Aaron Morris

What to Consider Before You Post a Review to a Consumer Rating Website

(Credit: Getty Images) When Travis Hartinger found his dream home in Chicago, only one thing was missing. “We needed to update the kitchen,” said Hartinger, who works in apartment sales and lives with his wife. So he saved up for the $45,000 fix, took out a loan and called in a contractor. Hartinger told ABC News he liked almost all of the work that was done — except the time frame. “I was really happy with the finished product,” he said. “I just thought they took too long to complete it.” Related: Woman Sued After Giving Bad Online Reviews Related:…

Source: abcnews.go.com

Typical article about how posting a review can get you into legal trouble, but the interesting fact is the contract language. I am seeing more and more contracts that provide a consequence if the customer posts a negative review.

In some instances, I’ve seen intake forms at doctors’ offices that purportedly prohibit negative reviews. I don’t see how that would ever be enforceable. But as was the case here, some contracts take something away if a negative review is posted. Here, the contractor offered a ten year warranty on the construction, but the contract provided the warranty would be forfeited if a negative review is posted. I don’t see any reason that parties would not be free to enter into such an agreement.

Before you cry outrage that a contract would seek to silence someone’s right to criticize, you may not be aware that “extortion by defamation” is very prevalent in this country. 

“Oh, I see from your invoice that I still owe another $5,000 for the job. If you don’t agree to waive that, I’m going to post bad reviews about you on every site I can find.”

Looking at it another way, it levels the playing field a little. Here the consumer posted a review that could have a significant financial impact on the contractor. If the consumer feels strongly enough about the job that they feel the world needs to know, then he can stand by that conviction and post to his heart’s content, knowing the the price of freedom is the ten-year warranty.

Read more about Internet Defamation and remedies here.

Court of Appeal Upholds Denial of Anti-SLAPP Motion and Allows Suit Over Drug Monograph to Go Forward

A woman who claims she suffered total blindness and other deleterious effects as a result of taking an anti-epilepsy drug can sue the distributor of a monograph she claims understated the drug’s risks, the First District Court of Appeal has ruled.

Div. Three Thursday affirmed an Alameda Superior Court judge’s denial of an anti-SLAPP motion brought by PDX, Inc.

Source: www.metnews.com

The distributor had contended that distribution of the monograph (a shortened version of the drug warnings) was a protected activity, but the trial court held, and the appellate court affirmed, that the plaintiff had met the second prong of the anti-SLAPP analysis, showing that she was likely to prevail on the action.

I question the legitimacy of these sorts of actions, but that is for the jury to decide. Plaintiff alleges that the following warning, which was contained in the complete drug warning documentation, was omitted from the monogram.

“SERIOUS AND SOMETIMES FATAL RASHES HAVE OCCURRED RARELY WITH THE USE OF THIS MEDICINE. . . .  Contact your doctor immediately if you develop rash symptoms, including red, swollen, blistered or peeling skin.  Treatment with this medication should be stopped unless it is clearly determined that the medicine did not cause the rash.  Even if the medicine is stopped, a rash caused by this medicine may still become life-threatening or cause serious side effects (such as permanent scarring).”

Hardin alleges that she read the monogram, and had this warning been included, she never would have taken the drug.

Federal court applies Texas anti-SLAPP statute for the first time, confirming it creates a substantive First Amendment right | Lexology

In a major boost to the Texas anti-strategic lawsuit against public participation (anti-SLAPP) statute, a federal court judge granted a South Texas television’s anti-SLAPP motion to dismiss, applying the state statute in federal court for the first time since its adoption in 2011.

U.S. District Court Judge Nelva Gonzales Ramos of the Southern District of Texas dismissed the challenge to the anti-SLAPP statute and the argument that it was a procedural rule that conflicted with federal rules. Instead, Judge Ramos held the anti-SLAPP statute creates a significant substantive First Amendment right and should be applied in federal court. It is designed to prevent malicious or frivolous lawsuits that chill free speech.

Source: www.lexology.com

The application of state SLAPP laws in Federal court still tends to be a bit kludgy, but here is another in a line of decisions continuing to apply the law.

Court Says Tweeting Someone Is ‘F**king Crazy’ Is Not Libelous

There have been a number of libel cases popping up over the past few years where random insults on Twitter are turned into full blown court cases. Tragically, these cases have picked up the “twibel” name — a neologism that seems silly and pointless. . . . In a recent ruling (where both parties represented themselves!), a court recognized that saying on Twitter that someone is “fucking crazy” isn’t libelous, especially as part of a “heated” online discussion.

Source: www.techdirt.com

I have been making this point for years, and now a court is backing me up. I’ve received a number of calls from people wanting to sue for defamation because someone called them “a psycho” or “bipolar” or “schizophrenic”. Are these statements defamatory?

When determining if a statement (here, posted on Twitter) is defamatory, you must consider the context and the meaning attributed to that word by the speaker. Yes, so some extent, the speaker gets to define the word he uses, not the plaintiff who want to sue him for defamation.

So, in this case, there was a heated debate on Twitter about a horse or something, and at some point the defendant tweeted “Mara Feld . . . is f-ing crazy.” (The actual profanity was used.)

Let’s run it through the analysis. In that context, was the defendant asserting the verifiable fact that Feld suffers from a mental disorder? Of course not. It was offered as the usual “you’re out of your mind” sort of statement.

And even if we set the context aside and assume that the defendant really DID mean to assert that the plaintiff is suffering from a mental disease, how would that be defined? He did not say that plaintiff is suffering from bi-polar disorder or some other condition that could be verified, he simply said plaintiff is crazy. I, for example, think anyone who drinks Budweiser is crazy. With so many good beers available, I can’t fathom why anyone would waste liver tissue on that swill. My definition of “crazy” cannot be proved or disproved, so it could never support a cause of action for defamation. Here, only defendant knows how he defines “crazy”.

“Crazy” is a common one, but what if the person had been a little more specific, and had said that “Feld is bipolar? That is a little different, but still not defamatory. Repeat after me: “Context is everything.” Was the author of the remark really intending to say to the world that Feld is clinically bipolar, or was she just using the term in a hyperbolic sense, to report that Feld has mood swings? But wait, there’s more. Even if the author had dropped a footnote and added, “I don’t mean that in a figurative sense; Feld is really bipolar,” it is still not clear defamation. It’s certainly getting close, but since context is everything, before a court would find that statement and footnote to be defamatory, Feld would likely need to show that in the context the people reading that comment had reason to believe that (1) the author is qualified to make that diagnosis, and/or (2) that the author possesses some insider information about Feld’s actual diagnosis from a mental health professional.

I also get calls from women wanting to sue because someone called them a “whore”. That one, as least, is more subject to precise definition. “Whore” is another word for prostitute, so calling someone a whore could be construed as accusing them of illegal conduct.

But let’s run that through the “context is everything” analysis. If in the middle of a diatribe about how the woman stole her man, calling her a whore is not an assertion that she is a prostitute by trade, but rather is a claim that she is a woman of loose morals for taking another woman’s man. On the other hand, if the statement is that she was seen walking the streets and getting into cars, so she is a whore, that would be defamatory if false.

See more articles on Internet Defamation.

 

 

C.A. Says Ex-Employee’s Settlement Demand Was Extortion

Settlement Demand  Was Extortion and Not Protected by Anti-SLAPP Statute

A fired worker who sued his ex-employer for defamation and wrongful termination committed extortion when he threatened to instigate a federal investigation of the company’s business practices if his demands were not met, the Sixth District Court of Appeal ruled.

Source: www.metnews.com

In another application of Flatley v. Mauro, the California Court of Appeal held that a pre-litigation demand letter was not protected under the litigation privilege because it crossed the line into extortion.

In a series of settlement demands prior to filing the lawsuit, the plaintiff stated that while he did not want to “make a Federal case out of” his employment dispute, he had been told by attorneys that if he initiated a qui tam action under the False Claims Act, it would “involve the United States the United States Attorney General, the Department of Justice or the DOD.” In other words, the plaintiff was using the threat of a criminal action to try and extract the payment of money.

The trial court had granted an anti-SLAPP motion, finding that the threats were protected speech, but the Court of Appeal reversed and reinstated the action.

The case is Stenehjem v. Sareen, in which the Court of Appeal provided a nice summary of the distinction between a genuine (protected) request to negotiate, and an (unprotected) extortion threat:

Here, the plain implication of Stenehjem’s August e-mail was a threat that unless Sareen accepted Stenehjem’s “extension of one last opportunity to settle … in a gentlemens [sic] manner,” he would “involve the United States Attorney General, the Department of Justice or the DOD” through a qui tam action alleging Sareen had violated the federal False Claims Act. His multiple references in the e-mail to “bottom-feeding attorneys” (including his own prospective attorney) – noting that he did not want to “enrich” them through a lawsuit – evidenced his linking a demand for negotiation and settlement of his personal claims with forgoing a threatened “Qui Tam option” and exposure of Sareen’s alleged criminal wrongdoing.

Stenehjem’s view that the e-mail was merely a benign desire to meet “face to face” to discuss his claims ignores the implied threat of exposing Sareen’s alleged criminal wrongdoing if Sareen persisted in his refusal to negotiate a settlement of Stenehjem’s claims, ones that Sareen had repeatedly said were meritless. Stenehjem’s stated “request to discuss the matter,” viewing the totality of the e-mail and the six-month history leading up to its transmission, was in reality a demand to negotiate and settle his personal claims or else face the potential exposure of unrelated allegations that Sareen had committed criminal acts. The fact that Stenehjem’s threats may have been “veiled” or “half-couched in legalese” does not disguise their essential character as extortion.

And the fact that Stenehjem did not make a specific monetary demand in the August e-mail does not preclude a finding that it was extortion as a matter of law. In Barton v. State Bar, our high court concluded that an attorney who had threatened to report to the prosecutor an oil company’s alleged practice of illegal product adulteration unless the company made “some sort of settlement'” with the attorney’s clients was conduct both warranting disbarment and “constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code”

More anti-SLAPP news.

Aaron Morris

Morris & Stone, LLP

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Tustin, CA 92780

(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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