Monday, October 28, 2019

law firm blog about somebody else's case isn't commercial speech

Wexler v. Dorsey & Whitney, LLP, --- F.Supp.3d ----, 2019 WL 5485265, No. 18-CV-3066-SJB (E.D.N.Y. Oct. 25, 2019)

Wexler, a lawyer proceeding pro se, sued Dorsey (a law firm that does defendant-side Telephone & Consumer Protection Act work) and a former employee, Betpera, for a blog post on Dorsey’s blog about consumer financial services law.  The blog post discussed a putative class action Wexler filed as counsel in the Eastern District of New York under the TCPA against AT&T. In that case, a judge found the putative class representative to be inadequate as a matter of law because she was Wexler’s wife; for the case to proceed as a putative class action, Wexler would have to withdraw as counsel and renounce any interest in a future fee award.  Wexler v. AT&T Corp., 323 F.R.D. 128, 129 (E.D.N.Y. 2018). (Wexler was joined by co-counsel after the suit was filed.) Although Wexler was willing to do that, he wanted the ability to seek fees for work up to that point based on quantum meruit. The court thought that was still a conflict because that would come out of class recovery, and therefore struck the class allegations.

Dorsey’s blog claims that “Dorsey’s attorneys have handled dozens of nationwide TCPA class actions. They know the tricks used by class action lawyers and how best to thwart them at the outset.”  After the opinion issued, Dorsey published a “Legal Update” by Betpera, headlined “TCPA Class Certification Denial Exposes Major Spousal Scheme.” After discussing Betpera’s own hobbies with his wife, then summarizing the case, it concluded, “Maybe the Wexlers should try salsa dancing instead.” A different website linked to the blog post with the title “Husband Lawyer Tried Using His Spouse as Class Representative in TCPA Case,” and offered, “Having read [the Dorsey article], my only question is, for how long did they think they could get away with it?”

Defamation: “Major Spousal Scheme” can’t be defamatory; it’s just opinion, especially in context.  “Scheme” doesn’t necessarily mean deception or impropriety, even with “expos[ure]” also in the headline. Overall, “major spousal scheme” “is not capable of precise and specific meaning.” A law blog is like an editorial or op-ed page, and thus the context “encourag[es] a freewheeling, anything-goes writing style” “characteristic of opinion writing, not factual recitation.” Given that the post “begins and ends with the author’s tongue-and-cheek musings about how he would like to spend time with his wife (camping and going to Greece) and what the Wexlers should do (try salsa dancing) …. [N]o one could reasonably read the article and its headline as anything other than the author’s opinion and editorial gloss on a court decision.” Nor did the headline or article imply the existence of undisclosed facts.

Lanham Act false advertising: the blog was not “commercial advertising or promotion.”  The post was on a website titled “Consumer Financial Services Legal Update,” “with a web address different than Dorsey’s firm website.” It was attributed to Dorsey and used Dorsey’s logo, but the post’s content didn’t relate to Dorsey and didn’t mention by name or implication any services Dorsey provides. Dorsey wasn’t involved in the underlying case, which did not mention Dorsey. “While Dorsey’s motivation in having a blog, and publishing this particular article, may be to attract new clients, such motivation does not transform the article—describing a court’s decision in a case unrelated to Dorsey—into commercial speech.”

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