Yelp Appeals Order to Remove Defamatory Material to California Supreme Court

A California personal injury lawyer was unhappy with a review posted by his former client on Yelp.  The lawyer attempted to contact the client about it, but she refused to return his calls.  The lawyer thereafter sued the client in April 2013 for defamation and other causes of action, sought damages and injunctive relief.  The client failed to respond to the lawsuit and a judgment was entered against the client for $558,000.

A “ ‘ “default judgment conclusively establishes, between the parties so far as subsequent proceedings on a different cause of action are concerned, the truth of all material allegations contained in the complaint in the first action, and every fact necessary to uphold the default judgment.” ’ [Citations.]” (Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149.)

The court also ordered Yelp, although not a party in the underlying lawsuit, to take down the offending review.  Yelp refused and brought a motion to vacate the judgment (not sure why it didn’t limit the motion to vacating the removal request only).  The court denied the motion and Yelp appealed.  On June 7, 2016, the appellate court in large part* upheld the lower court’s order and addressed Yelp’s assertions of free speech rights, etc. and why they do not apply to defamatory statements and provided legal support for enjoining non-parties.  Opinion here.  Yelp has appealed to the California Supreme Court which has elected to hear the case in the coming months.  Should be an interesting one.

*  The appellate court “remanded to the trial court with the direction to narrow the terms of the removal order in the January 2014 judgment by limiting it to the specific defamatory statements that were listed on exhibit A of that judgment.”

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Amazon Sues 1,114 Unknown Defendants For Fake Product Reviews

Ever wonder whether the reviews that you read about a product come from real customers or whether they are conjured up to create a fake image of the product’s performance and customer satisfaction?  Amazon is concerned too and it is suing currently up to 1,114 “Does” (currently unknown defendants) seeking to uncover in discovery those who offer fake reviews for sale.  As the allegations in the complaint set forth, one such reviewer promised an “awesome review” revealing her “secret” by asking the manufacturer “you have to provide me the review text.” Another asks for an empty mailed envelope as “proof” the product was sent to her for review.  At least Amazon is policing.

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Photographer Sues Twitter for Wrongful Dissemination of Her Photograph

On July 27, 2015, lawyers for Kristin Pierson filed suit against Twitter, Inc. for copyright infringement in the U.S. District Court, Central District of California.  In the Complaint, Ms. Pierson alleges that she is the holder, since 2012, of registered copyright in certain photographic images.  According to the allegations, “Pierson is an award-winning photographer who specializes in event and live-music photography.  She owns all rights to an image of guitarist Herman Li of the band Dragonforce displayed without her permission on Twitter (the ‘Infringing Image’).”  The Complaint further alleges that: “A Twitter user or users copied the Infringing Image without license or permission from Pierson and on information and belief sent one or more Tweets publicizing and linking to it (the “Infringing Uses”). The Infringing Uses were hosted either on Twitter or on third-party servers.”

The Digital Millennium Copyright Act (“DMCA”) allows an internet service provider safe harbor from infringement liability provided that “the service provider responds expeditiously to remove, or disable access to, the infringing material once notified of the claimed infringement.”  17 U.S.C. section 512(c).  Pierson alleges that she complied with the notice provisions of the DMCA by sending notice of the infringing photos on March 4, 2014 to Twitter’s agent for service, but that “Twitter failed to expeditiously disable access to or remove the Infringing Uses.”  Pierson seeks an injunction ordering Twitter to take down the infringing photographs and destroy them and seeks actual and enhanced statutory damages, costs and attorneys’ fees.  It will be interesting to see, if it comes to light, what sort of investigation Twitter did upon receiving notice.

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LinkedIn Sued for Allegedly Ruining Employment Opportunities – Case Thrown Out . . . For Now

According to their class action complaint filed in the U.S. District Court, Northern District of California, plaintiffs Tracee Sweet, Lisa Jaramillo, James Ralston and Tiffany Thomas allege that LinkedIn provided access to information about them including identities of their former employers which undermined their job prospects with prospective employers who had connected with them and thus violated the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., (“FCRA”).

The complaint alleged that the prospective employer had used the Reference Searches function on LinkedIn, which requires a subscription fee and which allows employers to find people with whom an applicant may have worked in the past.  According to plaintiffs, this search engine allows employers to “[g]et the real story on any candidate” and to “[f]ind references who can give real, honest feedback” about job candidates.  The Reference Searches feature produces two types of information: (1) the name and list of the search target’s current and former employers; and (2) a list of other LinkedIn members who are in the same professional network of the search initiator and “who may have worked at the same company during the same time period as the search target.”  The feature then produces results, which include for each possible reference, “the name of the employer in common between the reference and the job applicant, and the reference’s position and years employed at that common employer.”  The candidate being searched is not notified of the inquiry or of the search results.

Also according to the allegations of the complaint: “Though LinkedIn aggregates a significant amount of consumer information, LinkedIn represents to its members that it does not license or sell member content to third-parties to show to anyone else without the express permission of the particular member.”

In response, LinkedIn sought to have the lawsuit thrown out because the LinkedIn is not bound by the FCRA because it is not a credit reporting agency, it does not issue consumer reports, nor does it fall into any exception provided by the law.  The court agreed with LinkedIn and dismissed the complaint with leave to amend.  The decision can be found here.

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Michigan Prosecutor Goes Off On Facebook Rant Saying “Shoot ‘Em,” Then Resigns

According to Daily KOS, after watching images of protesters and rioters in Baltimore following the homicide of Freddie Gray, Teana Walsh, an assistant Wayne County, Michigan prosecutor posted this on her Facebook page:

“So I am watching the news in Baltimore and see large swarms of people throwing bricks, etc at police who are fleeing from their assaults … 15 in the hospital already. Solution. Simple. Shoot em. Period. End of discussion. I don’t care what causes the protestors to turn violent…what the ‘they did it because’ reason is…no way is this acceptable. Flipping disgusting.”

She subsequently removed the posting, but not before screenshots were taken and the incident was publicized. The Daily KOS article is posted here.

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Brew HaHa Over IPA Trademark Results in Social Media Backlash and Withdrawal of Lawsuit

On January 14, 2015, Lagunitas Brewing Company, a Petaluma, California craft brewer, filed a lawsuit in federal court for trademark infringement and unfair competition against competitor and Northern California neighbor, Sierra Nevada Brewing Company, Chico, California.  In the lawsuit papers, Lagunitas alleged that its particular type-styled “IPA” mark was being infringed by the label and packaging of Sierra Nevada’s product, Hop Hunter IPA. (Among the lawyers who filed suit, one is listed as “Shady.”)

Lagunitas, however, had apparently underestimated the immediate and negative reaction to the lawsuit in the beer community.  Social media exploded with criticism of Lagunitas over the row with threats to stop buying the brand and Lagunitas was reminded to stick to making beer.

On the same day, the company’s founder tweeted: “Today was in the hands of the ultimate court; The Court of Public Opinion and in it I got an answer to my Question. Our IPA’s TM has limits.” “Today I was seriously schooled & I heard you well…” “Tomorrow mornin we’ll Drop the Infringement Suit & get back to answering other Questions.”

The Streisand affect strikes again.

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Facebook Exchange Advocating Employee Insubordination Was Not Protected Activity

The Richmond District Neighborhood Center (“Richmond”) is a non-profit corporation that operates the Beacon Teen Center at San Francisco’s George Washington High School, which provides after-school activities to students.  For the 2011–2012 school year, Ian Callaghan was one of the Beacon’s activity leaders, and Kenya Moore occupied the program leader position, which included data-entry, record keeping, and oversight duties.  Before the 2012–2013 school year began, Richmond sent rehire letters to both Callaghan and Moore, but it offered Moore a demotion to activity leader because her summer supervisor rated her performance negatively.

On the evening of August 2, 2012, Callaghan and Moore (with a former student chiming in) engaged in an exchange on Callaghan’s Facebook page.  The exchange included the advocation of breaking a number of school policies and rules.  It included refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering shit, having crazy events at the Beacon all the time. I don’t want to ask permission . . .”; “Let’s do some cool shit, and let them figure out the money”; “field trips all the time to wherever the fuck we want!”), disregarding specific school-district rules (“play music loud”; “teach the kids how to graffiti up the walls . . .”), undermining leadership (“we’ll take advantage”; “I would hate to be the person takin your old job”), neglecting their duties (“I AINT GOBE NEVER BE THERE”), and jeopardizing the future of the Beacon (“they start loosn kids i aint helpn”; “Let’s fuck it up”).

The next day, a Beacon employee sent screenshots of the conversation to management.  On August 13, 2012, Richmond sent Callaghan and Moore letters rescinding their rehire offers, citing concerns based on their Facebook conversation that the employees would not follow directions of their manager and could endanger the youth.

An action by the National Labor Relations Board soon followed.  The Regional Director for Region 20 of the  NLRB filed suit challenging the recision.  The suit alleged that Richmond had violated Section 8(a)(1) of the National Labor Relations Act, which provides that an employer may not discipline or otherwise threaten, restrain, or coerce employees because they engage in protected concerted activities.

After briefing and hearing on the matter, on November 5, 2013, an administrative law judge for the NLRB found that while the Facebook conversation was concerted activity, it fell outside of the Act’s protection due to its content.  Richmond Dist. Neighborhood Ctr., NLRB ALJ, No. 20-CA-91748, 11/5/13.

On October 28, 2014, a three judge panel of the NLRB agreed.  Specifically, the Board focused on the fact that the Facebook exchange was “comprised of numerous detailed descriptions of specific insubordinate acts, constituted conduct objectively so egregious as to lose the Act’s protection and render Callaghan and Moore unfit for further service.”  The Board reasoned: “The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.”  The decision can be found here.  Richmond Dist. Neighborhood Ctr., 361 N.L.R.B. No. 74, 10/28/14.

Social media is so easy to use that the consequences of use are often not adequately considered.  Consider – bite.

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Sign Here For Your Room and, As Our Agreement States, If You Rate Us Poorly, You’ll Be Punished

As the nation’s first its kind, on September 9, 2014, California passed AB 2365, a law that now prohibits businesses from including provisions in contracts in which a consumer will waive his or her “right to make any statement regarding the seller or lessor or its employees or agents, or concerning the goods or services.”  A business that does so will be fined $2,500 for a first-time violation, $5,000 for any subsequent violation(s), and potentially $10,000 for “willful, intentional, or reckless violations.”

Perhaps other states including New York and Utah will follow.  For example, Union Street Guest House of Hudson, N.Y. had enacted a policy allowing the establishment to deduct $500 from guests’ deposits for each negative review placed online.

Specifically, its website read, in relevant parts:

“If you have booked the Inn for a wedding or other type of event anywhere in the region and given us a deposit of any kind for guests to stay at USGH there will be a $500 fine that will be deducted from your deposit for every negative review of USGH placed on any internet site by anyone in your party and/or attending your wedding or event (emphasis added). If you stay here to attend a wedding anywhere in the area and leave us a negative review on any internet site you agree to a $500 fine for each negative review.”

Union Street subsequently received a flood of negative reviews about this policy and removed it.

California’s new law was inspired by the experience of a Utah couple that posted a negative review about their purchase from KlearGear, a French on-line retailer, but did not pay the $3,500 “Non-disparagement Fee” that was included in the transaction language and demanded by KlearGear.  KlearGear responded by turning over the debt to a collection agency which reported the couple’s failure to pay to credit bureaus, damaging their credit score.  Ultimately, KlearGear was sued in a federal court in Utah and the couple was awarded a default judgment of $306,750 in compensatory and punitive damages plus attorneys’ fees.

Ah, the fine print.

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Employer Violated Rights of Employees By Firing Them For Engaging In Facebook Exchange About Employer

As set forth in a decision by the National Labor and Relations Board (NLRB) on August 14, 2014, two employees of a sports bar were fired for being involved in an off-duty, off-site Facebook exchange that included customers and regarded the employer’s purported failure to withhold sufficient state taxes from the employees’ pay checks.  One of the employees had merely “Liked” a comment.  In addition to firing them, the employer also threatened the employees with a lawsuit for defamation.

The NLRB, however, held that the employer violated the employees’ rights to engage in concerted activity.  The NLRB adopted “the judge’s findings that the Respondent violated the Act by threatening employees with discharge for and interrogating employees about their Facebook activity, as well as by informing employees they were being discharged because of their Facebook activity.”  In addition, it adopted “the judge’s finding that the Respondent unlawfully threatened legal action for engaging in that activity.”  Triple Play Sports Bar and Grille, 361 NLRB No. 31 (Aug. 22, 2014). A copy of the 26 page decision, which includes the text of the subject Facebook exchange, can be found on the NLRB website here.

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The Pull of Facebook Leads to Arrests

In one case, on June 19, 2014, a 26-year-old thief broke into a house in South St. Paul, Minnesota, stole some credit cards, some cash and a watch.  While still in the house, the thief spotted a computer and couldn’t resist logging onto his Facebook account.  When the owner of the house arrived to find his home ransacked, the owner was surprised to also discover that his computer was on and that it showed an unfamiliar Facebook account.  The thief had forgotten to log out of Facebook before vacating the house.  The police were notified of the identity of the thief and he was arrested soon afterward.

In another recent case, an Illinois woman had shoplifted a distinctive leopard print dress from a local boutique.  Realizing the dress was missing and having store surveillance video of the thief, the store manager posted a description of the stolen dress on Facebook and asked people to be on the lookout for her.  Unaware of the store’s video and Facebook posting, the thief put on the dress and took a selfie, posting it on Facebook with the caption: “Love my new dress.” Within hours, someone had posted the thief’s selfie on the store’s page.  The police were notified and she was arrested.  Article here.

 

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