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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.

My favorite example as of late was the plastic surgeon we represented. The woman was not happy with some work he had performed. Fine. If she had taken to Yelp and written that she was unhappy with her face lift, I would have defended her right to post that review. She is entitled to her opinion. But she added to her review the tale of how, when she went to visit a medical malpractice attorney, there were four other women sitting in the attorney’s office. They got to talking, and it turned out that all five of them were all there to sue the same doctor! My god, the man must be a butcher. If there were five patients in that one lawyer’s office on just one day, how many women must be in other lawyers’ offices. She added that she learned from the attorney that this doctor was under investigation by the medical board, and would shortly be losing his license.

But could she identify a single one of the other women? Of course not. Could she even name the medical malpractice attorney who she supposedly visited? Of course not. Had anyone ever actually told her that the doctor was being investigated, or that he was about to lose his license? No. She conceded that it was all made up, as was most of the review. She was so angry at the doctor when she was writing the review that she wanted to make sure no other patients went to him, and felt like an evenhanded review about her experience wouldn’t accomplish that task.

It is this sort of review – one containing verifiably false facts that charge the business with illegal, immoral, unethical, or unprofessional conduct – that can be challenged and removed from Yelp. What follows is a very in-depth review of what you can do when someone posts that sort of false and defamatory review.

First, allow me to get some preliminaries out of the way, and then I’ll move onto the solutions for false Yelp reviews.

Where does Yelp get off even listing my business? I never authorized it to do so! Can I force it to remove my business?

I get asked this question all the time, and the answer is no, so let’s get it out of the way. Callers want to retain me to force Yelp to remove their business listing, to prevent anyone from posting comments about the business. The callers think there is some sort of right of privacy that prevents a website from discussing their business unless the business has authorized it. Would you want to live in a world where you can’t offer your opinions about a business, good or bad, unless the business authorizes you to? That would certainly be a tremendous boon for unethical businesses.

So, no, Yelp can’t be forced to remove your listing. Yelp is free to set up a page for every business in existence so that people can discuss any business. And no, it doesn’t violate any trademark or copyright for them to do so.

Can I sue Yelp directly for the false review?

The answer to this question seems to be pretty well known by now, but I still get calls about it. No, under the Communications Decency Act (“CDA”), a website cannot be sued for information posted by a third party. When the internet came along, Congress decided to favor open discussions on the web. Congress wanted website operators to be able to offer the opportunity for website visitors to post comments. It recognized that if website operators could be held liable for the comments posted by visitors, the swift and immediate action would be that no websites would offer public forums. Congress created the CDA, which immunizes website operators from ANY liability for statements posted by third parties. That doesn’t change, even if you notify the website that something posted there is defamatory.

In a minute I’ll be discussing the case of Hassell v. Bird, in which the court ordered Yelp to remove a defamatory post. The case is currently being considered by the California Supreme Court, which may hold that Yelp can be named in an action which seeks removal of a defamatory post, for injunctive purposes only, but that remains to be seen.

OK, with the preliminaries out of the way, let’s see what you can do about a false and defamatory Yelp review.

Step One – Decide if you really need to do anything.

A business with 50 positive reviews will likely not be hurt by a single false review. Everyone understands there will always be trolls and background noise, and that no business can make every single customer happy. But a business with only five reviews is in a much different situation. There, a bad review will likely appear on the first page of Yelp’s results, and depending on the nature of the business, many potential customers will simply elect to move on rather than to take a chance on a business with a really bad review.

Don’t let your ego take over. It may be a real source of pride that you had nothing but five star reviews, and this one false review is driving you crazy, but sometimes it’s best to listen to Queen Elsa and Let It Go.

Your better solution may be to encourage your customers to post more reviews, in order to water down the false review, while perhaps pursuing some of the additional steps that follow.

Step Two – Try to get Yelp to remove the review by showing that it violates its Terms of Service or Content Guidelines.

This is not likely to succeed, but it is a reasonable step, and its chances of success depend on the wording of the review. But first, a little background.

Yelp is not your friend. Yelp’s business model depends on negative reviews, so they are not incentivized to remove false reviews. To give you an idea how far Yelp will go to maintain false reviews, in a recent case (Hassell v. Bird), after determining at trial that a review posted on Yelp was false and defamatory, the judge ordered Yelp to remove the review. Yelp certainly wants only honest reviews, so it must have been stoked to learn that a false review had been discovered so it could remove it, right? Au contraire mon frère.

Yelp appealed the matter to the California Court of Appeal, arguing that it should not be compelled to remove false reviews. After the Court of Appeal ruled against Yelp, it appealed it to the California Supreme Court. That case is now pending. Yes, Yelp has literally taken its right to maintain false and defamatory reviews all the way to the Supreme Court, even though its own Terms of Service state that defamatory reviews are prohibited.

So, don’t think for a second that you will be able to go to Yelp with evidence of a false review, and Yelp will investigate. In a perfect world, Yelp would have some sort of reviewing body to consider such evidence, but I recognize that isn’t feasible.

Let’s say you are an electrician, and after doing a perfectly wonderful job of installing a 220 volt line to a homeowner’s new laundry room, they trash you online because the homeowner’s Uncle Albert told him your work was not up to code. But you have proof that it was up to code, as evidenced by the sign-off from the city and all the receipts you have from Home Depot showing you bought the proper gauge of wire and other parts. You send your evidence to Yelp, assuming they will consider the matter.

How would Yelp review that claim? The fact that the city signs off on work is never proof that it was up to code. The inspector might have missed something. The receipts you have from Home Depot could be for parts from another job. Even if you provided a report from an independent electrician, stating that the work was perfect, how would Yelp test the veracity of that report? You may have paid your Uncle Buck to prepare a false report.

The only way Yelp could confirm your claim with any certainty would be to hire its own electrician, and even that presents a problem. Sometimes even experts can’t agree. I am defending a Yelper right now (while Yelp is evil, the people who post reviews are not necessarily so and sometimes need to be defended), who posted a completely honest review about his accountant, stating that the accountant made a mistake on his taxes. The accountant sued him for defamation, claiming he had not made any mistakes. Our expert said the accountant screwed up, and their expert said he didn’t. Back to our electrician, even if the expert hired by Yelp determined that the wiring was fine, that doesn’t necessarily make is so. Only a vigorous review of all of the facts via the legal process can come close to determining whether the work was up to code.

Obviously Yelp cannot hire an expert every time someone claims a review is false, so we can’t really fault them for failing to do so. The situations that frustrate me, though, are when Yelp turns a blind eye toward obviously false reviews.

For example, sometimes businesses will post multiple fake reviews about a competitor. These situations are usually pretty easy to spot, because the reviews will all be posted on the same date, from accounts that have posted little or no other reviews. Typically, all the accounts will have been created using the same computer and internet service provider, so they will all have come from the same IP address. It would take Yelp about one minute to check to seek if the reviews were all posted from the same IP address. Heck, it wouldn’t even take them one minute because they could build into their algorithm to flag multiple reviews from the same IP address for evaluation, but they are not interested in doing so. When I have asked Yelp to do so for clients, they have responded that since there is the chance that multiple reviewers just happened to go to the same internet café on the same date to review the same business, Yelp can’t be certain they were all posted by the same person. (Yelp’s attorney didn’t put it in those exact terms, but that was the ridiculous gist.)

Look at the entire mindset of Yelp. When you read a review on Yelp, you are given three choices to rank the review. You can rank it as “useful”, “funny”, or “cool”. It’s as though every review has merit, and all you can do is promote them. Unless the business has a Yelp business account, it can’t respond to the review. On Amazon, by comparison, you are asked whether or not the review was helpful, anyone can comment on the review, explaining why it does not ring true, for example, and following every review is a link to “report abuse”. Best Buy, Walmart, and Newegg are all set up in similar fashion.

Why doesn’t Yelp afford the ability to respond to a review? Isn’t that kind of a no-brainer; to create a dialog between the reviewer, community and the business? Again, it comes down to Yelp’s business model. A business must have a Yelp business account in order to respond to reviews (even to say thanks for a good review).

But with all that said, even though Yelp will fight to the death to maintain a defamatory review, it is sometimes open to removing reviews that violate their Terms of Service in other ways.

Here are the restrictions listed in Yelp’s Terms of Service:

You agree not to, and will not assist, encourage, or enable others to use the Site to:

  • Violate our Content Guidelines, for example, by writing a fake or defamatory review, trading reviews with other businesses, or compensating someone or being compensated to write or remove a review;
  • Violate any third party’s rights, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
  • Threaten, stalk, harm, or harass others, or promote bigotry or discrimination;
  • Promote a business or other commercial venture or event, or otherwise use the Site for commercial purposes, except in connection with a Business Account and as expressly permitted by Yelp;
  • Send bulk emails, surveys, or other mass messaging, whether commercial in nature or not; engage in keyword spamming, or otherwise attempt to manipulate the Site’s search results or any third party website;
  • Solicit personal information from minors, or submit or transmit pornography; or
  • Violate any applicable law.

In addition to these Terms of Service, Yelp also publishes Content Guidelines, which are as follows:

  • Inappropriate content: Colorful language and imagery is fine, but there’s no need for threats, harassment, lewdness, hate speech, and other displays of bigotry.
  • Conflicts of interest: Your contributions should be unbiased and objective. For example, you shouldn’t write reviews of your own business or employer, your friends’ or relatives’ business, your peers or competitors in your industry, or businesses in your networking group. Business owners should not ask customers to write reviews.
  • Promotional content: Unless you’re using your Business Owners Account to add content to your business’s profile page, we generally frown upon promotional content. Let’s keep the site useful for consumers and not overrun with commercial noise from every user.
  • Relevance: Please make sure your contributions are relevant and appropriate to the forum. For example, reviews aren’t the place for rants about a business’s employment practices, political ideologies, extraordinary circumstances, or other matters that don’t address the core of the consumer experience.
  • Privacy: Don’t publicize other people’s private information. Please don’t post close-up photos or videos of other patrons without their permission, and please don’t post other people’s full names unless you’re referring to service providers who are commonly identified by or commonly share their own full names.
  • Intellectual property: Don’t swipe content from other sites or users. You’re a smart cookie, so write your own reviews and take your own photos and videos, please!
  • Demanding payment: Beyond simply asking for a refund to remedy a bad experience, you should not use removing or posting your review as a way to extract payment from a business, regardless of whether you’ve been a customer.

Does the Yelp review make clear that the person never actually patronized the business?

Although it’s not specifically listed as a content guideline, it seems that the most common basis that businesses are able to get reviews removed is when it is clear from the content of the review that the poster never actually visited the business.

For example, a doctor who does Botox injections might get a one-star review that states, “Only a crazy, vain person would allow a doctor to inject poison in their face. Accept your frown lines!” That person is not offering any review of the business, but rather is just venting on the nature of the business. Again, however, don’t think Yelp will consider your evidence that the person was never a customer. That fact must be obvious from the wording of the review.

Also, sometimes Yelp is open to removing (and when I say “removing”, more often Yelp just moves the review to the filtered section, so it is still accessible) a review that is blatantly intended to promote a competitor. Something like, “Their pizza is really greasy. You should go to Mario’s Goodtime Pizza at 123 Main Street, where the pizza is much better, and just $7.99 for a large, two-topping on Tuesdays, and happy hour is from 5 to 7 every day.”

Is the review threatening or invasive?

Even Yelp has its limits, and it may remove a review that is obviously posted for retaliatory purposes. These reviews contain little or no information about the business, but rather are attempts to hurt the business or its owners. It may say something like, “Don’t do business with this company. The owner is a home wrecker. After 18 years of marriage, she had an affair with my husband. If you live near her home at 123 Main Street, you should drop by and tell her what you think about sluts.”

Can I sue Yelp for failing to follow its own Terms of Service and/or Content Guidelines?

Not a terrible question, but for a number of reasons, the answer is no. From a conceptual standpoint, when a website posts Terms of Service or Terms of Use, those are the rules it is imposing on its users, not itself.

But even if you could make the argument that Yelp’s Terms of Service create an enforceable agreement, then you are bound by ALL the terms. Yelp’s Terms of Service state that defamatory speech is prohibited, but they also contain the following language:

We are under no obligation to enforce the Terms on your behalf against another user. While we encourage you to let us know if you believe another user has violated the Terms, we reserve the right to investigate and take appropriate action at our sole discretion.

Step Three – Decide if you want to engage with the defamer.

Assuming you know the identity of the defamer, you need to decide if communication will do any good. In the case of an honest, but negative, review, it makes good sense to contact the customer and ask, “What can we do to make this right?” But in the case of a false review, you are dealing with a person who has already shown they lack integrity, since they lied about your business. Too often, that type of person will use the communication against you, returning to Yelp to state that you are now harassing them.

Step Four – Respond with a letter from an attorney.

If you feel that the review must be addressed, a letter from an attorney can be very effective at removing false reviews. This presumes, of course, that the review is from a real customer, and that you can identify the customer. For the reasons already stated, I won’t send a letter to a Yelper, if the review is just opinion. The point of a letter from an attorney is to demand removal of the false review, and I can’t make such a demand if the review is not false.

But if the customer posted a verifiably false review, then a letter can be effective IF done properly. Unfortunately, most attorneys erroneously believe that a cease and desist letter needs to be threatening and adversarial. They feel like the point of the letter is to intimidate the Yelper into removing the post with threats of fire and brimstone.

The far more effective approach I employ is to let the Yelper know that I just want to do what’s right. If the client is telling me the review is false, but it is really true, then I want to know so that I can tell the client to go no further. On the other hand, I let the Yelper know that truth is a defense, so the burden is on the Yelper to prove any statements. For example, in one case the Yelper posted that no one should eat at a particular restaurant, because it was so dirty that it had been shut down by the Health Department, and was currently operating on a provisional Class C rating. I advised the Yelper that information was contrary to all I had been told and had found out through my investigations. I politely asked for the source of the information. The review was taken down that same day.

Step Five – Decide if you want to pursue legal action.

If your efforts to get Yelp to remove the review were unsuccessful, and if the Yelper won’t remove the false review, or you don’t know his identity to make the request, then legal action will be necessary. In order to subpoena the information necessary to identify the Yelper, a complaint must be filed. It is the complaint that provides the subpoena powers. It is usually necessary to first subpoena from Yelp the IP address used to post the false review, and then to subpoena the customer information from the Internet Service Provider that owns that IP address.

Do I need to go through the subpoena process if I know the identity of the person who defamed me?

The plaintiff in an action always has the burden of proof. If you are going to sue the person who defamed you, you will have the burden of proving the identity of the defamer. You may be 100% sure that you know who posted the review, but if the person denies it, what evidence will you be able to prove that he is the one?

People get very creative in their lies when their identity is revealed. In one case, we found that the defamatory posts about our client had been created from the internet account of a terminated employee. He claimed that it just so happened that on the day the review was posted from his home, he had invited a transient to spend the night, and had allowed him to use the computer. He had told the transient about being fired, so he surmised that the transient must have posted the bad review out of anger over the way the employee had been treated. Yeah, the court didn’t buy it either.

It all comes down to the evidence, and whether a trier of fact would determine that it is more likely than not that the defendant is the defamer. If the defamer has corresponded with you, confirming that he posted the review, you probably won’t need to go through the subpoena process.

Just learning the identity of the Yelper is often enough to resolve the matter. He posted the review, believing he would remain anonymous, but when it is discovered that he has never been to the business and only posted the fake review because his boss told him too, there is little incentive to carry on with the lie.

Will I have to take the case all the way to trial?

Probably not, but it depends on your goals. If you just want the false review removed, just serving the complaint usually accomplishes that goal. There may be some resistance at first, but soon the defendant realizes that there is no justification or defense for what he did, and wants to settle.

If your goal is to recover the damages you suffered as a result of the defamation, then you can anticipate that the case will go much further. No one wants to write a check without a fight. It still probably won’t go to trial – fewer than 15% of cases go all the way to trial – but it may not settle until the eve of trial.

Step Six – Compel Yelp to take down the review.

Until recently, the courts had held that, pursuant to the Communications Decency Act (CDA), Yelp could not be compelled to take down anything posted by a third party. Now, thanks to the holding in Hassell v. Bird, if a court concludes that a Yelp review is false, in conjunction with ordering the Yelper to take down the review, it can also order Yelp to do so, in the event the Yelper defies the order.

Note, this does not mean that the victim of defamation can sue Yelp directly. The CDA still prevents any direct lawsuit against a review site for reviews posted by others. But now with the authority of Hassell v. Bird, Yelp can be included in the take-down order.

If you are victimized by a verifiably false review on Yelp, where the statements are verifiably false, and you decide to take action to have it removed, call Morris & Stone at (714) 954-0700.

A very alternative approach – Mount your own counter-attack.

I don’t know if I can recommend this technique, since it may get you sued, but I like the poetic justice it affords.

More and more often I am receiving calls from potential clients, wanting me to review the information they have posted online. Since Yelp won’t offer any relief from a false review, the clients have taken matters into their own hands and either posted a review about the defamer’s own business on Yelp, or created a website devoted to the defamer.

For example, a dentist gets a false review from one of his patients, who was perfectly happy with the work, but is using the bad Yelp review in an attempt to extort a refund of the money paid by her dental insurance (it happens all the time, to the point that I think some people get dental work done only because they see it as a source for cash). From his dealing with the patient, the dentist knows that the patient owns a dog grooming business, so he trashes her as well, hoping to create leverage whereby they both agree to remove their reviews.

This technique is unacceptable, unless you happen to have had bad service from the customer. My momma always told me that two wrongs don’t make a right, so I can’t get behind lowering yourself to the level of the defamer, and lying about his business like he did yours. The circumstance where the defamed business owner just happened to have had a bad experience with the defamer’s business would be extremely rare.

But there is a related approach that has some appeal, and I’ve seen it applied successfully.

I recently spoke to a landscape architect (who authorized me to share this story) about what had probably started out as an innocent miscommunication with a potential customer. The customer had called the architect, seeking an appointment. Right off the bat he was put off by the fact that architect said he would charge to create a landscaping plan, but decided to go with him. He asked when they could meet, and the architect said, “let’s chat on Tuesday.” The architect meant that to mean, “call me on Tuesday and we’ll pick a date and time”, but for some crazy reason the customer took it to mean, “I’ll be there on Tuesday,” which made no sense at all since no time was discussed.

So Tuesday comes, the architect never shows, so the customer takes to Yelp to trash him, claiming he waited the entire day for the architect to show, and as a result had to miss a wedding, Bar Mitzvah, and his admission to the Royal Order of the Water Buffalo, or some such nonsense. He added that the architect was completely unethical because he charges to create landscaping plans. When we checked the customer’s Yelp profile, we found that he almost exclusively posts this sort of flaming review. He apparently gets off on harming businesses. The architect contacted the customer to see if they could work it out, but it was clear that he had no interest in an amicable resolution.

Well, the customer had a relatively unique name; let’s call him Baruk Barinda. So the client buys the domain, barukbarinda.info, and creates a website about him, disclosing some entirely accurate and truthful facts Barinda would probably not want to have public, and how he is someone employers and customers should probably avoid given his bizarre behavior on Yelp. Now, anyone who Google’s “Baruk Barinda” will see this website about him in the number one position.

I have seen this technique before, and people tend to take it way too far. They dox the person with malicious intent, publishing their home and work addresses, telephone numbers, social security number, etc. In this case, the architect kept it completely above board. Everything was true and did not step over the line into doxing. It was basically, “Baruk Barinda stated in a Yelp review that I am unethical. Let me tell you a little about HIS ethics.”

Lying blogger ordered to pay $3.5 million in defamation lawsuit | PersonalInjury.com

A Shelby County, Alabama, blogger, who spent five months in jail before agreeing to remove stories from his website about the son of a former governor, has now been ordered to pay $3.5 million in a defamation lawsuit filed by a former campaign manager for the state Attorney General.
The blogger had written about an fictional affair between the attorney general and the campaign manager. 

Sourced through Scoop.it from: www.personalinjury.com

Yes, even  bloggers are subject to defamation laws.

I encounter a common belief that anything published on the Internet is somehow protected free speech. In fact, it is protected free speech until one steps over the line into defamatory speech. Defamatory speech enjoys no protection.

Of note in this case, the blogger spent five months in jail for his defamation. Not because he defamed, but because he refused to stop defaming. You see, a court cannot order you not to publish information that you want to publish, but once that information has been found to be defamatory, then the court can order you never to tell the same lies again, and can order you to remove the lies from the Internet.

In this case, the blogger was ordered after trial to remove the defamatory comments, but refused to do so. He even added more information. This amounted to contempt, and the court put him in jail until he removed the statements. He stood on his purported principles for five months, and then relented and had his wife remove the posts.

Yelp Sues the McMillan Law Group, Claiming it Posted Fake Reviews

YelpI get probably two calls a month from potential clients, complaining that after they refused to subscribe to Yelp’s services, Yelp responded by removing most or all of their positive reviews. If true, then Yelp cannot seriously contend that it is interested in the integrity of its reviews.

The claims seem supported by a recent action by Yelp. In this case, a small San Diego law firm, the McMillan Law Group, subscribed to Yelp’s services, allegedly based on representations that were made about the number of page views it would receive. When the results fell below what the McMillan Law Group says was promised, it demanded a refund. Yelp balked, and the law firm sued in small claims court. The firm prevailed, and obtained a $2,700 judgment against Yelp.

Yelp appealed, and doubled-down by filing its own action back against the McMillan Law Group. It seems that Yelp had been busy looking into the law firm’s positive reviews, and decided that they did not all adhere to Yelp’s terms of use. Yelp’s complaint is a sight to behold, alleging that the McMillan Law Group is liable for breach of contract, intentional interference with contractual relations, unfair competition and false advertising. Yelp alleges:

“The McMillan Law Group, a San Diego law firm specializing in bankruptcy, exemplifies the behavior that Yelp combats daily through its algorithms and investigations—the planting of fake reviews intended to sway potential clients with false testimonials. The McMillan Law Group’s efforts to mislead consumers are particularly brazen and disappointing given they have targeted some of the most vulnerable consumers of all—individuals who may be facing bankruptcy and who are looking for potential legal representation.”

In the complaint, Yelp details its investigative results, alleging that multiple Yelp user accounts were created from a computer located at the same McMillan Law Group IP address used to create reviews about that law firm.

In an interview with Bloomberg Law, Julian McMillan stated, “It’s bullying tactics. I get it. They want me to spend some money but I just don’t see how they come a winner in this [from a PR standpoint].”

As McMillan also notes, Yelp’s lawsuit seems like a really bone-headed move from a discovery standpoint. Since Yelp is claiming that false reviews by the McMillan Law Group have interfered with its contractual relations and caused it damages, it has now made all of its business practices and income fair game for discovery. It will also be very interesting to learn whether Yelp routinely brings such lawsuits to maintain the integrity of its reviews, or does so only in response to being sued.

For a detailed discussion of the love fest between Yelp and the McMillan Law Group, see the article at Bloomberg Law.

Understanding the Wall of Wrong — Shaheed Sadeghi v. Delilah Snell

Wall of WrongI just wish counsel would run their defamation cases past me before filing. Here is a tale of a SLAPP that should have been spotted a mile away.

The tale starts with an article in OC Weekly. The article was about a guy named Shaheen Sadeghi. The article was extremely favorable to Sadeghi, referring to him as the “Curator of Cool” and discussing his amazing success in Orange County. OC Weekly even put his visage on the cover of the paper. Truly, it was a positive article that most would kill for.

But everyone has their detractors, and Sadeghi’s was a woman named Delilah Snell. After disclosing that Snell happens to be the girlfriend of a OC Weekly editor, the article reports on a dustup between Snell and Sadeghi, as told by Snell. Here is what the article said:

Still, some say Sadeghi will do whatever it takes to succeed. Delilah Snell, owner of Road Less Traveled, a shop in Santa Ana that sells environmentally friendly gifts and home goods, met with him in 2008 to discuss an opportunity to move to the Camp. (Full disclosure: Snell is the girlfriend of OC Weekly editor Gustavo Arellano.) She says the rent rate he gave was way too high, at least triple what she was paying, and she declined the offer. Then, she claims, he made a threat. “He basically said to me, ‘If you don’t move into my center, I will copy your business,'” she says.

Snell, co-founder of the Patchwork Indie Arts & Crafts Festival and a pioneer in Orange County’s eco-movement, believes her store is the model for the Camp’s SEED People’s Market, an airy, 12,000-square-foot gallery-type outlet that sells sustainable products and handmade crafts. Sadeghi owns the store with his wife, Linda. Snell claims that SEED has approached many of the vendors featured at Road Less Traveled and even used a photo of her shop in a promotional email sent out to customers. (The Weekly has a copy of the email.)

The article then goes on to tell Sadeghi’s side of the story:

Of Snell’s accusations, Sadeghi responds, “I think she’s full of it.” He says his business plan for SEED was dated “five years before she developed a business plan.”

“It’s a whole different store, whole different vibe,” he says, “and it has nothing to do with Road Less Traveled.”

The article then returns to singing the praises of Sadeghi, providing examples of how he is beloved by his tenants at his business centers like The Lab in Costa Mesa.

Sadeghi sued Snell in Orange County Superior Court, alleging in his complaint that Snell “orally accused Mr. Sadeghi of threatening to copy Ms. Snell’s business idea and plan if Ms. Snell did not move into Plaintiff’s retail center.” Sadeghi then alleged causes of action for slander, slander per se, libel, libel per se, invasion of privacy/false light, intentional interference with economic prospective advantage (sic), negligent interference with economic prospective advantage (sic), unfair competition, and injunctive relief. Whew! All arising from the statements Snell allegedly made to the OC Weekly, claiming that Sadeghi had said “If you don’t move into my center, I will copy your business.”

A Quick Aside to Discuss the “Wall of Wrong”.

A potential client will call me, and during the call will tell me about 20 evil deeds committed by the defendant. They have been horribly wronged, and they want to sue. Fair enough, but for a legal action each wrongful deed must be viewed independently to determine if it is actionable. I call the wrongful acts the “Wall of Wrong”, and each wrongful act is an item on that wall. I explain to the client that to determine if there is a case, we must walk up to the wall, take down each item and examine it independently to see if it will support an action. If not, it is tossed away never to be discussed again.

The reason this exercise is so important is because the client has a perception of being slammed by the defendant, and is absolutely convinced that all that wrongdoing must equate to an action, but when all the conduct that does not support the action is stripped away, the client will often see that what is left remaining is pretty petty.

So let’s take Mr. Sadeghi to the Wall of Wrong to see if he has a defamation action. Continue reading

Saying Your Letter Cannot be Published Does Not Make it True

In a prior posting, I discussed how ineffectual cease and desist letters are, and how some recipients of such letters will even post them as a sort of badge of honor.

In an apparent attempt by some attorneys to keep from having their letters published, I have now seen a number of instances where the attorney sending the letter adds the following language:

“You are not authorized to disclose the contents of this letter publicly or to disseminate it…”

Some even go so far as to claim that the letter is copyrighted, asserting that by publishing the letter the recipient will be violating copyright law. This is all hogwash, but I suppose the attorneys reason that the recipient may not know that it is hogwash, and it may prevent some of them from putting up the letter and making fun of the attorney and his or her client for sending it.

For a great example of this, and how instead of achieving the intended purpose it only invited greater comment, check out this amusing article by techdirt. The article is also a great example of not knowing when to hold them, and when to fold them.

I learned long ago to view every letter I draft as a potential trial exhibit. Don’t send a letter you would not want to see projected onto a wall for the judge and/or jury to view and critique. That rule now applies to the Internet. If an attorney feels the need to insert language falsely claiming that the recipient is not allowed to show it to anyone else, then that is a letter that probably should not be sent.

Using Offensive anti-SLAPP Deemed Frivolous

International Anti-SLAPP motionAn international defamation action has ended up here in California. Out of the UK, Tyneside councillors (that’s the way they spell it over there) are very upset that an anonymous blogger who calls himself “Mr. Monkey” has been defaming them.

The council has backed a three-year hunt to discover the identity of Mr. Monkey, with the legal fees now exceeding six figures. So far, since they did not retain Morris & Stone, the attempts to uncover the identity of Mr. Monkey have been unsuccessful.

Enter Coun Ahmed Khan, a councillor from a rival political party. The four plaintiff councillors successfully moved to have Khan’s personal computer records disclosed, because they apparently suspected him of being Mr. Monkey. Khan denies that he is the primate in question, but has cried “enough is enough”, and wants to put an end to the search.

To that end, he brought what I can only characterize as an offensive anti-SLAPP motion (not offensive as in crude, but as in the opposite of defensive). He intervened in the San Mateo Superior Court action and filed an anti-SLAPP motion, asserting that even though he is not Mr. Monkey, the comments of Mr. Monkey are protected and the action should therefore be dismissed.

Motion DENIED. Indeed, the court found the motion to be so frivolous that it awarded attorney fees of £40,000 to the plaintiffs. (I once obtained a judgment in Los Angeles Superior Court in British pounds. It’s worth it just to see the court clerks try to figure out how to enter it into the system and calculate interest and the like.)

Khan has now appealed the denial of his anti-SLAPP motion and the award of attorney fees. The complete story can be found here.

[Correction]  The sources upon which I was relying may have jumped the gun as to the award of attorney fees. One of the parties to the action contacted me to state that the £40,000 figure is what is being sought, but that the motion for those fees has been stayed pending the appeal.

“Fox & Friends” Hosts Not Liable for Repeating Parody

Fox & Friends
Fox & Friends


The Internet is an amazing source for both information and misinformation.  One of the most telling examples was the case of Sarah Palin.  A fictional question and answer session was written and published, with Palin purportedly making the comment that dinosaurs had roamed the earth just 5000 years ago.  Many failed to realize (or chose not to recognize) the story was satire, and reported the dinosaur story as true.  (Leading to an almost tearful Matt Damon proclaiming during an interview that she was not fit to serve because of her dinosaur beliefs.)

So-called traditional news sources cannot ignore what is posted on the Internet because it often is a breaking source for news; the commercial airline landing in the Hudson river being a recent example.  But when parody is mistaken for truth, defamation can occur.

The cable show “Fox & Friends” reported a parody about a school principal as true.  The real story was that a middle school student had left some ham on a table frequented by Muslim students.  He was disciplined for his insensitivity.  The parody took the story to an extreme, claiming that the school principal had instituted an “anti-ham response plan,” designed to teach the children that “ham is not a toy.”  The hosts of Fox & Friends reported the parody as truth, and derided the principal for his overreaction.  The principal sued for defamation in Levesque v. Doocy.

Fox & Friends was saved by New York Times v. Sullivan, the 1964 Supreme Court decision that created the “actual malice” standard for defamation against a public figure (also referred to as “New York Times actual malice”).  But for the fact that the plaintiff was deemed to be a public figure, Fox would have been liable.

Go here for the detailed story, and here for the actual court decision.

Aaron Morris

Morris & Stone, LLP

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Tustin, CA 92780

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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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