Seattle Trademark Lawyer

New York reportedly is cracking down on fake online reviews.

It’s about time. Others should follow suit.

Let’s say you’re an honest business owner, but your biggest competitor is not. It writes negative reviews about your company and glowing reviews about itself. And it pays others to do the same. Now anyone who visits Yelp or Amazon or eBay thinks your business is terrible and your competitor’s is great. That puts you at a massive disadvantage.

It’s totally unfair. In fact, the law has a name for it: unfair competition. Fake reviews also constitute false advertising, another form of unfair competition. Yet, by many accounts, it is common.

Washington’s anti-SLAPP statute makes fighting back even more difficult. Our statute aimed at punishing Strategic Lawsuits Against Public Participation is supposed to protect the exercise of our First Amendment rights, such as the right to exercise one’s freedom of speech. Unfortunately, it can be applied not only against plaintiffs who sue newspapers or politicians for defamation. It threatens to stop legitimate lawsuits about unfair competition.

The statute, RCW 4.24.525, says if a defendant can show it was sued because of its “public participation and petition,” the plaintiff must show by “clear and convincing evidence” that will win its claim. If it cannot do so, the case will be dismissed, the defendant wins its attorney’s fees, and the court awards it $10k to boot as punishment for the plaintiff’s having tried to stifle the defendant’s constitutionally-protected activity. This all happens within 60 days after the plaintiff filed suit — long before any discovery has changed hands.

How much chance does this give the honest business owner who sues over fake reviews? Not much, and it’s not fair.

It doesn’t take much imagination to envision the honest business owner rightfully suing over the damage it has sustained because of a dishonest competitor’s fake reviews. The dishonest competitor says it’s all sour grapes and speculation, and the plaintiff is just trying to silence free speech. Without the benefit of any discovery, the honest business owner has a real uphill battle at the outset of its case to show not only that it will likely win — but that it can do so with “clear and convincing evidence,” a much more difficult showing than the 50.1% “preponderance of the evidence” standard. The dishonest business owner ends up being the anti-SLAPP statute’s biggest fan.

The honest business owner needs help. Either the legislature needs to carve out a large enough exception from the anti-SLAPP statute to avoid perverse results, or government regulators need to do what New York did and go after those who traffic in fake reviews. 

The consuming public and the honest business owner alike depend on reviews being legitimate. Neither can afford to let dishonest businesses continue to benefit from fake reviews.

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.).