by Paul Alan Levy
Today we entered an important case that will determine whether New York’s new and improved anti-SLAPP law protects the authors of consumer reviews against being sued for defamation when they reveal publicly that they were less than thrilled with a business’s services or products.
The case arose from the horrible experience of the Sproule family in early March 2020, when they traveled from their home in the Chicago suburbs to Sarah Sproule’s hometown, Wantagh, New York, to attend her father’s funeral. They brought along their daughter’s brand-new puppy (her Christmas present!) and took him in for grooming at a local business, VIP Pet Grooming Studio. The precise course of events is disputed, but the bottom line is that the grooming was interrupted because the puppy reacted badly; water accumulated in the dog’s lungs; and after two days on a ventilator at a local animal hospital, at a cost of more than $10,000, the dog had to be put down.
Compounding the family’s misery, the grooming outfit refused to take any responsibility for what had happened. So Robert Sproule posted reviews on both Yelp and Google, and both he and his wife sued the grooming company for negligence once the courts reopened as the pandemic eased. On the same day that it responded to the negligence complaint, VIP Pet Grooming sued for defamation. In a particularly sleazy move, the company sued both Robert and Sarah Sproule, even though only Robert Sproule had posted the reviews. Was this punishment for Sarah Sproule’s having sued for negligence? Was it just extra pressure on the family as a whole? VIP's lawyer has ignored that question so far.
Last year, New York updated its antiSLAPP law by expanding coverage from speech about “public permittees and licensees” to “speech on an issue of public interest,” as well as by toughening both the standards for justifying SLAPP suits and the remedies afforded to the victims of SLAPPs. Curiously enough, the defamation suit was filed a mere eight days before the effective date of the new law; it was served four days before the effective date, potentially raising the question whether the new law would be held to be applicable to cases still pending when the law came into effect. (all the courts that have addressed that issue so far have found that anti-SLAPP amendments do apply). But the trial judge denied the motion to dismiss on the ground that, because the consumer reviews addressed only a single problem encountered with a single local business, it was a review about a “private beef” rather than an issue of public interest.
This holding threatens all consumers and, indeed, most people who write publicly about the actions of companies that affect them. After all, most people post reviews only about incidents that affect them, and usually they write about their own particular experiences. Does that make these postings “private beefs”? And the holding raises a problem far beyond New York because anti-SLAPP laws in many states have similar language defining the scope of the speech protected. We took the case, therefore, to establish the principle that, when a consumer speaks up about his or her experiences with a single company, the common interest of all consumers in learning about corporate wrongdoing is sufficient to make the review a matter of public interest within the meaning of anti-SLAPP laws. And the legal issues are squarely presented on this appeal because the plaintiff pet grooming business chose to stand on its complaint, along with its argument that the anti-SLAPP law did not apply, rather than submitting any affidavits purporting to show that the review contained false statements of fact.
Our brief draws both on the language of the New York anti-SLAPP law, which is particularly useful because it defines “public interest” as including everything but “a purely private matter,” but also on cases applying anti-SLAPP laws in other states as well as interpretations of “matter of public concern,”which is a common concept in First Amendment law that affects defamation law particularly but other kinds of controversies as well.
The appeal will likely be argued next year.
Paul, hats off to your anti-SLAPP work on this matter. A lot of my 50 years in the State Bar of Texas have been in consumer protection. I gladly defer to your depth of knowledge of the law of freedom of expression. One thing you wrote got my attention: the public interest in diffusing knowledge of corporate wrongdoing. Corporate, yes, but also any natural or artificial person who seeks to enjoy benefits from a consumer transaction. That’s what confers consumer standing under Tex. Bus. & Comm. Code 17.50 et seq, the Deceptive Trade Practices Consumer Protection Act. For your endeavor maybe the strength of of the protection policy of the statute informs the public interest prong of New York’s statute.