by Paul Alan Levy
At a time when the California Supreme Court is deciding whether to grant discretionary review of the decision of the California Court of Appeal in Hassell v. Bird, which held that Yelp could be required to comply with a default judgment holding that a posted review of a California lawyer was false and defamatory, along comes a situation that crystallizes concerns about judicial willingness to impose such orders on sites that host consumer content.
Matthew Chan, a resident of Columbus, Georgia, posted a series of reviews (for example, on Yelp) complaining that Mitul Patel, a dentist in Suwanee, Georgia, had induced Chan to visit his office by advertising an inexpensive dental cleaning deal. However, Chan reported that he was confronted with a hard pitch for additional, more expensive services, and Patel allegedly lost interest in providing the cleaning when Chan was not agreeable to buying additional services. I am in no position to say whether Chan’s criticisms of Patel are fair or accurate, but Patel’s sneaky response to the criticism, instead of just suing his detractor in the Georgia courts, tends to suggest that Chan might well have reason to complain.
Background
Over the past few years, businesses seeking to suppress customer criticisms on review sites such as Yelp have tried to devise a variety of ways to insulate themselves from fair commentary; this blog has covered such devises as non-disparagement clauses, copyright assignment agreements, TRO’s obtained from compliant local judges against distant defendants, ex parte proceedings, and plain old SLAPP suits. In several cases, we have come to the aid of review sites asserting their section 230 immunity from liability or suit based on content posted their sites by consumers, even when the plaintiff has obtained a default judgment commanding removal of allegedly defamatory reviews. We have argued that hosting sites are often skeptical about whether such judgments reflect a sound neutral determination that the review was false, and properly consider the possibility that the judgement reflects no more than a consumer defendant's lack of resources for defending his or her criticism.
This spring Techdirt reported on a pair of California lawyers who developed a specialty of obtaining bogus judgments in a rural state court against postings on Pissed Consumer, not for the purpose of compelling that site to remove critical material (it flaunts its policy of not complying with orders directed to its users), but rather in the hope of persuading Google removed certain URL’s from its search listings. The result of this report, I believe, was to make Google more cautious in responding to orders against reviews posted by the users of interactive web sites
The audacity of the recent litigation pursued pro se by Dr. Patel against Chan rivals the shenanigans reported by Techdirt, and the sad fact is that Patel was able to play on the credulity both of a judge and of some web site hosts to get some of the criticisms taken down, at least initially.
Mitul Patel’s Response to Matthew Chan’s Criticisms
In addition to posting his reviews of Mitul Patel on Yelp, Chan posted on RateMDs, kudzu.com and Healthgrades.com about his unsatisfactory experiences with Dr. Patel. Chan’s is but one of a number of negative reviews directed at Patel on these various sites, but Patel apparently took particular umbrage at this one: he filed a pro se libel action claiming, in highly conclusory terms, that the reviews were false and defamatory. But instead of suing Chan in Georgia, Patel filed in the circuit court for the city of Baltimore, Maryland, a court that would ordinarily have no personal jurisdiction over a Georgia consumer sued for criticizing a Georgia dentist. Patel justified suing there by identifying “Mathew Chan” as the defendant – note that the spelling of the given name is slightly different – and alleging that this Mathew Chan “maintains a primary residence located in Baltimore, Maryland.”
I tried to reach Patel to ask for his explanation of what and where he filed. I wanted to find out why he believed (if he really believed) that someone supposedly living in Baltimore, with a slightly different first name, was his former patient from Georgia? The fact that the both the online docket for the case, and the “consent motion for injunction and final judgment” bearing a signature for “Mathew Chan,” list his address as 400 East Pratt St. in Baltimore implies to me that this is a case of deliberate fraud, because so far as I have been able to determine, 400 East Pratt Street is a downtown building that contains only offices, retail establishments and restaurants, but no residences. Patel never responded to my inquiries.
The judgment declares that reviews posted on five separate web sites are false and defamatory, and orders the “Defendant” to remove them. But at the same time, the judgment anticipates that the defendant might not remove the reviews; it directs Patel to submit the order to the five hosting web sites as well as to “any other Internet search engine” so that the comment can be removed “from their web page pursuant to their existing policies concerning the delisting of defamatory material.” A state trial judge named Philip Senan Jackson duly signed the consent order.
How the Hosting Companies Responded
It was only at this point that the real Matthew Chan – the actual author of the negative reviews – learned of the proceedings, when Yelp notified him of the receipt of the court order and indicated that it would take his review down absent a persuasive response. But after Chan explained to Yelp how the order had been fraudulently procured, Yelp has decided to leave the review posted.
Yelp’s response to receipt of the court order was more responsible than some of the other sites where Chan had posted his concerns. Both HealthGrades.com and Kudzu.com apparently received the order and removed the review without the courtesy of any notice to Chan. I have been in touch with representatives of both review sites. HealthGrades’ response was somewhat contradictory: first I was told that the company had simply complied with the terms of the court’s order, but then its representative claimed that the order was unrelated to the removal of Chan’s review. Kudzu's representatives tell me that they are investigating the situation. (RateMDs never removed Chan's review; my effort to reach its new owners has not yet succeeded).
Under section 230, the hosts of consumer comment have every right to make their own policies about how to respond when there are judicial proceedings over their users reviews. If suit against the user is successful, they are entitled to leave the reviews posted; they can empower the users to decide whether the reviews remain online; or they can effect the removal unilaterally. But you would think that the responsible host would, at the very least, notify a user when it is considering whether to remove that user’s review, and give the user a chance to respond. That neither HealthGrades nor Kudzu gave notice to Chan before taking down his review does not speak well of them. We can still hope that they reverse their knee-jerk removal decisions now they have have been told about how that they were victimized by this sort of maneuvering, thus showing their commitment to the consumers whose reviews they solicit and to presenting a fair balance of reviews to all consumers.
Although I place most of the blame for this situation on Patel's apparent dishonesty, and on some review sites' pusillanimous response, it seems to me that Judge Jackson should have been more careful. To be sure, he was presented with what purported to be a consent order, signed by both sides. But because the order he was being asked to sign called for removal by third party hosting sites (although, strictly speaking, it does not order them to effect removal), he should should have taken care to ensure that they had notice before he issued the order. And the identification of a downtown office building as the address of the Georgia consumer who was being sued for criticizing a Georgia dentist should have alerted him to inquire further.
I agree with Russel Matthew.
Hello Russell,
Thanks for your suggestion.
I had previously filed a complaint in 2014 with the Georgia Board of Dentist over the “bait and switch” incident. They declined to pursue the matter and I just let it go. It is old news. The only reason why it is even an issue of discussion today is only to explain why I wrote my review to begin with 2 years ago. I’ve had no contact or interaction with Patel or his office in over two years so I cannot speak to what he does today. I have no desire to communicate with him or cross paths with him if I can help it.
I figured my prior consumer reviews to the public was sufficient action over the matter. People can make their own decision if they want to use Patel as their dentist.
I am certainly willing to file a complaint to the Georgia Board of Dentistry against Patel but I am being patient for now. Perhaps more information will surface later.
Mr. Levy wrote in his latest post: http://pubcit.typepad.com/clpblog/2016/08/georgia-dentist-mitul-patel-acknowledges-that-consent-order-was-a-fraud-but-claims-he-is-the-real-vi.html that (through Patel’s lawyer Stuart Oberman) Patel denies the accusations. Mr. Levy also writes, “Stay tuned” and I am doing just that for now.
I am looking forward to Mr. Levy’s next update post on this matter whenever that might be. I don’t think anyone knows more about what is going with this whole fiasco than he does given his contacts and resources. I have no problems saying that I implicitly trust Mr. Levy’s work and judgment. His tremendous career and reputation precedes him.
Matthew Chan
Matthew, if you haven’t already done so, it seems like filing a complaint with the Georgia Board of Dentistry would be a reasonable step. I’d leave off the part about bait and switch and the substance of your grievance, and focus instead on the apparent perfidy of the Maryland litigation.
https://gbd.georgia.gov/
Russell Winer
First, let me publicly thank and acknowledge Mr. Paul Alan Levy of Public Citizen for being at the forefront of this case and bring it to light. I have long known about Mr. Levy’s extensive work, reputation, and interesting cases he takes on. A case that I was following when my case appeared out of nowhere is the Prestigious Pets case in Texas concerning a Yelp review. It is worth paying attention to and concerns the legitimacy and enforcement of non-disparagement clauses.
It appears there is a growing phenomenon of businesses using very “creative” means to remove undesirable Yelp reviews. What I never imagined is that out of the five Yelp reviews I have written (as of this writing) of which only two were “negative reviews”, I would get caught up in a situation that would become a story and the interest of Public Citizen, a well-known consumer advocacy organization.
Mr. Levy has done an excellent job covering so many of the finer points of the issues at hand. He articulates them very well, far better than I could. I am fortunate that I have not been overtly harmed by this so far. As Mr. Levy has pointed out in his analysis, it is only because of Yelp that I ever found out about it. I am not a traditional “Yelper”, nor do I write many consumer reviews as a general rule. And so, Yelp deserves great credit for reaching out to me wanting to find out what my intentions were regarding the “consent order”. And they have been receptive receiving updates from me on this case. I was pleasantly surprised when Yelp placed a Consumer Alert on Mr. Patel’s business page listing. I did not know that occurred until a friend following this case informed me.
Mr. Patel has MANY other negative consumer reviews which largely substantiate different aspects of what I wrote in my original review. However, my review appeared to be of particular interest for removal because of the specificity of my review where it included extra references to the 2008 disciplinary documents I found on the Georgia Board of Dentistry website and I complained that he engaged in “bait and switch” tactics with me which there are laws against in Georgia.
Other smaller facts I would like to note shows the level the level of deception that occurred.
1). My contact address was not the only address that was grossly wrong. Mr. Patel’s own contact address in the court documents were non-existent according to an address verification check on USPS.com. The street number does not exist for that street and the Suite number appears to be intentionally omitted which ensured that any court notices would not be successfully delivered to or be seen by anyone at his office. That is what I believe based on the information I have now.
2). Even the part where Mr. Patel asserts in the Complaint that he resides in Gwinnett County, Georgia (a very minor point ordinarily), that appears to be false. From what I have been able to find and discover, he has a sizable house in Fulton County only a few miles from his dental office. That seems to be his likely residence. I only bring this up because it is simply one of many pieces of false and deceptive information.
3). I find it difficult to believe the Mr. Patel devised or developed this consumer review expungement scheme. I believe the inspiration and mastermind of what occurred originated with someone else who understood loopholes of removing unfavorable content from websites as well as an understanding of how to take advantage of small cracks in the legal system. Let me be clear. I do not at all blame anyone at the Baltimore Circuit Court. I see no easy way it could have been prevented. If someone is determined to perpetrate a fraud, as in this case, people will always devise a way.
4). I along with a few other knowledgeable people I have conferred with believe that crimes were committed by someone. There is no doubt that my signature was forged. There is no doubt that the judge and court were mislead. There is no doubt there was abuse of the legal system. There is no doubt that my reviews were the ones that were targeted for removal. There is no doubt that Mr. Patel was the clear beneficiary of the illicitly-obtained “consent order”. There is no doubt that defamation claims as described in the Complaint about me are untrue. In my opinion, there is clearly a criminal action component that ultimately has to be acknowledged and dealt with.
5). What I have tried to avoid discussing of which Mr. Patel has only reinforced (even prior to this Yelp incident), is that the dental industry perpetrate certain “sales-enhancement” schemes that, in my view, are unethical and dishonest. They prey upon people’s fears and inability to self-diagnose. Further, the sales incentive often extend towards those people we would not normally associate with being “incentivized” such as office management and the hygienists that clean your teeth! Everything prescribed and sold in the dental office is often available at local pharmacies for far less money. I could go on and on but I won’t because this really isn’t the proper forum.
In conclusion, I have been privileged with the light that Mr. Paul Alan Levy and Public Citizen has clearly shown on this matter. Mr. has shown great initiative and I have been honored to cooperate with him to help serve the greater good. Legitimate consumer reviews are important to our society. It helps keep businesses in check. And when a business finds a way to cheat and circumvent the system, it is bad for the public who want to be informed. As a last personally comment, do not be silent and SPEAK OUT when you see these kinds of things being perpetrated against you. If it is happening to you, there is a good chance it is also happening to other people.
Respectfully,
Matthew Chan
The signatures of Patel and “Chan” on the consent order look remarkably similar.