Page 10 - Litigation

S10 | MONDAY, DECEMBER 14, 2015 | Litigation
| NYLJ.COM

Defamation
that the statements constituted protected the statements “were personal in their invec- across the Internet, it bears following how

opinion. In rejecting that contention, the court tive and were designed to impugn [plaintiff’s] courts, and in particular the Appellate Divi-
noted the challenged statements were ‘mixed integrity and business practices with the intent sion, continue to grapple with the sometimes
« Continued from page S3
opinion,’ or opinion based on undisclosed to damage his business reputation”26—harking blurry line between actionable statements
ments—that readers give less credence to facts.” In so holding, the court pertinently back to Sandals’ proviso.27
of fact or mixed opinion and nonactionable
allegedly defamatory remarks published on stated “[i]t is true that the postings appeared Finally, in Sachs v. Matano, the court grant- statements of pure opinion.
the Internet holds true today. In this regard, on a consumer review website; however, the ed the extraordinary relief of mandating the
a 2014 Local Consumer Review Survey con- postings cannot be considered pure opinion” plaintiff in a medical malpractice action to •••••••••••••••••••••••••••••
cluded:
because, inter alia, “Defendant does not dis- take down the URL “www.matano.kill.com”
• 88 percent of consumers have read Inter- close certain facts about Torati in his post- and enjoining the plaintiff from posting 1. See generally Brian v. Richardson, 87 N.Y.2d 46, 51, 660 N.E.2d 1126, 637 NYS2d 347 (1995).
2. LeBlanc v. Skinner, 103 A.D.3d 202, 955 N.Y.S.2d 391
net reviews to determine the quality of a local ings” upon which his alleged opinions were defamatory statements on any other web- (2d Dep’t 2012); Sandals Resorts Int’l v. Google, 86 A.D. 3d
business (up from 71 percent in 2011); and
based, such as “the nature of their relation- site.28 There, the plaintiff on his self-created 32, 38, 925 N.Y.S.2d 407, 411 (1st Dep’t 2011).
• 72 percent of consumers say that posi- ship: that they established a limited liability website by which he sought to recruit other 3. O’Brien, Note, “Putting a Face to a (Screen) Name:
tive Internet reviews make them trust a local company together that did not accomplish patients for a class action malpractice suit The First Amendment Implications of Compelling ISPs to Reveal the Identities of Anonymous Internet Speakers
business more (up from 55 percent in 2011).17
the goals they set out to accomplish.”21
against the defendant compared the maligned in Online Defamation Cases,” 70 Fordham L. Rev. 2745,
Yet, courts which have found a challenged Another encouraging case for Internet defa- defendant “to the notorious nazi doctor, 2774-75 (2002).
Internet posting to constitute non-actionable mation plaintiffs is Technovate v. Fanelli.22 Joseph Mengele and asserts that he is anti- 4. Richardson, 87 N.Y.2d 46.
opinion almost universally cite one or both In that case, in which the plaintiffs were a semitic.” The plaintiff also wrote, “Beware, 5. Sandals, 925 N.Y.S.2d at 415.
Sandals LeBlanc6. Id.
7. Dillon v. City of New York, 261 A.D.2d 34, 38, 704
of or , thus affording Internet national wood loor inishing franchise and he is stubborn, act [sic] like a mule, and will N.Y.S.2d 1, 5 (1st Dept. 1999) (citing Restatement of
defamation defendants a thin, yet surmount- the owner of the local franchise, respectively, discriminate against you if you are not Italian Torts, Second §558).
able, layer of insulation which may not be the challenged statements were posted on with a Mercedes Benz.”29
8. Gross v. New York Times Co., 82 NY 2d 146, 153, 603
justiied based upon the current reality of Yelp and silive.com (a local Staten Island web- Conspicuously, in its decision the court N.Y.S.2d 813, 623 N.E.2d 1163 (1993).
9. Richardson, 87 N.Y.2d at 51 (internal quotations and
Internet usage.18
site). After a trial, the court held the follow- did not once cite Sandals or LeBlanc, even citations omitted).
ing statements not only constituted “mixed though it appears the challenged statement 10. Id.
Cases Finding in Favor of Plaintifs
opinion” and were hence actionable, but that “Beware, he is stubborn, act [sic] like a mule, 11. 86 A.D.3d 32 (1st Dep’t 2011)
they were defamatory per se:
and will discriminate against you if you are 12. Id. at 43.
Despite the emerging trend to treat Internet • “do not use mr sand less of staten island not Italian with a Mercedes Benz” easily could 13. Id. at 43-44 (emphasis added) (citing O’Brien, su-
pra note 3 (citations omitted)).
14. Sandals, 925 N.Y.S.2d at 416.
statements as non-actionable opinion where matt is the name he will destroy you [sic] have been deemed “‘rhetorical hyperbole, a 15. LeBlanc v. Skinner, 103 A.D.3d 202, 955 N.Y.S.2d 391
they do not constitute unambiguously clear loor he is a liar and a con artist beware.”23 vigorous epithet,” a conclusion “especially apt (2d Dep’t 2012).
statements of fact designed to disseminate • “This guy mat the owner is a scam do not in the digital age where readers afford less 16. Id. at 213.
injurious falsehoods about their subjects,19 on use him you will regret doing business with credence to Internet postings than remarks 17. Myles Anderson, Local Consumer Review Sur-
vey 2014, BRIGHTLOCAL, July 1, 2014, https://www.
three separate occasions over the past three his company I’m going to court he is a scam . in other contexts.”30
brightlocal.com/2014/07/01/local-consumer-review-sur-
months, three different lower courts have he is nothing by [sic] a liar he robs customers Instead, the court recognized that “[t]he vey-2014/.
found, either in whole or in part, the chal- and promises you everything if you want shit tone of plaintiff’s statements, and the state- 18. See, e.g., Woodbridge Structured Funding v. Pissed
lenged Internet postings with which they were then go with him if you like nice work ind ments themselves, are nothing more than Consumer, 125 A.D.3d 508, 508, 6 N.Y.S.3d 2, 3 (1st Dep’t
presented to constitute actionable statements another he is A SCAM LIAR BULLSHITTER.”an attack on the defendants designed to 2015); Nanoviricides v. Seeking Alpha, 2014 WL 2930753 (N.Y. Sup. 2015) at 1; Tener v. Cremer, 2012 WL 3230689
24
(N.Y. Sup. 2015); see also Konig v. CSC Holdings, 112
of fact or mixed opinion. These decisions, In reaching its conclusion, the court high- injure their reputation and business”31—also A.D.3d 934, 935, 977 N.Y.S.2d 756, 758 (2d Dep’t 2013)
discussed below, seem to align themselves lighted that “[t]he courts have been struggling seemingly following Sandals’ declaration (reversing the lower court’s granting of a petition for
with empirical data relecting the reliance of with the application of the traditional analysis that its decision was “in no way intended pre-action disclosure to unveil the identity of the anony- mous blogger and emphasizing the context, leave to ap-
consumers on Internet reviews published on of defamation to the Internet.” It proceeded to to immunize emails [or other Internet post- peal dismissed, 23 N.Y.3d 1029, 16 N.E.3d 1257 (2014).
webpages, blogs, and chat forums.
cite Sandals and another lower court case in ings] the focus and purpose of which are 19. Id.
For example, in Torati v. Hodak, the court which the court found no liability on behalf of to disseminate injurious falsehoods about 20. Torati v. Hodak, 2015 WL 5578264 (N.Y.Sup. 2015)
denied, in large part, defendant’s motion to a defendant who wrote that another person their subjects.”32
21. Id. at *5.
dismiss the complaint. There, the alleged was “‘immoral’ and ‘unethical’ (citations omit- 22. Technovate v. Fanelli, 49 Misc. 3d 1201(A) (N.Y. Civ.
Ct. 2015).
23. Id. at *2.
defamatory statements were posted on the ted) and for ‘lying, deceiving [and] making Conclusion
24. Id.
prominent consumer websites “ripoffreport. false promises.’”25
25. Id. (citing Rakofsky v. Washington Post, 39 Misc. 3d
com” and Yelp.20 The challenged remarks, Nevertheless, the court found the foregoing Does the recent spate of favorable lower 1226(A), 971 N.Y.S.2d 74 (Sup. Ct. 2013)).
which were directed at both the plaintiff postings constituted “mixed opinion,” inas- court decisions for Internet defamation 26. Technovate, 49 Misc. 3d 1201(A) at *6.
27. Sandals, 925 N.Y.S.2d at 416 (“This observation is
and his companies, included that the plain- much as they lacked any “speciics” to support plaintiffs signal that courts are integrating, in no way intended to immunize emails the focus and
tiff “is an incompetent and dishonest person. the defendant’s allegations. And the court went perhaps silently, the signiicance of consumer purpose of which are to disseminate injurious false-
He defrauded me out of 15K and has a trail even further, declaring that “[t]erms such as review websites, blogs, and chat forums to hoods about their subjects”).
of people to which he has bounced checks ‘scam’ ‘con artist’ and ‘robs’ imply actions a consumer in deciding whether to hire a 28. Sachs v. Matano, 004586/2015, NYLJ 1202741327174,
(including me) and caused harm.”
approaching criminal wrongdoing rather than particular business or individual? It is too at *1 (Sup., NA, decided Oct. 28, 2015)
29. Id.
30. See, e.g., Sandals and LeBlanc.
In support of his motion to dismiss the someone who failed to live up to the terms of early to tell. But given the prevalence of state- 31. Id. at *2.
complaint, the defendant averred, inter alia,
a contract.” The court also commented that
ments such as “con artist” and “fraudster”
32. Sandals, 925 N.Y.S.2d at 416.

‘Daimler’
24. See Mink v. AAA Dev., 190 F.3d 333, 336 (5th Cir. 1999).
25. Marshall Fishman and David Livshiz, “Do Recent Southern District Decisions Undo ‘Daimler’?,” N.Y.L.J.
(June 11, 2015) http://www.newyorklawjournal.com/
« id=1202728945298.
Continued from page S7
13. Monkton Ins. Servs. v. Ritter, 768 F. 3d 429, 431 (5th 26. See, e.g., Ball v. Metallurgie Hoboken-Overpelt,
Cir. 2014).
S.A., 902 F.2d 194 (2d Cir.), cert. denied, 498 U.S. 854
14. Id. at 431-32.
(1990).
27. Daimler, 134 S.Ct. at 760.
15. Ranza v. Nike, 793 F. 3d 1059, 1065 (9th Cir. 2015). 28. Id. at 752.
16. Id. at 1069.
29. Id. at 767 (Sotomayor, J., concurring).
17. Carmouche v. Tambrolee Mgmt., 789 F. 3d 1201,
1202-03 (11th Cir. 2015).
30. Id. at 752.
18. Id. at 1202-03.
31. Compare Ratliff v. Cooper Labs., 444 F.2d 745, 748
(4th Cir. 1971); Wenche Siemer v. Learjet Acquisition, 966
19. Chavez v. Dole Food Co., 796 F.3d 261, 270 (3rd
F.2d 179, 183 (5th Cir. 1992) with Bane v. Netlink, 925 F.2d
Cir. 2015), vacated by and rehearing, en banc, granted by 637, 640 (3d Cir. 1991); Knowlton v. Allied Van Lines, 900
Chavez v. Dole Food Co., 2015 U.S. App. LEXIS 16789 (3rd Cir. Sept. 22, 2015).
F.2d 1196 (8th Cir. 1990).
20. Chavez v. Dole Food Co., 947 F. Supp. 2d 438, 442 32. AstraZeneca AB v. Mylan Pharmaceuticals, 72 F.
(D.De. 2013).
Supp. 3d 549, 556 (D.De. 2014). But see Acorda Thera- peutics v. Mylan Pharmaceuticals, 78 F. Supp. 3d 572, 587
21. Kipp v. SKI Enter. Cor. of Wis., 783 F.3d 695, 698 (D.De. 2015).
(7th Cir. 2015).
33. 15 Wright & Miller, Fed. Prac. & Proc. §3842 (4th ed.).
22. First Metro. Church of Houston v. Genesis Group, 2015 U.S. App. LEXIS 16678, at *3 (5th Cir. 2015).
See also Thackurdeen v. Duke Univ., No. 14-cv-6311 (AJN), marcumllp.com/nylj
23. Zippo Manufacturing Co. v. Zippo Dot Com, 952 F. 2015 U.S. Dist. LEXIS 116952, at *38 (S.D.N.Y. Sept. 2, 2015).
34. Centerboard Sec. v. Benefuel, No. 15-cv-00071 (PAC),
Supp. 1119, 1124 (W.D. Pa. 1997).
2015 U.S. Dist. LEXIS 101729, at *9 (S.D.N.Y. Aug. 3, 2015).˚