Friday, December 21, 2018

Avvo's Pro designation is opinion/puffery

Davis v. Avvo, Inc., --- F.Supp.3d ----, 2018 WL 6629269 (S.D.N.Y. Dec. 19, 2018)

Davis, an attorney, sued Avvo for false advertising in violation of the Lanham Act and NYGBL § 349. Avvo hosts profiles of attorneys for consumers to use; the profiles often contain client and peer reviews, as well as a numerical “Avvo rating,” which is derived by criteria defined by Avvo. Avvo includes profiles for attorneys who pay for advertising and related services and attorneys who do not. Davis alleged that lawyers who pay Avvo (1) receive higher Avvo ratings than similarly qualified nonpaying attorneys, although the defendant represents its ratings as objectively calculated; (2) receive a badge reading “Pro” laid on top of the profile headshot; (3) are touted in Avvo’s advertising as “highly qualified,” “the right,” or the “best” attorneys; and (4) have positive client reviews spotlighted and negative client reviews removed or blocked.  [For the last, Eric Goldman will almost certainly disagree but I think that a bar could reasonably determine that attorneys shouldn’t pursue partnerships with entities that cook the books in the manner alleged.]

The court dismissed the claim; the challenged practices/statements were nonactionable opinion and puffery. Quoting McCarthy: “Under both the Lanham Act and the Constitutional free speech clause, statements of opinion about commercial matters cannot constitute false advertising ....” Also true of GBL §349.

First, the court ruled that the allegedly misleading features of the defendant’s website, including its Avvo ratings, weren’t commercial speech because Avvo’s consumer-facing side was

an informational directory of attorneys, which consumers can consult whether or not they intend to hire an attorney. And the complained-of website features simply provide information; they might be considered in making, but do not themselves propose, a commercial transaction. Moreover, that sponsored advertisements appear on the defendant’s website does not morph the website’s noncommercial features into commercial speech.

So that put the profiles outside of the Lanham Act anyway.

Second, these were statements of opinion, incapable of being proven false and thus constitutionally protected:

The defendant’s rating system is inherently subjective. The defendant chooses the inputs for its system and decides how to weigh them. … A reasonable consumer would view an Avvo rating as just that – the defendant’s evaluation. What factors the defendant believes to be important in assessing attorneys, and the result of the defendant’s weighing of those factors, cannot be proven false.

Third, the “Pro” badge appearing on the profile pictures of attorneys who pay Avvo is intended to convey a statement of fact: that an attorney has verified the attorney’s information as it appears on Avvo. Avvo’s website explains this meaning with an “i” icon next to the “Pro” badge. Hovering over the “I” discloses that “Attorneys that are labeled PRO have verified their information as it appears on Avvo,” and the website eventually explains the “Avvo Pro” subscription plan if you follow enough links elsewhere. Thus, the statement wasn’t false. Davis alleged that it was still misleading because it implied higher quality, and the disclosures weren’t sufficiently conspicuous to avoid that implication.  The court agreed with Avvo what this was puffery. “Pro” means, literally, a professional; that was true [though why that’s relevant to misleadingness, especially when others in the profession were not granted the dignity of that characterization if they didn’t pay, is unclear]. To the extent that consumers perceived it as “conveying that an attorney is especially experienced or skilled, the term is mere puffery.” Davis couldn’t prove that lawyers marked “Pro” were undeserving, “because in context the term has no definite meaning or defining factors.” Allegations about advertising “highly qualified,” “the right,” or the “best” attorneys failed for the same reasons, as did allegations that paying lawyers got enhanced visibility on the website.

Fourth, the court determined that spotlighting positive client reviews while removing or refusing to post negative client reviews in the profiles of attorneys who pay for the defendant’s services wasn’t false advertising. Initially, the website stated that Avvo could withhold reviews that didn’t meet its guidelines, and that negative reviews could be put through a dispute process at a lawyer’s request. “Consumers are therefore on notice that every client review might not be posted in an attorney’s profile.” [That’s really not the same thing as distorted selectivity, though—neither of those policies discloses discrimination in favor of paying lawyers.]  Anyway, “a collection of client reviews reflects subjective judgments. A reasonable reader would understand that each review is merely an opinion.” Thus, the absence of some reviews didn’t render the remainder misleading. [That doesn’t make a lot of sense to me. The overall ecosystem can be misleading even if each input is subjective, especially where the ecosystem is run by someone who purports to be independent.  Under the court’s reasoning, it wouldn’t be false advertising for a food producer to claim to “win” a taste test—taste being classically subjective—by removing the tasters who rated the product poorly and not disclosing that. The concern about deterring individual reviews, or even collections of reviews, is a real one, but so is the concern about undisclosed bias driven by payment from the reviewed.]  

Further, “spotlighting positive reviews is not false advertising. Not only are the positive reviews opinions, but simply indicating that a particular consumer was satisfied with a service plainly does not constitute a false or misleading statement.”  [Consider the FTC’s Testimonial Guidelines. Under what circumstances might a positive review imply that others can expect the same results? Or are the Guidelines also unconstitutional in this view?]

Finally, Davis did not sufficiently allege injury by offering facts that demonstrate a causal connection between his injury some misrepresentation made by Avvo. Conclusorily alleging lost fees and reputational damages, and diverted business, was insufficient absent facts indicating that consumers on the allegedly misleading Avvo ratings, pro badges, client reviews, or other statements “in choosing or gauging the reputation of an attorney.” “The only fact the plaintiff pleaded to support his theory of harm is that the defendant’s website holds a prominent presence on the internet, and thus consumers who perform a Google search with phrases like ‘top litigation attorney’ will see the website on the first page of results.” That wasn’t enough.

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