California Defamation Law Blog : Los Angeles Online Business Defamation Lawyer: CA Business Rating Website Lawsuits

For those of you who use Google Reader, here's a short video I created to let you know how you can continue receiving updates from the California Defamation Law Blog. 

• Email This
• Print
• Comments
• Trackbacks

There are a number of competent defamation lawyers in Los Angeles to choose from. And I've written in the past about how to find and select the right one. But I thought I would revisit the issue given that I just stumbled across a great resource page for people out there who might be looking for a lawyer.

Yesterday as I was reviewing my California State Bar profile to make sure that it was accurate, I came across a section on the website called “How Can I Find And Hire The Right Lawyer.” This pamphlet answers 16 common questions that clients have when making the important decision of whom to hire as their attorney. I think it is absolutely excellent, and given that it comes from the State Bar of California (instead of an attorney), you know it's reliable.

• Email This
• Print
• Comments
• Trackbacks

Every defamation attorney knows it's exceedingly easy to post something negative online. Whether it is on review sites like Yelp, CitySearch, or RipOffreport, any disgruntled person can ruin your business or reputation with a click of a button. This is why it is vital that you hire an experienced internet defamation attorney who understands the technology behind the web. You cannot leave this to a generalist like a real estate attorney or a personal injury lawyer. You need a specialist, someone who is an expert in this area to explain what the primary legal principles are and to do a risk/benefit analysis with you.

With that introduction, let me give you a basic outline of the typical internet defamation lawsuit from start to finish. Here's how it usually goes. 

• Email This
• Print
• Comments
• Trackbacks

The Los Angeles Superior Court, the biggest court system on earth, continues to take extraordinary measures to deal with the budget crisis in California. Here is an article from Courthouse News that lays out some of the current issues facing the courts. One thing is clear: these cuts will delay trials, which will delay justice. Something must be done at the legislative level.

• Email This
• Print
• Comments
• Trackbacks

The BBB of the Southland, the organization that served the greater Los Angeles area, was expelled from the national organization today. According to the Better Business Bureau, the BBB of the Southland was voted out "for recurrent noncompliance with BBB standards." Although the article is short on specifics, it gives the unmistakable impression that the BBB of the Southland failed to adhere to the national group's standards in numerous respects.

BBB has chosen not to release any information regarding the "confidential, internal review." I suppose this is to be expected. But for a company that prides itself in providing information to customers about businesses and "communicating with honesty and candor," one would think that it would provide more information about it's review of the BBB of the Southland. I guess we will have to wait and see.

You can read the entire press release here.

• Email This
• Print
• Comments
• Trackbacks

My good friend Ted Tedford (who is a personal injury lawyer in Pasadena) recently put up one of the coolest billboards I've ever seen. But not so much because of the design--although, to be sure, it is elegant. What makes it great is the beautiful rainbow shining into the middle of the board!

In the interest of full disclosure, Ted and I work on a lot of serious/catastrophic personal injury cases together, e.g., auto, motorcycle, and trucking accidents as well as police brutality matters. Still, it's a fantastic board, don't you think?

• Email This
• Print
• Comments
• Trackbacks

Having just heard that Tom Cruise filed a lawsuit against Bauer Publishing (same company that David Beckham sued for alleged libel), I decided to read the Complaint myself rather than rely on secondhand accounts in the papers.

After reading the Complaint, it's clear that both of the claims (defamation and invasion of privacy) fall under the first prong of the anti-SLAPP statute. No surprise here. Tom Cruise is an actor and just about anything he does--including stories about his daughter--would be considered a matter of public interest. So, then, the issue is whether he'll be able to show a probability of prevailing on the merits. Well, it depends on a number of different things. But by far the most important will be whether the appointed judge allows Cruise to conduct discovery while the motion is pending and what that discovery turns up. A key issue in this case will be whether Cruise--as a public figure--can show that Bauer published the alleged defamatory statements with knowledge of falsity or a reckless disregard for the truth by clear and convincing evidence. As David Beckham knows, since his lawsuit was dismissed at the District Court level, this is a very heavy burden to meet. In most cases, the public figure is unable to put together evidence sufficient to get past the anti-SLAPP stage. 

If I had to bet (and I'm not a betting man) I would predict a settlement prior to the anti-SLAPP motion or a dismissal of the lawsuit under the anti-SLAPP statute. It is unlikely given the available information and the stringent legal standards that Cruise will be able to prevail. But you never know. Cruise may uncover information that shows a reckless disregard for the truth. It has happened before.

• Email This
• Print
• Comments
• Trackbacks

Malicious prosecution is extremely difficult to prove and is disfavored by the law. It requires the plaintiff to plead and prove four distinct elements in order to prevail. These elements are: (1) initiation of a prior proceeding; (2) favorable termination; (3) lack of probable cause; and (4) malice.

The first element is pretty self-explanatory: it requires the initiation of some formal proceeding, e.g. filing of a complaint. The second element is a bit more nuanced, but an example of a favorable termination would be a defense jury verdict or dismissal with prejudice of the underlying claims.

The existence of probable cause is determined by an objective test: “a suspicion founded upon circumstances warranting a reasonable man’s belief that grounds exist for initiating proceedings.”

If an attorney is being sued for malicious prosecution, the test for probable cause is whether, as an objective matter, “any reasonable attorney would have thought the claim tenable.” That is, the “ . . . standard [] is satisfied if the issues presented in the underlying action were arguably correct, even if it was extremely unlikely the client would win.”

And in order to show malice, plaintiff must plead and prove either ill will or some ulterior purpose distinct from that of enforcement of the alleged cause of action.

Those are the elements of a malicious prosecution. But beware: courts do not like these kinds of claims. And they are automatically subject to anti-SLAPP treatment. 

• Email This
• Print
• Comments
• Trackbacks

Personal injury lawyers get a bad rap because of years of tort reform and hokey advertisements. But personal injury law is much broader than just auto accident and slip and fall cases. Every time a doctor misdiagnoses a patient causing injury, a personal injury lawyer steps in and advocates on behalf of the patient's safety, which makes the entire community safer. The same is true when a pharmaceutical company puts profits over safety and causes injury.

But have you ever considered the fact that defamation is a personal injury, too? This injury may even be more serious than a physical injury because your reputation is at stake--and in many cases, your reputation may not be something you can fix, unlike a physical injury.

Although our right to an undefamed reputation must be balanced against the First Amendment rights of others, it's important and must be recognized for what it is: a personal injury. 

• Email This
• Print
• Comments (1)
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments (1)
• Trackbacks

Your reputation is everything. It can take years to develop and only a few blog postings to call it into question. This guide will give you some practical steps that you can take now to preserve your good name.

1. Monitoring Your Name - Be your own Gumshoe

The internet is vast and replete with brontobytes (that is a 1 followed by 27 zeroes) of information. But you can harness the power of Google and monitor your name by adding Google Alerts. Google will send you emails of queries that you create. For example, I have created a Google Alert for my name, Adrianos Facchetti. This allows me to monitor what others are saying about me. To sign up for Google Alerts, go to www.googlealerts.com and sign up. The rest is pretty straight-forward. There are additional ways to monitor your name. In fact, there are many companies that engage in Reputation Management, exclusively.

2. Ownership - Own your name

This piece of advice sounds easy enough but it is often overlooked. You need to own your name. This allows you to control to some extent, what is said about you.

3. Avoid Conflict

Don't engage in arguments in internet forums. If you need to vent, go for a run. Engaging in a sparring match is unlikely to persuade the person, and worse, it may lead to a defamation lawsuit.

4. Use Wikipedia to your advantage

Wikipedia is an incredibly powerful and influential source of information online. If your name or brand become important enough, Wikipedia may determine you to be a source of information worthy of citation. You should attempt to define your name/brand or services on Wikipedia before someone else does. It's as simple as that.

5. Obtain Positive Reviews from Important Bloggers

Search out important/influential bloggers in your niche and ask them to write a positive review about you. Since bloggers often enjoy excellent search engine results, it will have a resounding and positive impact on your reputation.

6. Write Articles About Yourself

This will seem strange to you but it works. Write a bio about yourself in the third person on the sites you own or control. An especially effective technique is to write your name in the title of a posting. That way, your name will come up in search engine results.

7. Get a Lawyer

If nothing else works, seek out legal advice from an experienced internet defamation lawyer. Attorneys are becoming increasingly effective combatants of online defamation. They can file John Doe lawsuits in situations where anonymous messages are posted or e-mailed. They can subpoena Internet Service Providers to provide information about such messages. Additionally, cutting edge internet defamation attorneys will work with computer experts in search engine optimization to crowd out defamatory messages.

• Email This
• Print
• Comments (1)
• Trackbacks