pursuing a libel suit.

There is no dispute that Yelp is a well-known public forum. and Defendant has provided evidence that her allegedly defamatory statements were not made with knowledge of their falsity. Plaintiff failed to provide evidence tending to show that Defendant knew her statements were false when she made them. Defendant thus made the statements at issue in good faith under NRS 41.637(4). Defendant proved by a preponderance of the evidence that her statements were on a matter of public interest, in a public forum, and were made without knowledge of their falsity.

As for the second prong -- prevailing on the suit's merits -- the court similarly finds almost nothing to work with.

Plaintiff has failed to meet its burden under NRS 41.660(3)(b). Statements of opinion and rhetorical hyperbole are not actionable, as Supreme Court precedent establishes that "there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Gertz v. Robert Welch, 418 US. 323, 339-40 (1974).

In other words, the Supreme Court has said the best defense against speech one doesn't like is more speech, not lawsuits.

The court adds that the context of the disputed assertions also plays a significant part in its interpretation.

Context is vitally important in determining whether a reasonable person is likely to view a statement as one of fact, or one of protected opinion or rhetorical hyperbole. The context of Defendant's statements is Yelp, a well-known online forum for consumer reviews. The Internet is the modern equivalent of the soapbox on the sidewalk, and web sites such as Yelp are the type of public forum that is protected under the First Amendment.

The public has become accustomed to seeing fiery rhetoric on online fora, and courts recognize that this context makes it less likely that a reader will interpret statements published in such places as actionable statements of fact.

The court then notes that IQTaxx's sole claim basically doomed its lawsuit from the start.

Plaintiff only asserts that the statement "This is MALPRACTICE!" is defamatory, meaning that only Defendant's September 11, 2015 Yelp review is properly considered in determining whether Plaintiff has met its burden. The statement "This is MALPRACTICE!" with the term "malpractice" in all capital letters and with an exclamation mark, in the context of a Yelp review, is a protected statement of rhetorical hyperbole that cannot make out a claim for defamation.

[...]

Defendant's statements are protected statements of emotional hyperbolic opinion. The average Yelp user would not read the statement "This is MALPRACTICE!" with the central term in all capital letters and with an exclamation mark as a carefully considered legal opinion.

IQTaxx must now pay Boling $1,000 in statutory damages, and the person it tried to sue in shutting up can also go after it for legal fees. The tax preparer has several options available to address the negative review, but chose the one that hurt it the most. Rather than just being known for questionable customer service, the company is now known for suing critics and losing badly.

Filed Under: anti-slapp, nevada, pamela boling, reviews
Companies: iqtaxx, yelp

Florida Moving Company Attempting To Sue Its Way Back To Yelp Respectability

from the unhappy-company-v-unhappy-customers dept

Superior Moving and Storage of Pompano Beach, Florida, has a problem. Or rather, several problems. One problem is that Yelp has issued a warning about its review page, noting that it has seen some suspicious activity ["a number of positive reviews from the same IP address"] that suggest an unethical effort to skew its rating.

It has apparently decided to sue its way out of these problems. Pompano Beach's Local 10 is reporting the story of one Yelp reviewer who has been served with a defamation lawsuit by the moving company.

Local 10 News viewer Scott Hooton claims he was sued for posting a negative online business review.

The Pompano Beach-based moving company behind the suit claims the statements made online were false and have sued Hooton for damages related to defamation.

[...]

"They sued me. Served papers right here on this porch," Hooton said.

The suit is seeking damages of excess of $15,000 for defamation related to what the company calls "false statements" made by Hooton in his online posting.

Where this dollar amount comes from isn't clear. It's not listed in the lawsuit's demands.

However, this sort of thing isn't surprising. Many companies have tried this tactic. Most have been unsuccessful. Then there's this:

"His lawyer offered to settle," Hooton said.

This indicates the company's claims aren't quite as solid as it would like them to be. If your case is strong, you generally don't chase filings with settlement offers. Unless you're doing them in bulk

Superior Moving has filed five libel suits against unhappy customers in the past five months, with three of those coming in the space of three weeks.


The company is likely on unsure footing here, as it has spent much more of its time in the Broward County courthouse as a defendant. Since 1998, Superior Moving has been taken to court 31 times for everything from small claims to unpaid debts/violated contracts to fraud.


Many of the small claims cases are due to damages to belongings, homes and vehicles belonging to customers. As you can probably guess, many of the complaints being called defamatory also deal with the same sort of damages.

But do the lawsuits have any merit? Well, we could ask David S. Weinstein, Local 10's "legal expert…"

"The First Amendment protects free speech, but it protects truthful free speech. You still can't yell 'fire' in a crowded theater if there's no fire in a crowded theater."

Never mind. Here's the extent of the claims made against Hooton.

7. On or about January 2015, Superior and Hooton executed a Guaranteed/Binding Estimate [the "Estimate"] for a residential move.

8. Thereafter, Defendant executed the following documents:

a. An Order for Service;

b. A Uniform Household Goods Bill of Lading and Freight Bill;

c. A Household Goods Descriptive Inventory;

d. A Superior Additional Terms and Conditions Interstate Moves Contract; and

e. A Superior Long Distance Addendum to Contract.

9. Pursuant to the Contract, Superior was ready willing and able to pick up the Defendant's furniture and other items, as outlined on the estimate, however, Defendant Hooton, without cause terminated the contract for the move.

10. Despite the fact that Superior was ready, willing and able to fulfill its contract, the Defendant has been defaming Superior in online postings. Defendant published the following false statements about Superior: "They get you on the hook for a low price without completely understanding the work. Then they apply additional charges until it's unbearable."

11. Each and every one of the above statements is false.

And here are the damages claimed, one of which is "we had to hire a lawyer to file these lawsuits."

12. Superior has been required to retain the undersigned counsel to represent it in this action and is obligated to pay said counsel a reasonable fee for services rendered.

13. As a direct and proximate result of the foregoing false statements, Superior has been damaged.

The claims listed above are similar to those in the other defamation lawsuits, with the only difference being the direct quotes taken from the defendants' Yelp/BBB reviews and complaints. Hooton has already responded to Superior's complaint, denying the allegations and pointing out that he never "executed" the documents Superior said he did. Rather, he backed out of the contract when the add-ons moved the cost well above the original estimate.

Hooton's comments are obviously his opinion of the estimate process, which he viewed as bait-and-switch. It would be a stretch to call his statements defamatory, and even more of stretch to claim they caused recoupable damage.

Other suits may have (slightly) more merit that Hooton's, as other Yelp reviewers were a bit more creative in their expressions of dissatisfaction. The interesting thing is that all the suits target negative reviews at Yelp. These would be the same negative reviews that currently greet people surfing to Superior Moving's Yelp page.

If the intention of the lawsuits was to pressure reviewers to kill their negative Yelp reviews, it hasn't worked. Superior seems to have a valid complaint about Yelp itself, and yet it has made no visible effort to direct its legal efforts towards that company.

"Superior Moving & Storage was a paid advertiser with Yelp for many years. During those paid years, he maintained a "5 Star Rating" while paying substantial fees for advertisement and web presence," Manes said.

"When my client decided to discontinue advertising and maintaining a Yelp Page due to consistent increases in the fees and costs imposed on his business by Yelp, his rating suddenly dropped. Shortly after, Yelp began removing many of his 5 Star reviews stating they had violated Yelp's terms, and only publishing negative reviews."

Of course, this could just be the company's highly-subjective view of the current situation, in which certain normal Yelp actions are viewed as conspiratorial and correlative. Even if Superior's claims are true, it would be a long, expensive fight to prove it. Superior seems to realize this battle isn't worth fighting, but it's applying the same sort of pressure on its critics by filing these lawsuits -- implying an expensive legal battle awaits if the defendants aren't willing to settle.

Companies should be able to defend their reputations, but using the legal system to do it isn't the best tactic. Superior may be concerned that Yelp's review page will scare off potential customers. But acquiring a reputation as a company that will sue people for posting negative reviews can have an equally adverse effect.

Filed Under: florida, lawsuits, reputation, reviews
Companies: superior moving and storage, yelp

Judge Not At All Impressed By Class Action Lawsuit Claiming Yelp Reviewers Are Really Employees

from the the-court-is-Not-Your-Personal-Army dept

Late in 2013, a few like-minded individuals decided Yelp owed them money for all the reviews they had voluntarily written over the years. The class action suit bascially alleged Yelp's machinery was lubricated with the blood of unpaid reviewers. The original filing threw off the shackles of normal, dry legal prose in favor of phrases like "thumbing its nose at workers… and taxing authorities," "dependent on a horde of non-wage-paid reviewers," "system of cult-like rewards and disciplines," and "a 21st-century galley slave ship with pirates banging the drums."

All in all, the original complaint reads more like a screed against content farming than a list of recognizable torts. Somehow, it has managed to survive a venue shift and the ineptitude of the plaintiffs' counsel, as well as a complete dismissal. But only barely. And with the threat of Anti-SLAPP fees looming over it. In the opinion granting the smallest of leeway to the complaining party, the judge first notes that not only are they supposed to state coherent claims, but they're also supposed to explain why they're entitled to relief. The court has some problems with the claims themselves.

Here, each of the three named plaintiffs alleges that he or she “was hired by Yelp, Inc. as a writer and she fulfilled that job description and job functions.” Each plaintiff allegedly was “directed how to write reviews and given other such employee type direction from employer defendant.” Yelp allegedly controlled each plaintiff’s “work schedule and conditions.” Two of the three plaintiffs are alleged to have been “fired” with “no warning [and] a flimsy explanation.”

Clearly a violation of labor laws... except for the part where the plaintiffs wholly misrepresented the actual situation.

A reasonable inference to be drawn from the complaint, and from plaintiffs’ arguments, is plaintiffs use the term “hired” to refer to a process by which any member of the public can sign up for an account on the Yelp website and submit reviews, and the term “fired” to refer to having their accounts involuntarily closed, presumably for conduct that Yelp contends breached its terms of service agreement. A further reasonable inference is that plaintiffs and the putative class members may contribute reviews under circumstances that either cannot be reasonably characterized as performing a service to Yelp at all, or that at most would constitute acts of volunteerism.

As such, the labor law cited by the plaintiffs is inapplicable, since it does not cover voluntary acts, even if said acts are monetized by the defendant. That being said, the judge doesn't completely close the door on this particular claim. He notes that it may be possible (but highly unlikely) that a recognizable labor law claim can be raised from this mess of a lawsuit and has given the plaintiffs 20 days to file an amended complaint.

Yelp asked the court for damages under California's Anti-SLAPP law, claiming the lawsuit was nothing more than an attempt to chill its speech, seeing as the claims themselves were baseless and publishing reviews is (duh) a protected form of speech. The court has some sympathy for this argument, partially because the plaintiffs were unable to respond coherently to Yelp's Anti-SLAPP motion.

Plaintiffs offer a strident argument, marked by ad hominem attacks on counsel, that the anti-SLAPP statute is inapplicable because they merely seek to hold Yelp liable under quasi-contractual theories for non-payment of wages, not for exercising any free speech rights. A plaintiff’s theory of liability, however, is not relevant to the question of whether the claim “arises from” a defendant’s exercise of free speech rights. As alleged, Yelp publishes information— reviews—regarding the services and goods various business establishments offer to the public. Plaintiff’s claims plainly arise from that conduct, which undisputedly involves speech on matters of public interest.

Unfortunately, the ad hominem attack on Yelp that was filed instead of a proper response is buried somewhere in the mess of a docket -- something that has less to do with a venue move and the consolidation of filings, and more to do with the plaintiffs' counsel being mostly incompetent. (A read through other filings makes it clear the counsel humored the plaintiffs' desire to be cast as warriors railing against an unjust system, rather than steer them towards articulable arguments and claims.)

Both before and after the transfer of this action to this district, plaintiffs have filed various pleadings with confusing titles in the captions and/or garbled descriptions and/or incorrect event types in the electronic docket entries. As a result, the court in the Central District issued several orders striking certain of plaintiffs’ submissions. Complaining that plaintiffs’ filings in this district failed to comply with the local rules on notice, and that various ambiguities now exist as to what motions are pending and as to the briefing schedules, defendant seeks “administrative relief” under Local Rule 7-11. Defendant requests an order vacating the current hearing, and postponing at least one of plaintiffs’ motions until after a case management conference has been held.

[...]

More problematically, plaintiffs failed to set the hearing in the ECF system, with the result that no briefing schedule appeared in the docket entry. It is counsel’s responsibility to learn to use the ECF system correctly, and he is hereby directed to undertake appropriate steps to ensure that he and/or his office staff can file and docket pleadings in the proper manner.

Whether or not this sort of ineptitude led to the plaintiffs' counsel being disciplined by the State Bar isn't made explicit, but a later motion by the plaintiffs attempted to obtain an injunction against the Bar's proceedings as well as add it (!) as a defendant. This was denied.

Whatever the case, the judge finds both prongs of the Anti-SLAPP test have been met (the second being the failure to state a viable claim), but says it's still too early to consider the question of awarding fees. The plaintiffs have also asked for sanctions to be awarded against Yelp, but the judge notes he's doing most of the work in discerning what it is the plaintiffs are actually seeking.

Plaintiffs seek sanctions against Yelp and its counsel. Although the precise basis of plaintiffs’ complaints and the scope of the relief they seek are difficult to discern from their rambling and invective-filled papers, the gist appears to be a contention that Yelp did not exercise good faith in connection with a court-ordered mediation session, and that it should therefore be placed into “default” status until it funds and participates in a new mediation session, and pays monetary penalties to the court. Plaintiffs have failed to make a persuasive showing that Yelp or its counsel engaged in sanctionable misconduct, or that the relief they seek would be warranted in any event. The motion for sanctions is denied.

The only remaining option for the plaintiffs at this point is to file a coherent set of claims that might have a chance at surviving more than a cursory examination. The plaintiffs may have entered the legal arena with every intention of extracting paychecks for their voluntary efforts, but given this opinion, the likelihood of them losing both the case and their money seems much more probable.

Filed Under: class action, employees, employment, reviews, volunteers
Companies: yelp

Virginia's Top Court Refuses To Unmask Anonymous Yelp Reviewers, But Not For First Amendment Reasons

from the technically-a-'win' dept

The long-running defamation suit against anonymous Yelp reviewers -- brought by Hadeed Carpet Cleaning -- finally has produced some good news… sort of. Hadeed's lawsuit defines "problematic," seeing as it both threatens anonymous speech and is predicated not on actual defamatory statements, but on the allegations that the reviewers were never actual customers of the business. Hadeed has argued that a review from a non-customer is defamation in and of itself, which obviously contains some very negative implications for free speech -- anonymous or not -- if he succeeds in his legal efforts.

Two lower courts chose to apply Virginia state law rather than the Dendrite Rules, and ordered Yelp to turn over identifying information. That decision was appealed by Yelp, and the state's Supreme Court has responded by rejecting Hadeed's unmasking request… but not for First Amendment reasons. Instead, its decision is based on a technicality -- one that does little to ensure the future protection of anonymous speech.

[T]he Virginia Supreme Court issued its ruling (PDF) in favor of Yelp, finding that the company doesn't have to disclose any user information, because the lawsuit shouldn't have been filed in Virginia in the first place.

The court's decision to focus solely on the issue of jurisdiction means that the more important public policy argument—whether the Yelp reviewers have a right to anonymous speech in this case—goes unaddressed.

While it is helpful that the court has made it clear that Virginia entities don't possess subpoena power over non-residents, that's pretty much the extent of the good news for Virginia residents. The other silver lining is that if Hadeed continues to pursue these reviewers, he'll have to do it in California, where he'll need to meet a higher standard if he hopes to obtain any identifying information.

"Although we were hoping the court would rule on both jurisdictional and First Amendment grounds, this is still an important win,” said Paul Levy in a statement. "If Hadeed turns to California courts to learn the identities of its critics, those courts will require it to show evidence to meet the well-accepted First Amendment test for identifying anonymous speakers. And so far, Hadeed has not come close to providing such evidence."

Now, the question remains as to whether Hadeed will continue his unmasking efforts in a less-friendly venue. Considering he doesn't dispute the content of the reviews -- just the legitimacy of the reviewers -- this would seem to be an obstacle not worth surmounting.

Paul Levy, however, says Hadeed may have little choice but to pursue this in an unfavorable venue because previous statements leave his company little choice but to continue on its quest to be proven "right."

[I]n light of Hadeed’s previous public statements, it is hard to understand how it could not go forward in California. It took advantage of the pendency of this litigation to mount a public relations offensive portraying itself as an innocent victim of Yelp reviews, making a variety of strong claims about how seriously its business was harmed by negative reviews and speculating about whether Yelp was an “instrument for defamation.” It managed to manipulate a number of reporters at respectable publications into repeating its accusations as truths. And although some of its legal papers were circumspect in admitting that, based on its reviews of its customer database it could do no more than “wonder” whether the Does whom it sued in this case were really customers, in other places it made the affirmative assertion that there was a sufficient basis in its customer database to assert that the reviewers were, in fact, not customers.

Filed Under: anonymity, dendrite rules, hadeed, jurisdiction, reviews, virginia
Companies: hadeed carpet cleaning, yelp

Is Merely Explaining The Streisand Effect To Someone A 'Threat'?

from the paranoid-much? dept

Ken White, over at Popehat, has a story on the ridiculous situation concerning how lawyer/psychotherapist Jose Arcaya is going after lawyer Scott Greenfield (whose work we often mention around these parts). The history of how it got this far is a bit convoluted, and you can read the full Popehat post for the details, but here's my shortened version: An apparently unsatisfied former client of Arcaya left a negative review of Arcaya on Yelp. Arcaya sued for defamation, arguing that being called "absolute scum" is not merely an opinion because of the use of the word "total" (which as far as I can tell is not actually used in the review -- though perhaps he means "absolute" or perhaps something was edited. Also, for the record, the review appears to call him "absolute scum" not "absolute scum bag" though I doubt the difference matters):

Regarding the matter of whether "absolute scum bag" should be deemed defamation per se rests with the present court. Mr. Boka tTots out a series of cases indicating the word "scum" and "scum bag" do not fall in that category. However, by adding the word "total" he impugns everything about me, including character and capacity to carry-out legal work. It coincides well with the Dillon standard of defamatjon per se: a maliciously intended attack on my professional capabilities, an all encompassing put-down (i.e., "absolute scum", not just "scum bag" Or "scum")...

Anyway, the former Arcaya client reached out to White, who in turn reached out to Greenfield. Greenfield then reached out to Arcaya, trying to explain to him, nicely, that suing over someone calling you "absolute scum" on Yelp is probably not a productive venture and might -- just possibly -- backfire, thanks to a little thing called the Streisand Effect. About five or six years ago, a lawyer had told me that the Streisand Effect was losing its power because lawyers now recognized it. And yet, we keep discovering new lawyers who have no idea about it at all.

Now, some might take this as a friendly bit of advice about how a course of action could potentially backfire once it is revealed to the public. But Arcaya, apparently, took Greenfield's explanation of how the Streisand Effect works... and claimed that it was Greenfield threatening him with the Streisand Effect. In response, Arcaya subpoenaed Greenfield and defended this move by apparently arguing that Greenfield was somehow threatening him in describing how the Streisand Effect tends to work, and claiming that Greenfield was somehow associated with "an illegal gang."

Again, while I have no evidence that he was part of that illegal gang, as a lawyer Greenfield still should not have served as a conduit for that criminal enterprise. Rather than calling me Greenfield should have contact [sic] the Attorney General's office or the police to denounce what he had learned. Because of his failure to uphold the principle of propriety as a server of the law, I lodged a complaint the [sic] First Department's Discipline Committee.

Oh, right. Beyond just issuing the subpoena, Arcaya filed a wonderfully handwritten bar complaint against Greenfield -- for daring to explain a basic online phenomenon. Wow. What's amazing is how frequently we've seen this kind of reaction. From Charles Carreon to Prenda Law, those who find themselves faced with the public reacting negatively to their own lawyerly overreactions assume that "the public" speaking out is some sort of "illegal gang" out to get them. They don't realize that it's not about them (at all), but rather the public exercising its free speech rights to criticize what the public believes is an abuse of power.

Either way, the idea that merely explaining the Streisand Effect to a lawyer who was about to step right into it is some sort of threat concerning a "criminal gang" that somehow violates proper lawyerly activities is so ridiculously laughable, that I'd argue it's even more ridiculous than flipping out and suing over someone calling you "absolute scum."

Filed Under: defamation, free speech, jose arcaya, ken white, scott greenfield, slapp, streisand effect
Companies: yelp

Even If Google Could Improve Its Recommendations, Is It The Government's Job To Tell It To Do So?

from the seems-troubling dept

There were reports a few weeks ago that the European Commission has reopened its antitrust investigation into Google. The main issue is how Google promotes certain (usually internal) results in so-called "answer boxes" in a way that may hurt other sites. We've been skeptical of the idea of European bureaucrats deciding what Google's search results should look like, but earlier this year, it appeared that a settlement had been reached in which Google would point to competitors' results in some cases.

Against this backdrop, a few organizations, led by Yelp and TripAdvisor have created a somewhat fascinating site and tool called Focus On The User -- a play on Google's own core philosophy of "focus on the user and all else will follow." The site makes a very compelling argument that when Google is returning opinions (i.e., ratings) rather than factual answers, that it could do a much better job than just pointing to results from Google+. That is, if you do a search on "best restaurants in San Francisco" Google will show you results as rated by Google+ user reviews.

The Focus on the User site shows that rather than just relying on Google's own data, users would benefit greatly if Google used its own search algorithm to pull in results from reviews elsewhere. In short, where you might see a box up top with seven to ten reviews (all linking to Google pages), Yelp and TripAdvisor are arguing that if you just used Google's "organic" search algorithm to find the most relevant review pages, consumers get a much better experience. And they have a fair amount of data to back that up, showing a greater number of clicks in such a box (which you can test yourself via the site).

As noted above, the results are compelling. Using Google's own algorithm to rank all possible reviews seems like a pretty smart way of doing things, and likely to give better results than just using Google's (much more limited) database of reviews. But here's the thing: while I completely agree that this is how Google should offer up reviews in response to "opinion" type questions, I still am troubled by the idea that this should be dictated by government bureaucrats. Frankly, I'm kind of surprised this isn't the way Google operates, and it's a bit disappointing that the company doesn't just jump on this as a solution voluntarily, rather than dragging it out and having the bureaucrats force it upon them.

So while the site is fascinating, and the case is compelling, it still has this problem of getting into a very touchy territory where we're expecting government's to design the results of search engines. It seems like Yelp, TripAdvisor and others can make the case to Google and the public directly that this is a better way to do things, rather than having the government try to order Google to use it.

Filed Under: antitrust, eu, government, recommendations, regulators, search
Companies: google, tripadvisor, yelp