Plaintiffs (a Connecticut lawyer and his firm) sued Adams
and his firm, both located in California.
In 2012, Adams emailed Shehu, LLC and two employees of the Connecticut
Bar Association, stating that the plaintiffs “commented on an article with a
mass produced, mechanically generated, irrelevant comment,” “spammed [his] site
with the message,” and “used a dishonest ruse.” The email claimed that the
plaintiffs engaged in unethical conduct and violated the ABA rules of
professional responsibility. Shehu
responded and Adams reiterated his allegations, with the subject line, “Your
Spam is a professional ethics violation.” A third email to the bar employees
pointed to comments in his previous emails and stated that he had “no evidence”
that Mr. Shehu or anyone at the Shehu law firm “had personal knowledge of the
comments.”
Plaintiffs alleged that the emails were libelous per se and
constituted unfair trade practices; this opinion only dealt with the claims
under the Connecticut Unfair Trade Practices Act. Defendants challenged, essentially, standing.
A CUTPA claim is available to [a]ny person who suffers any ascertainable loss
of money or property, real or personal, as a result of the use or employment of
a [prohibited] method, act or practice.” As a remedial statute, the law is construed
broadly. The state supreme court has held that “CUTPA is not limited to
conduct involving consumer injury and ... a competitor or other business person
can maintain a CUTPA cause of action without showing consumer injury.”
Nonetheless, a plaintiff “must have at least some business
relationship with the defendant in order to state a cause of action under
CUTPA.” CUTPA was designed to protect two sets of people: consumers (from unfair
or deceptive acts or practices) and other business people (from unfair
competition), but “at the very least, other business people, who are not direct
competitors, must have some type of commercial relationship with the alleged
wrongdoer—commercial relationship not being so much a business relationship but
some kind of relationship in the marketplace so that the particular acts of
wrongdoing alleged will interfere with fair and open competition in that
particular marketplace.”
Here, plaintiffs alleged that they were both attorneys, both
engaged in internet marking efforts, and both use blogs to share
information. The cases require a “nexus”
between the parties’ relationship and “an ascertainable loss caused by the
defendant’s unfair or deceptive practices.” Here, the parties’ relationship
wasn’t competitive in any ordinary sense, nor was it direct or “in a commercial
marketplace.” Before the incident that sparked this conflict, the parties most
likely didn’t know of the other’s existence.
It wasn’t enough that both practice law and use the internet to
market/blog. Adams was licensed
exclusively in California and Shehu exclusively in Connecticut.
Even if Shehu’s conduct, as alleged, “diminish[es] the
number of websites competing for keywords desirable to the [d]efendants” such
that it would result in less competition for the defendants’ websites “to
appear at the top of search engine results for those desirable keywords,” that
was still insufficient. (I don’t even
understand this allegation.) The court
noted that potential clients wouldn’t necessarily pick the first firm listed,
and any decision they’d make between the parties would be more likely based on
the location in which they desired to have the services performed. This alleged commercial relationship was too
tenuous to conclude that the “particular acts of wrongdoing alleged will
interfere with fair and open competition in that particular marketplace.” Thus,
the case was distinguishable from one in which an attorney who once worked for
the defendants alleged that they made false statements that harmed her
reputation; there, the parties were licensed to practice in the same state.
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