Seattle Trademark Lawyer

Another special motion to strike granted against a plaintiff claiming false advertising, deceptive practices, or commercial defamation. This is threatening to become a trend. (See STL’s posts here and here about similar outcomes in two other cases.)

No question about it — those who practice in the trademark or false advertising space need to pay attention to the recent expansion of Washington’s anti-SLAPP statute aimed at protecting against Strategic Lawsuits Against Public Participation, codified at RCW 4.25.525.

Last week, Western District Judge Ricardo Martinez granted the attorney rating company Avvo, Inc.’s special motion to strike false advertising and deceptive practice claims that Florida health lawyer Larry Joe Davis, Jr., brought after receiving a call from a prospective client who told him he was the “lowest rated employment lawyer” on Avvo, so she assumed he would be “desperate for employment.” Mr. Davis told the caller he was a health lawyer — not an employment lawyer — and declined to undertake the representation. After the call, Mr. Davis saw that Avvo’s Web site depicted his practice area as “100% employment/labor law.”

Mr. Davis sued Avvo in Florida state court; Avvo removed the case to the Middle District of Florida; and Avvo succeeded in getting it transferred to the Western District of Washington. After amending his complaint three times, Mr. Davis stated three causes of action under Florida law relating to the alleged misrepresentations, which the Western District construed as asserting similar claims under Washington law.

In response to Avvo’s special motion to strike that the anti-SLAPP statute authorizes, Mr. Davis specified that Avvo intentionally misrepresented his practice area to induce him to register on the Web site to correct the misrepresentation, and that Avvo induces lawyers to purchase a “Pro” membership in order to prevent competitor’s ads from appearing on their profile pages.

The court rejected his claims, finding they lacked “clear and convincing” evidence the statute required after Avvo established the claims were based on an action involving public participation or petition in an issue of public concern.

“Plaintiff has presented no evidence, let alone clear and convincing evidence, to demonstrate that there is any probability of prevailing on his [Washington Consumer Protection Act] claim,” the court found. “He points to no evidence in the record to support the conclusory allegations regarding Avvo’s advertisements. Indeed, he has provided no evidence at all; he has merely ‘verified’ the allegations set forth in his Third Amended Complaint. A complaint is not evidence. … Instead of presenting an affidavit, plaintiff asserts in his response that ‘[i]f one were to search on Avvo for a particular well-known lawyer, such as a well-known Board Certified Health Lawyer, when one is directed to that lawyer’s page, one would likely see an advertisement for a competing lawyer, as Plaintiff did in August 2010, which competing lawyer has paid Avvo to have that ad placed on the listed lawyer’s page.’ These speculations as to what ‘one would likely see,’ are not evidence. Nor has plaintiff alleged how this allegedly deceptive act of Avvo induced him to act or refrain from acting in some special manner, so as to establish causation for his loss.”

Based on that finding, the court granted Avvo’s motion, dismissed Mr. Davis’ claims, imposed the statutory $10,000 penalty, and stated it would award Avvo’s reasonable attorney’s fees.

GeekWire discussion of the decision here.

The case cite is Davis v. Avvo, Inc., No. 11-1571 (W.D. Wash. March 28, 2012) (Martinez, J.).