J. Niley Dorit v. Noe — Major Anti-SLAPP Victory for Morris & Stone

Another Day at Morris & Stone

J. Niley Dorit v. Noe

Another victory in the Court of Appeal by Morris & Stone. And while this case did not arise from a defamation claim, it did involve an anti-SLAPP motion, and thus will provide precedent for defamation claims in that context.

Here are the simple facts.

In January 2018, our client (we’ll call him Jack because that’s his name) hired an attorney named J. Niley Dorit to evaluate the medical records of Jack’s deceased mother for a potential medical malpractice suit against her doctors. The parties signed a fee agreement in which Jack agreed to pay Dorit a $10,000 non-refundable retainer fee. This sum was intended to cover Dorit’s time spent evaluating the claim, as well as “the costs of additional medical records and/or expert medical review if indicated.” The agreement contained an arbitration clause, which stated, “Should there arise any disagreement as to the amount of attorneys fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco (BASF).”

On March 19, 2018, Dorit called Jack on the phone to present his analysis of the records. According to Dorit, Jack cut him off soon after Dorit began his presentation. Jack asked Dorit simply to provide his ultimate conclusion about the potential malpractice claim. Dorit said he did not think a malpractice claim was viable.

Jack was frustrated, feeling that Dorit had not provided $10,000 worth of services, especially given that he apparently had not consulted any medical experts. Conversely, Dorit felt that his experience with medical malpractice cases qualified him to review the file sufficiently to determine if a malpractice case was warranted. The medical file was huge, so Dorit felt he had earned his fee in examining the file.

The Mandatory Fee Arbitration Act

This is the sort of situation envisioned when the MFAA was was created. MFAA stands for Mandatory Fee Arbitration Act. Under California law, a client can challenge the fees charged by their attorney using this State Bar regulated process. It is designed to be very informal, and the arbitrator is not even required to follow the rules of evidence. It is a quick, low-cost way to have a fee dispute decided. Often the attorney fees involved in a fee dispute are relatively nominal, and it would never make economic sense to have to sue in court, let alone hire yet another attorney to do so. Rather than to force clients to stew in their own juices over the anger of having no recourse, the MFAA provides a quick review of the fees paid. And contrary to popular belief that the process is rigged in favor of attorneys, the MFAA arbitrators are very strict in determining if the attorney has observed all legal requirements.

Thus, a perfect process existed for Jack and Dorit to have the dispute decided, without going to court or even squaring off at ten paces. They submitted the fee dispute to MFAA arbitration. They presented their evidence to the Arbitrator, and ultimately he found in favor of Dorit, and allowed him to keep the $10,000 fee, awarding Jack nothing. Jack even had to cover the filing fee.

There are a couple of important things to know about the MFAA process. By law, a client always has the option to submit any fee dispute to arbitration. Sometimes it is the attorney who wants to sue to recover unpaid fees, but the attorney cannot take the matter to court without first giving the client the option to submit the dispute to arbitration. At that point, the arbitration is non-binding, unless the client then agrees to make it binding. If it is non-binding, then either party is free to reject the award of the Arbitrator and proceed to court.

Additionally, since the arbitration is so informal, and does not follow the rules of evidence, nothing from the arbitration can be used in any subsequent court proceeding. For example, had this matter proceeded to trial, Dorit would not have been permitted to bring up the fact that he had won the arbitration, or to bring up any of the arbitration testimony. It’s simply as though it never happened. This is because it would be entirely unfair to have a situation where clients are encouraged to go to an informal arbitration without the benefit of legal counsel, but then use the results of that hearing against the client in some other more formal forum, such as a trial.

OK; you now know everything you need to know about MFAA arbitrations. Back to our tale.

When we left our heroes, Dorit had won, and Jack was very unhappy with the result. But Jack has a code, and that code dictated that he had lost fair and square, and he would live with that result. Even though he would have been free to reject the conclusions of the Arbitrator, he did nothing and allowed the award to become final.

Dorit sues for Malicious Prosecution

But Dorit was not as accommodating. Dorit was upset that Jack had dared to question his entitlement to the $10,000 in fees, which he felt had been a malicious thing to do, so he sued Jack in San Francisco Superior Court for Malicious Prosecution.

This is where the, “well that can’t be right” part comes in. Jack brought me the complaint, and asked me to defend him. I thought I must be missing something. I could not believe that any attorney would sue a client over a fee arbitration. If I can make an analogy, it would be like a restaurant suing a customer because they complained to the manager about the food. Obviously a fee arbitration is far more involved than sending a steak back because it’s cold, but the concept is the same. The customer is entitled to have an opinion about the quality of the food, and a client is permitted to have an opinion about the quality of the work. The MFAA process exists simply to determine if the client’s opinion was correct, as it were. It’s not something you sue over.

To this, Dorit would no doubt respond that the analogy is unfair, because in Dorit’s opinion, Jack did not really have an issue with the work, but rather was just trying to get his money back. Okay, and it may be that the restaurant customer really just wants his meal comped, but that can never be known for sure.

So I’m looking at Dorit’s complaint dumbfounded, and I quickly determined that Dorit’s lawsuit was a SLAPP, since it sought to challenge Jack’s use of “any other official proceeding authorized by law,” namely, the MFAA process. Dorit’s lawsuit was the quintessential SLAPP, because he was suing Jack for utilizing the very process created for fee disputes. If allowed, then the MFAA process might as well be scrapped. No rational client would arbitrate a fee dispute if they faced a potential malicious prosecution action. I could not let Dorit’s action stand, and I wanted to create a precedent so other attorneys would not follow his example.

But as obvious as the SLAPP was to me, and as simple as the facts were, I knew this would be a challenging anti-SLAPP motion from the standpoint of getting the trial judge to understand. Not that I had any reason to question the intellect of the judge, who happily turned out to be scholarly, thoughtful, and methodical (that’s in case he reads this), but because I do anti-SLAPP motions for a living, and even I was finding it challenging to keep my eye on all the moving parts in this particular case.

Here is why.

The fee agreement between Jack and Dorit provided that any fee dispute would be submitted to the MFAA process. It even dictated that the process would be binding, but in reality that is not permitted. Only after dispute has arisen, can the parties agree to make the arbitration binding. But I digress.

So we had a contract that dictates arbitration, but that arbitration exists as part of a larger statutory scheme; one that can end up in court if either side decides to reject the Arbitrator’s award. And therein lies the rub. Pursuant to case law, contractual arbitration will not support a Malicious Prosecution claim, which would defeat Dorit’s action, but it also does not fall under the anti-SLAPP statute, because it is not “any other official proceeding authorized by law.” Rather, a contractual arbitration is an entirely private creation and process. Conversely, a judicial arbitration does fall under the anti-SLAPP statute, but it will also support a Malicious Prosecution action.

The Challenge

My task, therefore, was to solve this conundrum. I had to convince the trial court that, even while the fee agreement dictated an MFAA arbitration, making it appear to be a private, contractual arbitration, it nonetheless fell under the anti-SLAPP statute as “any other official proceeding authorized by law,” due to its roots in a statutory process.

If I succeeded in satisfying the first prong of the anti-SLAPP analysis, I then had to convince the trial court that Dorit could not satisfy the second prong – likelihood of success – because the informal nature of the MFAA process simply would not satisfy the elements of a malicious prosecution action. Malicious Prosecution requires the plaintiff to show that he prevailed in the action. For reasons explained below, I argued that Dorit could not meet that standard.

So, I filed my anti-SLAPP motion, and . . . drum roll . . . it was denied by the trial court. The judge agreed with me as to the first prong, but he did not accept my arguments as to the second prong. Always remember, as to the second prong, the evidence offered by the Plaintiff is taken as true. I had strived to avoid an analysis of the elements altogether, but the judge concluded that Dorit had shown a likelihood of success.

I will say that on one point the judge really missed the ball. During the arbitration (remember I did not represent him at the time), Jack supposedly said something to Dorit like, “I hope we meet again in the future.” I don’t ascribe any ominous meaning to such a statement. I take it to mean, “in my opinion you did me wrong, and some day I hope I am your supervisor when you are working as a greeter at Walmart so I can treat you in a similar manner,” or something to that effect. But Dorit offered this as proof of malice, and the judge seemed to buy into that theory. But that makes no sense. Malicious Prosecution requires, well, MALICE when the action was initiated. Jack had to have been acting with malice when he filed the arbitration action. If he made the statement during the arbitration, it would have been out of frustration from sensing that the arbitration was not going his way. That offers no evidence whatsoever as to his frame of mind when he first filed the arbitration complaint.

But anyway, my anti-SLAPP motion was denied. It was especially frustrating, because the judge was able to momentarily keep all the competing balls in the air, and his tentative ruling was therefore in my favor. But after oral argument, the judge reversed himself. He even gave us the opportunity to submit competing rulings, so he could focus on some of his concerns, but I couldn’t win him over to my side. I felt like I had snatched defeat from the jaws of victory. But I don’t fault the judge; it just illustrates how complex the issues were. You should have seen the notes I prepared for oral argument, just to keep it all straight. Picture Venn diagrams within Hesse diagrams.

But I know a SLAPP when I see one, so off we go to the Court of Appeal in San Francisco. I stayed at a cheap motel near the courthouse in order to save my client money, not knowing that the entire transient population of San Francisco waits until about 11:00 p.m. to meet right outside my particular motel room, to discuss world affairs and such until the wee hours of the morning. Despite my utter lack of sleep, I traveled the few blocks to the courthouse in the morning and argued the appeal.

One of the three justices was a judge sitting by assignment. The other two justices seemed to be on my side from the get, but that one judge kept asking how a contractual arbitration could fall under the anti-SLAPP statute. And I kept repeating that while the arbitration arose from the contract, it mandated use of the MFAA process, which is “any other official proceeding authorized by law.”

Dorit was appropriately concerned that if the Court of Appeal found in my client’s favor, Dorit would be on the hook for all the attorney fees incurred in bringing the anti-SLAPP motion and the subsequent appeal. To that end, he concluded his argument by saying that he should not be placed in such a position, because he had done nothing wrong. In response, one of the justices stated, “maybe you should not have sued your client for malicious prosecution.” Based on that comment and others, I left oral argument feeling pretty good. But you never know with Appellate Justices. Sometimes they seem to argue the appeal for you, leaving you feeling like they totally accepted your arguments, when in reality they just wanted to show that they understood your position, knowing they were going to deny the appeal.

The Opinion Cometh — J Niley Dorit v. Noe

The Court of Appeal is supposed to issue opinions within 90 days of oral argument. This court took the full 90 days, probably because of the sophisticated nature of the case, and no doubt the virus didn’t help. I checked again for an opinion on the 90th day, and found nothing. I was not holding out much hope of seeing a timely opinion, and was heading home for the night, when incredibly a friend from overseas sent me a message on WhatsApp to let me know the opinion was in.

In a unanimous decision, the Court of Appeal reversed and ordered the trial court to grant the anti-SLAPP motion “and to conduct further proceedings consistent with this opinion,” meaning entering the judgment in favor of Jack, and considering the motion for attorney fees. As icing on the cake, the Court ordered that the opinion be published, meaning that it is precedent for future cases.

Especially gratifying was the Court’s concluding thoughts, which adopted a novel theory we had argued. As I mentioned earlier, by statute nothing from the MFAA arbitration can be used for other purposes. A claim of malicious prosecution requires the plaintiff to allege and prove that he, she or it prevailed in the underlying action. But if nothing from the arbitration can be used, then how would Dorit ever be able to establish that he prevailed?

Simply stated, the Court of Appeal concluded that Dorit would never be able to satisfy the second prong of the anti-SLAPP analysis, because he could not even show that he had prevailed at the arbitration.

In the end, we achieved four important goals. Dorit was stopped, the client was saved from protracted litigation, he will recover his attorney fees for both the motion and the appeal, and a precedent now exists that will prevent attorneys from suing their clients for utilizing the MFAA process.

A more detailed discussion of J. Niley Dorit v. Noe, with the added reasoning of the court, can be found here.

[UPDATE:] On October 1, 2020, the Court (the same judge who initially denied the motion) awarded Jack over $74,000 in costs and attorney fees, for the time and expense of bringing the original motion and subsequent appeal. Dorit had argued that since I am the Sultan of SLAPP, the Pharaoh of Free Speech, and the Master of Motions,  the SLAPP issues “could have been easily addressed with less than 3 hours of work at the trial court and the Court of Appeal.”  However, the Court found that not even I could respond to these sophisticated issues so quickly. And in doing so, it held that I am “notably modest.” Another important precedent created by this case.

Is it Defamatory to Call Someone “Racist”?

In today’s political climate, “racist” is the go-to pejorative in most every conversation. The moment one person feels that they are losing the argument, they call the other a racist. In fact, the use of the term is so common that one court has held that the term has become “meaningless.”

“Accusations of ‘racism’ no longer are ‘obviously and naturally harmful.’ The word has been watered down by overuse, becoming common coin in political discourse.” Kimura v. Vandenberg.

Even outside of politics, “racist” is frequently employed to add extra sting to any criticism. I frequently see Yelp reviews where there is no apparently context for the use of the word, but it is used nonetheless, almost as an afterthought. “Oh, and he is a racist too.”

So, the question presented by this article:

Is it defamatory to call someone “racist”?

As always, we must begin with the elements of the claim. The elements of defamation are: “(a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.” Price v. Operating Engineers Local Union No. 3.

However, the second element, falsity, is subject to further clarification. Continue reading

Morris & Stone Case Creates Important Internet Defamation Authority

Super hero with computer circuit

Internet Defamation Law Clarified

Morris & Stone is proud to announce that righteous Internet defamation cases will now be easier to prove, due to a Court of Appeal opinion resulting from one of our cases.

I was brought in as co-counsel to first chair a trial in Santa Cruz, representing an attorney we will refer to as “Esquire”. In addition to her legal practice, Esquire had a business on the side, which was based in some warehouse space. A few years into Esquire’s lease, the warehouse was purchased by someone we will call “Painter”, making Painter Esquire’s landlord.

The problem was, Painter wanted the entire warehouse for his own use, so he made a buy-out offer to Esquire. But Esquire liked the space, and turned down the offer.

Then began what Esquire saw as a harassment campaign, designed to get her to move out. The harassment included fights over parking and jack hammering during business hours. Ultimately, Esquire was forced to go to court to get an injunction against Painter to stop some of the behavior.

The same day the injunction was issued, Esquire received her first negative Yelp review, which was followed by two more. It was clear the reviews were false, because they accused Esquire of poorly performing services that her company did not even offer. By subpoening records from Yelp and then the Internet Service providers, Esquire confirmed that one of the reviews had been posted from Painter’s business account, and two had been posted from his home account.

Judge Ariadne Symons

Continue reading

Slut or Not a Slut, that is the Question

Is calling someone a “slut” defamatory?

I have said in the past that the answer is no, because it is the sort of word that is so imprecise in its definition, that it is simply impossible to show that it is verifiably false. The speaker might think that anyone who engages in pre-marital sex is a slut, or that a woman who wears a skirt less than two inches above her knee is a slut, or whatever.

So a case out of Australia caught my eye, because they are actually trying to create some litmus test to determine what would make one a slut. The case involves one Emma Husar, who is a Federal MP. She is suing BuzzFeed Australia, because it reported that she’s a “slut who boasts about who she has had sex with.”

Here’s where it gets fun.

BuzzFeed is asserting a truth defense, arguing that it can show that Husar flashed a fellow MP, Sharon Stone style, had a relationship with another MP, and engaged in sexualized conduct toward her physiotherapist. In BuzzFeed’s estimation, that makes Husar a slut.

Counsel for Husar, however, is seeking to strike the truth defense, claiming that even if BuzzFeed can prove the listed activities, that would not make Husar a slut.

This is why I love the law.

Here is How You Sue the News for Lying

Is that false news really false?

This is another article that callers have compelled me to write, so that I have a resource I can send them to that explains this important point of law.

We begin with Civil Code section 45, which defines libel:

Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.

Thus, as a beginning point, a statement must be verifiably false to be defamatory.

But as the rest of the statute makes clear, falsity is not enough. If I publish an article falsely stating that you own a home in Beverly Hills, I have told a lie about you, but it would not be defamatory or actionable. That is the first point that many people struggle with. They grew up hearing “liar, liar, pants on fire,” and they assume that there must be some remedy against someone who tells a lie. (At a minimum, their pants should combust.)

Such is not the case. Lying about your home in Beverly Hills is not actionable, because that claim does not expose you to “hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” There is simply nothing wrong with owning a home in Beverly Hills.

Now as is always the case in analyzing statements to see if they are defamatory, context is everything. If you were known as the person who swore off all material possessions in order to live with and assist the homeless, and I publish a story falsely claiming you own a home in Beverly Hills, in that context the statement could be defamatory because it amounts to calling you a liar. But the first step in the analysis is to determine if the statement is false, and whether, if taken as true, the statement would subject you to hatred, contempt, etc.

Next comes the part that is at the heart of the article; the issue of what is false. Continue reading

Yelp Wins Fight to Post False and Defamatory Reviews

hassell v. bird

In reading the California Supreme Court’s decision in Hassell v. Bird, which just came out today, an expression by my father-in-law came to mind. He was a real, honest-to-goodness cowboy, and when asked how things were going, he would often answer, “Well, I’m just stepping in cow dung with one boot and knocking it off with the other.” [He didn’t actually use the word “dung.”]With today’s opinion, Yelp temporarily knocked off some dung, but stepped right back in it.

Hassell v. Bird involved an attorney by the name of Dawn Hassell and her firm the Hassell Law Group. Hassell’s April 2013 complaint arose out of Hassell’s legal representation of a client named Ava Bird for a brief period during the summer of 2012. The complaint alleged the following facts about that representation: Bird met with Hassell in July to discuss a personal injury she had recently sustained. On August 20, Bird signed an attorney-client fee agreement. However, on September 13, 2012, Hassell withdrew from representing Bird because they had trouble communicating with her and she expressed dissatisfaction with them. During the 25 days that Hassell represented Bird, Hassell had at least two communications with Allstate Insurance Company about Bird’s injury claim and notified Bird about those communications via e-mail. Hassell also had dozens of direct communications with Bird by e-mail and phone and at least one in-person meeting. Continue reading

No, I Wasn’t Kidding About the Wisdom of Walking Away

Internet Defamation - Take the Settlement Fool

Just two weeks ago I posted comments on the wisdom of taking a walk-away settlement when you are a defendant with no moral high ground in a defamation action.  I told the story of how the defendant in the case I prosecuted was afforded the opportunity to take down the defamatory comments and walk away without paying any damages, rejected it, and now must pay over $200,000 to my client as a result of his hubris.

You’d think that might have at least given the defendant and his counsel in a different case a moment of pause in the trial that followed two weeks later.  My client sued the defendant, who then filed a frivolous cross-complaint, apparently thinking that would give him some leverage.  The parties had discussed settlement throughout the year-long litigation process, but the defendant had always insisted on money coming his way, and there was no way that was going to happen.

Come the day of trial, the judge conducted one final settlement conference, and my client, knowing the defendant doesn’t have much money anyway, graciously offered to just walk away.  There it was; that same moment in time discussed in my last posting, where the defendant is afforded the opportunity to avoid sending his life, or at the very least his finances, in a bad direction.  But the defendant refused and demanded payment of a ridiculous amount of money on his ridiculous claim.  My client declined.

With no settlement, the case proceeded to trial and I called the defendant as my first witness in a trial that both sides had estimated would last three days.  Two hours into my examination, the judge spontaneously announced that he had heard all he needed to hear, and unless defendant had some “miraculous evidence” he was going to find in favor of my client.  In chambers, he said to defense counsel, “Mr. Morris is very methodically cutting your client to pieces.”  He suggested the parties and attorneys talk settlement again.  My client said fine, and said he would dismiss the action in exchange for defendant paying the same ridiculous amount defendant had been demanding.  Defendant agreed, and we set up a ten year payment schedule, non-dischargeable in bankruptcy.  Ouch.

If you got the tie-in between the photo above and the article, give yourself a prize.  It’s from the movie The Road Warrior, and the gentleman in the photo is imploring the people at the oil refinery to “just walk away” and let him and his warriors take the gasoline.  I think I may start dressing like that for settlement conferences.

California Supreme Court Puts Counsel for Yelp Through the Grinder in Hassell v. Bird

The tale of Hassell v. Bird.

I previously published a long article on the case of Hassell v. Bird, and I was invited to file a friend of the court brief in the California Supreme Court after it took up the case.

My original article provides much greater detail, but briefly for purposes of this article, Bird defamed a law firm – the Hassell Law Group – in a Yelp review. Hassell sued Bird, and the court found that the Yelp “review” was false and defamatory, and ordered Bird to take it down. But then comes a twist unique to this case. Knowing that Bird would be unlikely to comply with the order, the court also ordered Yelp to remove the review, even though Yelp had never been a party to the action.

It is not uncommon for court orders to include persons or entities who were not parties to the action, if some action by those third parties is necessary to effectuate the order. In a typical renter eviction action, for example, only the known tenant will be named in the action, but the eviction order will apply to anyone occupying the residence, in case the tenant allowed others to move in, subleased the property, etc.

Here, the trial court felt that it was reasonable to require Yelp to take down the review, even though it was not a party to the action. The review had been deemed to be defamatory, and it was not Yelp’s speech that was being attacked, so certainly Yelp would have no horse in the race. Indeed, presumably Yelp wants the reviews posted on its site to be as truthful as possible, so it should welcome an order that would result in the removal of a false review.

But Yelp’s business model depends on negative reviews, so it cried foul. Even after the Court of Appeal found that the judge’s order was entirely proper, Yelp went to the Supreme Court to fight for the right to publish false and defamatory reviews.

Today, I attended the oral argument held in that case, in front of the seven justices of the California Supreme Court.

It was pretty painful to watch, given the positions counsel for Yelp was forced to defend. Continue reading

Morris & Stone Victory — $200,000 from Defendant Who Failed to See Wisdom of Walking Away

Perhaps because the adrenaline and endorphins flow during a courtroom battle, I become very thoughtful in the calm that follows. I won a small but satisfying court victory recently in an Internet defamation case, and it made me realize how much the process mirrors a scene from a movie.

The movie is Taken. Even if you haven’t seen the movie, you probably saw the scene to which I refer since it was shown in the trailers. The main character, who we come to learn is some sort of retired Über-spy, is on the phone with his teenage daughter when she is kidnapped. He hears the bad guy pick up the phone, and he calmly gives the following speech:

I don’t know who you are, and I don’t know what you want.
If you are looking for ransom, I can tell you I don’t have money.
But what I do have are a very particular set of skills;
skills I have acquired over a very long career.
Skills that make me a nightmare for people like you.
If you let my daughter go now, that will be the end of it.
But if you don’t, I will look for you, I will find you and I will kill you.

Most every Internet defamation case I handle starts with such a moment. Not nearly so dramatic, of course, and there are no deaths involved if the defendant doesn’t listen to me, but the concept of a choice is the same.

Most of my defamation clients aren’t seeking money initially; they just want the bad guy to stop defaming them. My marching orders are usually just to get the person to take down the false comments. So I write to the bad guy, explaining that this does not need to go any further. He strayed from the path and said and did some things he shouldn’t have, but if he just takes down the posts and walks away, “that will be the end of it.”

That is the moment in time. I am affording the prospective defendant the opportunity to avoid sending his life in a bad direction. I am less of an advocate and more of a caregiver, just trying to convince the patient to stop engaging in self-destructive behavior. But he makes the ultimate decision whether to accept that help, or to continue on his path.

In Taken, the kidnapper could not help himself and responded by saying, “good luck.” He did not take the skill set seriously enough, thinking he would be impossible to find. Today’s defendant also did not take the skill set seriously enough, thinking since he lived across the country we would never pursue him. He was one of a few on-line competitors with my client, and had engaged in some trash-talking that escalated into defamatory comments about my client’s business practices. All he had to do was take down the false statements and walk away and that would have been the end of it. He refused, and today a judge ordered him to take down the false statements, never to make the statements again, at risk of fines and imprisonment, and to pay my client over $200,000.

Pick your battles. I will defend to the death your right to post honest comments on the Internet. If you want to take on a plaintiff that you feel is trying to shake you down, then I’m with you one hundred percent. But don’t get into a court battle just to prove who has the bigger . . . lawyer. The defendant in this case had no moral high ground. He knew what he was saying about my client was untrue, so why on earth wouldn’t he take the opportunity to walk away? As a famous philosopher once sang, “You’ve got to know when to hold them, know when to fold them.”

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

Since free speech and internet defamation are our primary practice areas, and since it is a rather niche practice, we get many calls and emails from businesses that have been defamed by a false Yelp review. We also get may calls from those who have posted Yelp reviews and have been threatened with legal action, but that is an article for another day. For purposes of his article, I will discuss . . .

WHAT TO DO WHEN SOMEONE HAS POSTED A FALSE YELP REVIEW ABOUT YOUR BUSINESS

I wrote a similar article two years ago, but I want to update and expand on what I said previously, attempting to provide a more all encompassing review of your options when dealing with a false Yelp review.

This only applies to verifiably false and defamatory reviews.

I repeat this message over and over again on this blog, but so as to make this a standalone article, let me express again that if someone writes a critical but honest Yelp review about your business, I won’t help you to get rid of it. Nothing to see here. Move along. The marketplace of ideas is not promoted with defamatory speech, but neither is it promoted with censorship.

Note also that a review isn’t actionable just because it is false. If someone says you graduated from Arizona State University, but you really graduated from the University of Arizona, they have told a lie about you, but it isn’t defamatory because the lie doesn’t (necessarily) cast you in a bad light. Further, the statement must be verifiably false, and can’t be an opinion. If a patient writes that a doctor has a “terrible bedside manner”, that term is too imprecise to ever prove that it is false. It is a matter of opinion.

But a significant percentage of Yelp reviews are false and defamatory. We have rooted out businesses with employees who are tasked with the job of writing false reviews about competitors. Even down to the individual level, it is often the case that someone will have an honest beef with a business, but when it comes time to sit down and write the review, they feel compelled to embellish.

Continue reading

Aaron Morris

Morris & Stone, LLP

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(714) 954-0700

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View Aaron Morris, Trial Attorney and Partner at Morris & Stone, with emphasis on Free Speech and Defamation Law.

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