The Big Fish Always Get Away

The federal Communications Decency Act bans any lawsuits against websites and web service providers for publishing third-party content, including reviews, comments, thumbs-up / thumbs- down voting, and even for hosting lengthy, malicious blogs.  You can’t sue Yelp, Google, Angie’s List, RealSelf, HealthGrades, or any review website or website hosting service for libeling you by posting a bad review or hosting a blog that is critical of you. 

In California, the anti-SLAPP (strategic lawsuit against public participation) law also gives people and businesses sued for “discussing a matter of public interest” the right to recover their attorneys’ fees in some situations.  An example: this year, a California Court of Appeal decided the anti-SLAPP law required a dentist to pay $81,000 in attorneys’ fees to Yelp and a negative reviewer who accused the dentist of putting in a mercury filling.  The Court said this review was part of a discussion of “public interest” in the safety of mercury fillings. The dentist had already dismissed the lawsuit against Yelp, but this was of no help. Yelp was immune to suit for bad reviews under the Communications Decency Act, and the subject matter of the review entitled Yelp to recover all of its attorney’s fees under the anti-SLAPP law.   

Protected Opinion or Lawsuit-Worthy Falsehood?

The law does not permit you to sue someone for expressing an opinion that cannot be proved or disproved with facts.  If someone calls you a “creep” or “obnoxious” or says your “prices are too high,” this is opinion protected by the constitutional right to free speech, and you cannot sue for it.  On the other hand, you can sue if someone says, for example, that your restaurant is “filthy” and in fact you follow a careful, well-documented cleaning schedule and received an “A” grade for cleanliness in a recent unannounced state inspection.  A false statement of fact that is injurious to a business is not protected by the right to free speech.

Can You Find Out Who Wrote the Review?

Assuming the review contained a false statement of fact that injured your business, you face a final hurdle: finding out who actually wrote it.

Identifying an anonymous reviewer is complicated.  First, your attorneys must subpoena the review site, or their hosting company, to request the IP address of the viewer.  If the company has already deleted this information, your suit will effectively be over.

If you get the IP address, your attorneys must subpoena the internet service provider – the company that the reviewer used to go online – to request the name of the reviewer.  If the reviewer logged on using a public computer, such as one at a library, your suit will again be at a dead end. If the reviewer used a subscription ISP – an internet service provider such as Cox or Time Warner – the ISP will notify the subscriber of the subpoena, as required by federal law.

Whether you find out the reviewer’s identity or have to fight the ISP for it, the next courtroom battle is always the same in California: to go further, you must provide evidence of each element of your lawsuit – the statement, the evidence showing it was substantially false, and its harmful nature to your business. The court may then decide the review was constitutionally protected free speech, in which case, your lawsuit is over.  If the court allows your suit to proceed, you then face a long, costly, uphill court battle against the reviewer, who may not have any money to pay your lawsuit if you are finally successful.

When is it Worth Suing for a Bad Online Review?

The only situation where it is truly worthwhile to sue for a bad review is where someone has posted a very harmful series of factual reviews that are provably false and are likely to actually harm your business.  Courts are likely to be much more sympathetic if the reviewer turns out to be a competitor, an ex-employee, or someone else who set out to harm your business and did not care if the factual statements in their reviews were true or false. In this case, you can seek both a money award and a court order requiring the reviewer to request removal of the false reviews.  Although review websites are not required to remove false reviews, they are much more likely to be cooperative if you have a court order against the reviewer.

If you decide not to sue, you still have other options.  Among the best:  asking the review site to remove the review on whatever grounds that website allows, soliciting good opinions to “bury” bad ones, promptly responding to bad reviews in a gracious manner whenever a response is permitted, and offering fast solutions whenever the complaint is valid.  It can also help your business to maintain an informative, up-to-date website and a strong presence on social media websites, so that potential clients and customers have multiple ways they can learn all the good things about your business.

Call San Diego Law Firm for Help with All Business Concerns

If you have a business problem or dispute, including one that involves the internet, the experienced business lawyers at San Diego Law Firm have solutions that will save you time, money, and frustration.  In addition to our legal services, we can provide practical and sound management advice if your business is facing a crisis generated by events beyond your control.  Please call San Diego Law Firm at 619-794-0243 to make an appointment.  We look forward to helping you.

However, most consumers do not realize that retailers selling fake brand-name items are breaking state and federal laws against “trademark infringement.” A trademark is an identifiable characteristic, such as a word, phrase, a symbol, or even colors combined with a typeface, that helps consumers identify a product. If someone owns the rights to a trademark, they have the right to sue others who use an identical or very similar mark on the grounds of trademark infringement. Brands such as Tiffany & Co., Chanel, and Louis Vuitton have all brought trademark infringement suits, seeking money on the grounds that the sale of the counterfeit goods –often of poor quality – caused confusion among consumers and reduced the value of their trademarked brands.

In cases of counterfeit goods, like fake “Louis Vuitton” handbags, it seems obvious that the seller intended to copy the brand name. However, it is also possible for a person or business to unintentionally infringe on an existing trademark. Recently, a professional copywriter wrote an article explaining how, out of the blue, she received a letter demanding that she change her business name and take down her website because another person had registered the same business name as a trademark. On the advice of an attorney, she complied, because she otherwise could have been forced into a lawsuit and ordered to pay a large court award to the owner of the trademark. Not everyone is so lucky as to be given notice by letter; some people first find out that they are infringing on a trademark when they are served with a lawsuit, and they then end up paying a substantial settlement to resolve it.

Before you choose a name, a logo, a tagline, or even distinctive packaging or marketing materials for your product or services, it’s a good idea to consult with a skilled business attorney who has experience with trademarks. The business attorneys at San Diego Law Firm can research your proposed brand or branding materials and confirm that you will not be infringing on the trademark rights of any other business. They can also register your brand as a trademark for your business, which will both protect it from use by others, and give you a good legal defense if you are ever sued for trademark infringement. Please contact San Diego Law Firm today at (619) 794-0243 for an appointment.

The lawsuit itself is officially started by filing a “complaint” that’s prepared by the plaintiff’s attorney after investigating the facts and researching the law that applies to the case. The complaint will set out the legal grounds for the lawsuit against the defendant and make a request, such as for monetary compensation.  This document, together with a “summons” that orders the defendant to respond to the claim, will be delivered (“served”) to the person being sued. After being served, the defendant’s lawyer must act quickly and within the deadline to respond to the lawsuit and can take different actions depending on the situation.  For example, the defendant can file an answer to the complaint, object to the complaint because it doesn’t state a legal claim, raise defenses, and may even have his or her own claim against the plaintiff.  If so, the defendant’s attorney will file a counter-claim, called a “cross-complaint” in California state courts, to which the plaintiff will have to respond.  If there’s a legal basis for it, one party can also try to get a judgment on the case (or part of it) without a trial, or get the case dismissed. 

The attorneys will also begin “discovery,” which allows more investigation tools to be used so the parties can prepare or defend against the lawsuit.  A few of the most important ways to gather evidence during discovery include interrogatories (written questions prepared by the lawyer that have to be answered under oath), depositions (questions that will be answered orally under oath), and orders for the other party or subpoenaed third parties to produce documents and photos.  Throughout the process, lawyers will meet with the judge for conferences on the status of the lawsuit.  Before the trial is set, the question will come up on whether there will be a jury trial or a bench trial (where a judge will decide your case).  Depending on the lawsuit, you may have a right to a jury as long as a request for a jury is made within the time required, but sometimes the parties may want to waive this right and have the case tried by a judge.  If not, then a jury will be selected.  Then, attorneys for both parties will go through all the typical steps in a trial, i.e. opening statements, examining and cross-examining witnesses and experts, and presenting closing arguments.  During the trial, either side may continue to try to cut the trial short and get a judgment in its favor.  If the trial continues, lawyers will prepare jury instructions for the court’s approval.  Jury instructions explain the laws that jury members must apply to the case (in other words, the specific things that must have been proven), and the judge will read approved instructions to the jury.  After jury deliberations, or after the judge has reached a decision in a bench trial, the verdict will be read.  A party might decide to challenge the judgment with a post trial motion, or by filing an appeal. 

While it’s easy to focus on what lawyers do during a lawsuit, we’ll also advise you on what you can do from the start to help improve your chances of winning.  For instance, it’s key that you tell us not only everything that can help your case, but also anything that has the potential to hurt it.  Also, be careful to provide complete and accurate answers to interrogatories and during depositions, because dishonest answers are usually caught later and can significantly damage your case.  Your credibility and truthfulness will influence the judge or jury’s decision as they weigh the evidence in your case.  In doing our part to maximize the likelihood of success, we’ll identify your goals with you, thoroughly investigate your case, and persuasively negotiate with the other side.  Although we’ll strive for settlement from the outset, we’re fully prepared to litigate your case in court.  If you’re faced with a legal dispute, act quickly so that you don’t lose your right to sue or defend a case because you’ve waited too long.  Reach San Diego Law Firm’s experienced trial lawyers at (619) 794-0243.

The San Diego UT further reports that Encinitas spent $5.2 million on the project. Now the city is dealing with the additional costs of litigating the case, and if it turns out the improvements were not ADA compliant, then Encinitas may end up spending more money on changes that could have been incorporated into the initial upgrades. At least according to Sharp, “Somebody was not doing their homework when they did this.”If your business is facing a possible lawsuit, contact our experienced attorneys as early as possible and we’ll assess your business’s compliance with the ADA and California disability laws while working to get the case resolved. You can also help prevent lawsuits by getting advice before making renovations or constructing new facilities, and learn how your existing facilities can be made ADA compliant without burdening your business too much. If your business is sued, taking the right steps now can provide valuable proof that you’ve taken the appropriate measures to comply with disability laws. Contact San Diego Law Firm’s skilled attorneys at (619) 794-0243.

On that front, a recent blog from The Business Insider notes that the SEC has decided to recommend that Angelo Mozilo, who co-founded home-mortgage lender Countrywide Financial, be charged with civil fraud. Unfortunately, the internet frontier is no different. A Reuter’s article posted by PCMag discusses the “surge” in internet fraud during the recession last year, reporting that losses due to fraud set a record at $264.6 million in the United States. As can be seen, business people and consumers are forced to deal with fraud all too often, and in tough economic times the experience is even more troublesome. San Diego Law Firm has years of experience in handling cases involving fraud, such as securities fraud, business or real estate misrepresentation and fraud, as well as other business disputes. To get help in resolving stressful situations such as these, contact us at San Diego Law Firm, (619) 794-0243.