Friday, January 25, 2013

False claims to have taken class and disliked it not defamatory

Robin Singh Educational Services, Inc. v. Blueprint Test Preparation, Llc, 2013 WL 240273 (Cal. App. 2 Dist.)

Plaintiff TestMasters sued Blueprint and a number of principals, who used to be TestMasters employees, for breach of duty and related shenanigans.  Defendants committed really extensive discovery violations, for which they were sanctioned, and lost on a number of claims at trial, though the sanction award substantially exceeded the damages awarded by the jury. I’m only going to discuss the defamation claims, though the breach of duty etc. claims make juicy reading.

The jury found that two individual defendants, Triplett and Riley, along with Blueprint (the business) defamed TestMasters on pre-law/law school discussion sites.  The court found that there wasn’t substantial evidence to support the jury’s defamation verdict: although defendants lied about having taken TestMasters’ classes, the nasty things they said based on those lies weren’t themselves defamatory. 

The claim against Triplett was based on a statement that she posted, pretending to be a student who’d taken a TestMasters class the previous summer:

Be careful if taking TM. I took it last summer at UCLA and my instructor was awful, really boring and thick accent.   Actually answered questions wrong in class and would try to talk his way out of it.   Trent was teaching next door and he sounded awesome, his class looked much better but theywouldn't let me switch, said it was full.   I heard there are a couple other good instructors but i forgot their names.   Probably taking the class over so Im gonna try to get in trents this time.

Triplett testified that, though she didn’t take the class, she sat in on a class from an instructor who spoke with such a “very thick southern accent” that “it was difficult at times to hear what he was saying.”   Triplett stated that Harrison incorrectly diagrammed a problem on the board, and then “instead of sort of stepping back he actually tried to explain why that was the correct way to diagram it.”

Riley made a post in response to a student who had taken a TestMasters class from Teti (one of the perfidious defendants) and felt that Teti was “a f-ing jackingass” and “arrogant.”   Riley, pretending also to be a student who took a TestMasters class from Teti, wrote:

Wow mimi323.   I was in a TM UCLA class close to that time with Trent (I took him for the December test) and all I can say is that there's no accounting for taste. No offense, and I'm sorry you got that vibe, but I had a really different experience.

First off, my original teacher (whose name I wish I knew but blocked out) was terrible- and a lot of people thought he was just boring and shitty.

… [M]y class sucked so I basically brided/bullied TM office people to transfer me into his class.

[more praise of Teti]

… And judging from the fact that his class had more than 100 people in it for the last lesson when my original class had dwindled to about 10 people by that point, I'm not alone.

Riley testified that he did not have an original TestMasters class that “sucked” and was “boring and bad,” and that his post actually referred to an experience that two of his friends at the time (whose last names he could not remember) told him they had in a TestMasters class at UCLA. Riley stated that the post was “a true experience of a lot of TestMasters students at that time period,” but not for him.   His statements about switching classes, and the related claim that he raised his LSAT score 20 points, were also false.

TestMasters argued that Triplett’s false “first-hand” account of her instructor’s competence and TestMasters’ unwillingness to let her switch into Teti’s class were provably false, as were Riley’s statements that his original class dwindled to about 10 people.  This wasn’t support for the jury’s verdict. 

Whether a statement contains or implies a provably false factual claim is a question of law, unless the statement could be interpreted either innocently or libelously; that exception didn’t apply here.  In the context of a discussion board, statements that TestMasters instructors were “awful,” “really boring,” “terrible,” “boring,” “shitty,” and “bad,” and they “sucked” couldn’t be statements of fact or imply provably false assertions of fact.  They were classic statements of opinion that couldn’t be proven true or false.  The accusations of incompetence weren’t made by experts with special skill or knowledge, whose statements might seem more factual.  Since the comments were anonymous, readers wouldn’t know about Triplett’s experience with LSAT instruction.  And anyway, determining whether a teacher is boring doesn’t usually require expertise.

Some of the statements were or implied provably false assertions of fact: that a TestMasters instructor answered questions incorrectly in class and tried to talk his way out of it; that TestMasters refused to allow Triplett to transfer classes; and that Riley’s class shrunk in size over time from 100 to 10 students because it was so bad that 90 percent of the students left.  But TestMasters didn’t introduce evidence that these statements were false, as it had to do given that LSAT prep is a matter of public concern.  TestMasters didn’t point to record evidence that the teacher didn’t teach incorrectly, or that it did allow transfers.  (This last bit seems wrong: Triplett said she wasn’t allowed to transfer, and this was false because she wasn’t in the class.  It seems to me that all that’s needed to show falsity is that she wasn’t in the class and thus couldn’t have been refused a transfer.)  Nor did TestMasters introduce evidence that its class didn’t dwindle, and Riley testified that he was taking the experience of “a lot of TestMasters students” as his own.  Counsel asked Riley, “So that's false then where you said that you had a [Testmasters] class that sucked, right?”   He said, “right,” but then explained in the rest of his answer that the statement about the class was true, and the only part that was not true was that he had taken the class.  

The court noted that “the statements by Triplett and Riley that they were TestMasters students were very provably and indeed admittedly false assertions of fact, but they are not defamatory.”  Thus, the awards on the defamation claims were struck.  (At the very least, a false advertising claim would proceed differently in that the defendants clearly made false establishment claims—their substantiation, that they had actually taken the classes, was admittedly false.)

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