Topic: Legal

Legal side of Reputation Management

The Meaning of Libel Per Se 0

Here is a short post describing what libel per se means. In California an allegedly defamatory statement is said to be libelous per se if it is defamatory on its face. Meaning that it does not need any explanation. For example, accusing someone of a crime is libelous on its face. If a statement is libelous per se the plaintiff does not need to prove special damages. This is significant because many individual plaintiffs cannot demonstrate any special damages–they usually can only show general damages. But without evidence of any special damages, juries are typically reluctant to award any considerable amount of general damages.

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Source: Adrianos Facchetti

Travolta & Singer Sued For Alleged LIbel 0

Here’s a good article by the Hollywood Reporter about a lawsuit that was filed today against John Travolta and Martin Singer, which serves as a good illustration as to what dangers await those who file defamation lawsuits.

Robert Randolph, who wrote You’ll Never Spa In This Town Again is suing John Travolta and Martin Singer for Trade Libel, Intentional Interference With Prospective Economic Advantage, and Negligent Interference With Prospective Economic Advantage. Basically, Mr. Randolph is upset about statements Mr. Singer made on behalf of his client, John Travolta, about Mr. Randolph in a letter to Gawker.

But the face of the Complaint reveals a number of issues, which lead me to conclude that the case will either be voluntarily dismissed with prejudice or struck under the anti-SLAPP statute. First, it looks fairly clear that the letter is protected by the litigation privilege, which is an absolute bar to the Trade Libel claim. And since the remaining claims are derivative of that claim, the rest will fail as well.

But let’s assume for the sake of argument that the litigation privilege argument doesn’t carry the day, plaintiff still faces an uphill battle on the trade libel claim. As I’ve discussed here before, I see no advantage (ever) to bringing a trade libel claim as opposed to a regular libel claim. With trade libel, you need to show falsity, malice, and a specific showing of pecuniary loss, which is hard to do–especially if you get hit with an anti-SLAPP motion, which stays all discovery in the matter. I think it will be very difficult for plaintiff to establish malice at this point, if ever.

With respect to the intentional interference claim, these are difficult because plaintiffs must establish an actual economic relationship or a protected expectancy with a third person, not merely a hope of future transactions. Again if an anti-SLAPP motion is filed, plaintiff will need to produce competent and admissible evidence of specific existing relationships that were interfered with as a result of defendant’s statements. Tough to do normally.

With regard to the negligent interference claim, plaintiff must show that a duty existed between the parties. A duty may arise through statute, contract, or the general character of the activity. None of these seems to apply here given the allegations of the Complaint. Nor does there seem to be a special relationship between the parties such that a duty could arise here. So the claim doesn’t seem likely to survive.

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The above is by no means an exhaustive analysis of the Complaint, but I do see some problems up ahead for the plaintiff. Problems that usually cannot be overcome. It’ likely this case will go away fairly soon.

 

 

 


Source: Adrianos Facchetti

A Cross-Complaint Is Rarely The Answer 0

I routinely hear prospective clients ask me whether they should file a cross-complaint in response to a SLAPP action. In most cases, they ask me this question because a previous attorney has advised them to do it. While filing a cross-complaint certainly escalates the litigation, it rarely serves the interests of the client.

So why do attorneys recommend such a course of action? Because they think that by raising the stakes they are shifting some of the risk of loss to the plaintiff. In most cases, however, this is wrong. First, what many attorneys don’t realize is that by filing a cross-complaint in response to a complaint, they may be subjecting their clients to the risk of an anti-SLAPP motion. Even if plaintiff’s motion turns out to be frivolous, the client will still have to pay his attorney to oppose it. And, the risk is not worth it since in most cases you can respond to a complaint with an ant-SLAPP motion and then file a cross-complaint (if necessary, warranted, and within the SOL) after the Court rules on the motion. 

However, if the the statute of limitations is running, or if the nature of the cross-complaint is such that the risk of an anti-SLAPP motion is low, it may be wise to file a cross-complaint. Otherwise, try to avoid it. So beware if someone is quick to advise you to file a cross-complaint.

 


Source: Adrianos Facchetti

How to read a consumer review 0

At least 2 or 3 times a week I get a call from an anguished business owner about a negative review on the internet. Sometimes it’s on Yelp, other times it’s on other sites like Citysearch, Ripoffreport, or Avvo. Negative reviews can be extremely damaging to a business, but in many cases, it’s best not to get too upset about them, unless they appear credible and they are defamatory. Even where a claim may be actionable, it’s best not to sue for a variety of reasons that I’ve discussed previously on this blog.

But something I haven’t written about yet is how you, as a potential consumer, should read a review. In other words, what should you consider in order to determine whether a review is to be trusted or not? After all, we all know that many businesses (affiliate marketers, in particular) write shill reviews in order to make it appear like they have a great reputation. Some of them even write malicious reviews to destroy their competition. So how do we know which reviews to trust?

Here are a number of guidelines to consider when you’re reading a consumer review. Some of these are common sense, but as the old saying goes, I’ve found that common sense isn’t so common.

1. The “Gestalt” – the first thing I look at is the whole of the business’ internet reputation. I look at multiple review sites to see what the general trend is. Not surprisingly, if most of the reviews are fairly positive, that’s a good sign. But I go beyond this. What do the positive reviews have in common? What do the negative reviews have in common? If positive reviews repeat certain things about the business I generally view this favorably, unless the language and sentence structure is so similar as to draw my suspicion. In addition, if the company has no negative reviews I look at this with a bit of skepticism. While it’s possible that they have no unsatisfied customers, it’s more likely that they’re either fairly new or that they’re using proactive methods to keep customers from making reviews, or to suppress reviews they don’t like with SEO methods. But really, at the end of the day every business will and should expect to have a handful of negative of reviews. Every business owner has encountered the unreasonable or unhinged customer. And every consumer has come in contact with a business owner who just doesn’t care.

2. The Language – I tend to look at the grammar, punctuation, and other similar characteristics of a review too. Is it well-written? If the review is badly written or is in ALL CAPS, then I tend to give it less credence. Why, you may ask? It’s because I think people who write well tend to think well too. There are exceptions, of course. And people who use ALL CAPS in their reviews are often emotionally fired up. I tend to look at those kinds of reviews with an extra grain of salt. While their review may be 100% true, I’m more likely to believe a review that seemed to have been written by a cool and calm customer.

Also, is the language of the post specific? If the post is vague, general, or contradictory, this is a red flag for me. It tells me a few things. First, that it could be a post from a jealous competitor who is attempting to disparage the competition (not altogether common in my experience). Second, it’s a disgruntled customer who will never be satisfied and may be seeking to exact revenge on the business owner. Or third, and worse, it is a person who may be emotionally disturbed or who is attempting to extort the business owner. Sadly, this happens.

3. The number of reviews – This is an obvious one. If the vast majority of reviews are positive and there are only one or two negative reviews, this is a good sign. The opposite is also true.

4. Anonymous online reviews – It’s very easy to take potshots at somebody when you think there are no consequences. It’s much more difficult to put your name on a statement, especially a negative or a controversial one. For this reason, I find that anonymous posts on the whole are less credible. There are exceptions, of course.

5. The reviewer – the last thing I look at is the reviewer. Has this person posted multiple negative reviews about different businesses on a number of sites? If so, this is a major red flag. Most people do not post reviews on the internet at all. Even fewer post multiple negative reviews about different businesses. This suggests to me that the person may have emotional issues, unreasonable, or is simply a malicious individual. Or worse, that the person is a professional extortionist, which is a growing problem.

It is inevitable that most, if not all business owners will deal with a negative online review at some point. You simply can’t make everyone happy, no matter what you do.  

 

 

 

 


Source: Adrianos Facchetti