Richmond Restaurant Encourages Bad Yelp Reviews
Botto Bistro in Richmond is not very concerned about its Yelp rating. In fact, in an effort to undermine the reliability of its Yelp page, the five-year-old Italian restaurant is on a mission to be the worst-rated restaurant in the Bay Area.
To achieve this end, Botto Bistro is encouraging all of its customers to leave one-star Yelp reviews; it is even offering deals for anyone who pens a crummy review: 25% off any pizza and a chance to win a cooking class. (Hat-tip to Richmond Standard.)
Source: insidescoopsf.sfgate.com
I applaud these restaurant owners.
In recent court documents, Yelp has admitted that its reviews are not trustworthy, and these owners have found a way to get out that message. They encourage their patrons to write bad Yelp reviews. It’s just a great way to get people to realize that anyone can write anything.
Ironically, Yelp wrote to the business to say that it is improperly paying for reviews. The business responded, “Yes we are. Thank you for noticing.”
Now the fun begins. In a case called McMillan Law Group, Yelp is suing a law firm that had dared to successfully sue Yelp. Yelp filed its own suit, claiming that if a business encourages Yelpers to write false reviews, that amounts to interference with contract. How so? Well, according to Yelp, anyone who posts a review is subject to the terms of use for the site, and those terms of use provide that the users should not post fake reviews. If a business asks those users to post fake reviews, then that business is intentionally interfering with the “contract” between Yelp and its users. If Yelp fails to sue this restaurant, how will it explain that inconsistency?
Court of Appeals upholds $14.5 million defamation verdict against State Farm in hail fight
The largest defamation verdict in Indiana history — more than $14.5 million awarded to a contractor who claimed State Farm Fire & Casualty ruined his business and reputation — has been upheld by the Indiana Court of Appeals.
In a decision issued Tuesday, the three-judge panel found Hamilton Superior Court Judge Steven R. Nation correctly denied the insurance giant’s request for a new trial based on a claim that roofing contractor Joseph Radcliff obtained the judgment through fraud on the court.
The case grew out of a 2006 storm that battered Central Indiana with golf-ball-size hail and ravaged thousands of homes. The damage tally topped $1 billion, with State Farm alone paying out more than $200 million on about 50,000 damage claims.
The payout to Radcliff, however, was not the result of damage to homes or cars — but for what a Hamilton County jury determined was damage State Farm did to the roofing contractor’s reputation.
Source: www.indystar.com
These cases are becoming so commonplace, I’ve taken to calling them the “second appeal.” Here’s the way they work.
The defendant loses in the trial court, then they lose on appeal. Left with no other way to challenge the outcome, they bring their own action, claiming the original verdict was achieved by a “fraud on the court,” usually based on some evidence the defendant claims would have resulted in a different result. There is support for such an action, but the circumstances for a successful fraud on the court claim are extremely narrow.
So it was in this case. The insurance company claimed that after the trial, it obtained a declaration from a witness who said the plaintiff had lied and withheld evidence. It claimed that was a fraud on the court, and the judgment should therefore be thrown out. That approach won’t fly. Courts want finality to their verdicts, and that is evidence that could have been presented in the original trial. A defendant does not get to call a “Mulligan” because it failed to vigorously defend the case the first time around.
In one of my cases, a plaintiff sued my client and we counter-sued. In the end, we obtained a large judgment, and just as in this case, the plaintiff appealed and lost. The plaintiff then brought an action for fraud on the court, claiming the entire matter had been covered by an arbitration agreement, and that we had “defrauded” the court by allowing it to enter a judgment, knowing the matter was subject to arbitration. You read right. The plaintiff brought the action under an agreement that contained an arbitration clause, and then claimed that we had defrauded the court by not invoking the arbitration requirement. The case was thrown out on demurrer.
Glenn Beck’s audacious defense against Boston Marathon bombings defamation suit
Broadcaster Glenn Beck, formerly of Fox News, was nonetheless suspicious of Alharbi. He thought the Obama administration was hiding Alharbi’s involvement. So three weeks later, Beck urged the government to release its information on Alharbi or else Beck would “expose” him.
“While the media continues to look at what the causes were [behind] these two guys, there are, at this hour, three people involved,” Beck said, alleging the U.S. government had “tagged” Alharbi as a “proven terrorist.” Over several broadcasts, Beck called Alharbi the “money man” behind the Boston bombings. “You know who the Saudi is?” Beck asked. “He’s the money man. He’s the guy who paid for it.”
What Beck said about Alharbi was untrue. Alharbi sued Beck for defamation in federal court in late March. And now, in a batch of little-noticed motions, Beck has lashed back, saying Alharbi is trying to “punish” and impede Beck’s First Amendment rights. Beck argues the bombings made Alharbi a “limited purpose” and “involuntary” public figure who must prove not just that Beck made false accusations, but that Beck did it with “actual malice.”
Beck sticks to his guns that the man suing him for defamation had acted “suspiciously.”
Source: www.washingtonpost.com
This appears to the the classic, “I talked about you and made you a public figure, and now that you are a public figure, you have to show what I said about you was said with malice.” I’ll monitor this one and let you know how it is decided.
See on Scoop.it – Defamation Law
Jones Day Threatens SLAPP Suit Against Detroit-Area Blogger
Jones Day, the third largest law firm on the planet, is focusing their weighty legal acumen and collective wrath upon the head of one lone Detroit-area blogger who dared to poke serious fun at their activities in the Detroit bankruptcy proceedings. Also found in the blogger’s sardonic cross hairs is one of the firm’s former associates, Kevyn Orr — aka, Detroit’s Emergency Manager — both parties are being scorched in parody by the outspoken blogger over their joint roles in looting the already decimated city coffers.
Source: www.democracy-tree.com
Business clients call to ask me to examine some review that was posted on-line, wanting to sue for defamation. When I advise them that the comments are permissible statements of opinion and not actionable defamation, the next question is almost always, “but can you at least send a cease and desist letter to make him take it down?”
No, I can’t, because it would be a toothless threat designed to intimidate someone out of exercising their right of free speech.
Apparently the law firm of Jones Day does not operate under the same standard, especially when its own ox is being gored. The firm sent a threatening letter, claiming that a blogger could not use its name in order to criticize it. This is a common ploy, used in the hope that the recipient of the threatening letter won’t know any better. Free speech would be dead indeed if critics could not name the people and entities they are criticizing. Just as Stephen Colbert can use the name and even the logo of Domino’s Pizza in his parody news report, this blogger was free to use the name and logo of Jones Day, and any action by Jones Day would have been a clear SLAPP suit. Here is the letter that the Electronic Frontier Foundation sent in return, calling Jones Day’s bluff.
Sleeping Fan Sues New York Yankees, MLB, ESPN for Defamation
Andrew Rector proved today that you really can sue anyone – even MLB, ESPN or the New York Yankees – for just about anything.
Source: www.rantsports.com
Clients often call and say, “can this person sue me for defamation if I [fill in the blank].” As I always say, and as this case illustrates, anyone can sue anybody for anything. The question is, can they do so successfully? Here, a sleeping baseball fan by the name of Andrew Rector is suing for the comments made by the sportscasters when the camera captured him napping.
Can he sue for defamation? Well, there is absolutely no basis for a legal action here, but yes he could type up a complaint and file it with the court. But will he be successful? The answer here will be, no. A ridiculous and frivolous suit. Defamation requires a verifiably false statement that would cause one to be shunned by society. The sportscasters did not make even one negative comment about Rector.
“But what about using his image without permission?” some will ask.
This question illustrates an interesting phenomenon, whereby people live their lives witnessing some reality, yet cannot apply what they have seen and know. In every television newscast we see people being filmed, often in a very unflattering light, such as when they are doing the “perp walk” after being arrested. Do the people who ask this question think that the network ran around getting signed waivers from everyone who appeared on camera?
One does not have a right of privacy if filmed out in public. If you are allowing yourself to be seen, you are allowing yourself to be recorded.
Of course there are limitations, based on a reasonable expectation of privacy. A pervert can’t hold his phone over a bathroom stall and claim it was ok because the person was using a public restroom.
And California recognizes what is called a “right of publicity,” meaning that one can’t record you and then use that recording for profit. If the MLB started a campaign to advertise that their stadiums are a great place to sleep, and used Rector’s image to promote the campaign, he might have a valid right of publicity claim.
But this matter really just came down to Rector being embarrassed that the sportscasters commented on his nap. He was probably teased about it at work for a few days. That is not a basis for legal action.
[UPDATE:] My prediction was correct. As reported by the New York Daily News, the court threw out (or should I say, put to sleep?) Rector’s ridiculous legal action.
Here is the video of the incident in question, which resulted in the unsuccessful legal action:
Cooley Law School loses defamation suit against New York law firm
Cooley Law School has lost an appeal in their defamation lawsuit against a law firm that posted criticism of the school’s reporting of student debt on a popular law school message board.
The school had filed a $17 million lawsuit against Kurzon Strauss LLC, a New York firm, and two attorneys associated with the firm, Jesse Strauss and David Anziska, accusing them of posting defamatory statements on the popular law school message board “JD Underground.” The post said that federal regulators were investigating Cooley Law School over student loan default rates and employment for graduates.
Those statements were later retracted, but the firm then began preparing a proposed class-action lawsuit against the school, at which point Cooley filed its suit against the firm accusing them of defamation, breach of contract and interference with business relations, among other claims.
A trial court granted judgment to Kurzon Strauss before trial, saying that Cooley Law School was a “public figure” and therefore would have to prove that the firm acted with a disregard for the truth, a bar the court said Cooley could not clear
Source: www.mlive.com
When in individual or entity is deemed to be a “limited public figure”, the theory is that such a person has greater access to the media, and therefore tell their side of the story. Therefore, when a limited public figure sues for defamation, they have a higher standard of proof to show that defamation. Specifically, they must show the person who allegedly defamed them acted with “actual malice” or “reckless disregard for the truth.”
Here, the court concluded that Cooley Law School would not be able to meet that burden.
Bitcoin Extortion Letters Threaten Pizza Restaurants with Yelp Libel
Pizza restaurant owners in America have been bombarded with letters threatening them with bad online publicity including bad reviews on sites such as Yelp, as well as physical damage such as food contamination — and demanding payment in Bitcoin, according to a report by veteran security blogger Brian Krebs.
Source: www.welivesecurity.com
The pizza in the photo looks like it deserves a bad review, but setting that aside, here is yet another example of Yelp reviews being used as a form of extortion. Click on the photo to get the complete article.
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.
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.
