Monday, October 15, 2018

RipoffReport review isn't "advertising or promotion," without more evidence of reception

Wilson v. AdvisorLaw LLC, No. 17-cv-1525-MSK, 2018 WL 4932088 (D. Colo. Oct. 11, 2018)

Wilson and defendant Kennedy allegedly did business through corporate entities, Wilson Law Ltd. and AdvisorLaw LLC, respectively. The relationship ended badly, with Kennedy accusing Wilson, via email, of “competing with my business” and asserting that Wilson was using AdvisorLaw without authorization and to its detriment. The day of that last claim, a “Patrick Erickson” posted a negative review of Wilson Law on the website claiming that Wilson “lied to me with no reservations,” that Erickson had needed an experienced lawyer for FINRA and IRS issues from a divorce, and that Erickson paid over $15,000 before learning that Wilson lied about his expertise/progress; when confronted, Erickson said, Wilson told him “good luck getting any money back” and “I am very good at hiding from judgments and collections.”  Forensic evidence indicated that the review came from Kennedy’s home, though the parties dispute whether Kennedy or another person posted the review.

The court granted summary judgment to defendants on the Lanham Act claim and declined supplemental jurisdiction over the coordinate state law claims.  I was a little surprised that the court accepted the argument that a widely available post on the internet wasn’t “commercial advertising or promotion” because there wasn’t enough evidence that it was “sufficiently disseminated to the relevant purchasing public such that the industry would consider it advertising,” though perhaps the court would have reacted differently to a single, standard paid-for ad.  Still, to be actionable, the dissemination “must reach some significant number of actual or potential customers of the parties’ products.” Evidence of that dissemination didn’t come from the number of AdvisorLaw’s clients compared to those of Wilson, because the mere fact of defendants’ success didn’t show that the review was a causal factor.

Nor were general facts about helpful:

[T]he mere fact that is a heavily-trafficked site does not mean that the Review itself was broadly seen by the Plaintiffs’ potential customers. Just as opening a storefront on a busy street does not guarantee a steady flow of actual customer traffic, the fact that may attract millions of visitors does not guarantee that any of those millions of viewers went looking for reviews of the Plaintiffs’ services in particular, much less that such visitors saw the Review in question. And even if they did, the Plaintiffs offer no evidence to show that the visitors reading the review were otherwise potential customers of the Plaintiffs’ services, rather than, for example, disinterested internet scamps vicariously enjoying particularly scathing poison-pill notes.

Nor was Wilson’s own opinion that he had difficulty getting clients after the review was posted, absent facts indicating that this happened and that the review was the cause.  Nor was it helpful that internet searches using 12 different search terms (e.g. “wilson law, ltd.”; “mark h. wilson attorney”; “mark wilson finra”) routinely yielded a link to the review on the first page. That didn’t prove that the review was seen; even Wilson’s expert report didn’t provide evidence of how potential customers of the parties’ services typically investigated those services.  “It may be that the Plaintiffs’ potential client base consists of unsophisticated and credulous individuals who might be influenced by an anonymous internet review, or it might be that the client base consists of sophisticated businesspeople and investors who would likely ignore such scurrilous material, were they to even encounter it in the first place.” The expert could not estimate how many people likely read the review.

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