by Paul Alan Levy
You can’t live in the DC area and not encounter the pervasive advertising for Hadeed Carpet Cleaning, from mailed coupons and display advertising in the Washington Post that promise unbelievably low prices, to classic rock broadcast from the “Hadeed.com Studios” and advertising during Washington Capitals games. But regular users of pages about Hadeed on the Yelp web site quickly learn Hadeed’s dirty secret — more than thirty of the eighty-odd reviews posted there complain that the advertised prices are routinely not honored.
Even one of Hadeed’s Yelp admirers, who gave Hadeed four of five stars
for the quality of its work, ridiculed the complainers in these terms:
“I can give a life lesson to the people who only wanted the $99 special,
there is no such thing! Every wall to wall cleaning company uses that
as a way to lure you in but no one will charge you $99.” She also gives
her secret about how to protect against unannounced price
increases from Hadeed: pay in advance!
Apparently hoping to deter further criticism, Hadeed has singled out seven anonymous reviewers as defendants in a defamation lawsuit. It does not deny that its service staff routinely demand higher-than-advertised prices when they show up to do the work, but instead claims that it suspects, based on a mysterious review of some customer database, that these seven reviews were really posted by some unnamed competitor. Unlike some other ISP’s lately, Yelp is standing up for its users’ privacy, and so refused to comply with a Virginia subpoena because (among other reasons) Hadeed never provided any evidence that the gist of the reviews was false. Hadeed moved to compel compliance, and the trial judge, refusing to apply the otherwise-broadly-accepted Dendrite test, ordered compliance because it felt that it was enough for Hadeed to show that the statements “may be tortious.” And when Yelp refused to comply – because Virginia requires non-party discovery recipients to commit contempt of court to get the right to appeal — the court found it in contempt.
In an appellate brief that we have filed today on behalf of Yelp, we make two basic points. First, Virginia should agree with other states that demand both a legal and a factual showing that the lawsuit has merit. In that regard, read carefully, Hadeed’s defamation claim asserts only that the individual reviewers were not really customers, and Hadeed is not defamed by false statements about whether a given defendant was a customer. Nor, indeed, has Hadeed offered any reason to credit its supposition that the seven reviewers were not customers; what evidence there is in the record points in the other direction.
We also argue that a California company like Yelp should not be subject to a Virginia subpoena just because its web site is accessible in Virginia and because Virginia companies like Hadeed advertise on the web site. When AOL was based in Virginia, litigants in other states had to get Virginia subpoenas to demand identifying information about AOL users; by the same token, Hadeed should have to use the normal interstate discovery procedures when it wants identifying information about Yelp users from ISP's in other states.
As always, money talks, whether in local or federal courts.
What difference does it make if commenters are customers or not,the issue is whether what they are saying is true or not. Hadeed should answer allegations instead of trying to discredit commenters
Raighne,
I am ignorant and untrained in law, so I may be confused. If you’re willing though, I’d appreciate if you would help me with that.
It looks like you’re saying that you don’t know that the Yelp! commenters are acting in good faith, and have filed suit on the assumption that they are not. Wouldn’t you normally need some persuasive evidence of defamation to subpoena identities? Also, don’t you normally need to identify specific, unprotected false factual claims to show defamation? Obviously, you’re closer to the matter and better educated on the law than I am, so I assume there’s something I’m missing.
To be honest, this strikes especially close to home for me. I live in the DC metro area, and just recently bought a house (with carpets!). It’s scary to imagine how easily I could have chosen Hadeed a couple months back to clean them, and how easily I could be getting legal threats from you now. I don’t read Yelp!, so absent this action I would never have imagined how nearly I dodged lightening.
Again though, I assume there’s some mundane explanation which I’m not seeing, and I hope you’ll let me know what it is.
V/R,
Josh
Paul,
Thanks for inviting me to respond to this post. I think you are doing what I recall that you said or implied that you would do, namely attempt to generate a lot of negative publicity for Hadeed Carpet, win or lose, in order to deter other companies from following Hadeed Carpet’s lead.
I do take issue with your statement that Hadeed Carpet has a dirty secret. I think this is a gratuitous point and you have no idea whether it is true or not. Has Yelp conducted an investigation to determine if the anonymous posters are not linked to any competitors? I doubt it. I recall that you once told me you represented these anonymous persons and that they were customers. Later, you told me that you never contacted any of them.
Maybe my recollection about what you’ve told me is faulty, and if so, you could back up your “dirty secret” allegations by providing me with a sworn affidavit stating that you have conducted a thorough investigation and that all of the anonymous posters are customers of Hadeed Carpet, and that none of them are disgruntled ex-employees or affiliated in any way, with any business competitors?
I’m not sure what I’d do with such an affidavit, but nor do I have any idea whether Yelp is simply the greatest vehicle ever devised for one business to slander another, or not. The difference between us is that I have zero independent capacity to investigate the facts further.
Hadeed Carpet services 35,000 customers per year. It advertises a lot. It is interesting that a few anonymous comments target Hadeed Carpet’s advertising repeatedly. Are these different posters, or one poster with different names? Hadeed Carpet has not been able to identify these people as customers. If they are customers, Joe Hadeed wants to know so he can fix whatever problem he has.
So the bottom line is this. I am very proud to represent Hadeed Carpet and to know Joe Hadeed. I think Hadeed Carpet is very courageous for fighting a battle to get to the truth.
As always, I look forward to seeing you in person again.