by Paul Alan Levy
What sort of showing must a criticized business make when it wants to identify an anonymous online critic on the theory that the critic was never an actual customer and that, consequently, any criticisms are necessarily false?
Attorney Thomas P. Kelly III of Santa Rosa California
That issue has been presented in a couple of recent subpoena cases that we have handled. Probably the more significant of these two — because it is now pending in the California Court of Appeal — is Kelly v. Doe, where Thomas P. Kelly III, a lawyer in Santa Rosa, California, sued an anonymous critic who had complained on Yelp about alleged inadequacies in the legal service that the lawyer had provided to her. The review was fairly barebones:
Kelly promptly wrote to the anonymous reviewer, insisting that the reviewer was not in fact a former client, falsely claiming to have obtained the reviewer’s identifying information from Yelp, and warning that he (Kelly) would be in touch through counsel. A couple of weeks later, on February 14, 2019, he sent a letter to Yelp demanding that the review be taken down, because, he said, he had never represented anyone named Michael L. and does not handle any cases in San Francisco. He also demanded identifying information for the reviewer – making clear that he knew that he had lied to the reviewer in saying that he already had that information. And, on February 15, he filed a form complaint against the Doe, alleging once again that he (Kelly) does not handle cases in San Francisco.
Assuming that the purpose of lying to the user was to intimidate her into withdrawing her review, the intimidation worked: the user promptly removed the review. But Kelly did not take this victory and move on. Instead, represented by his father, Thomas P. Kelly, Jr., he filed a motion to compel, supported by an affidavit from plaintiff Kelly. And yet, instead of including the specific facts on which his correspondence and his complaint were based, his affidavit retreated to a more general and conclusory denial:
His papers did not mention the contention that he had never handled any cases in San Francisco, and neither his affidavit nor his papers took issue with any specific fact. But he persuaded a Superior Court judge to enforce a subpoena to identify the reviewer based on this conclusory affidavit. The trial judge does not appear to have noticed that Kelly had not identified any specific facts as being false. Instead, he focused on the seriousness of the Doe’s complaint – that Kelly had “completely bungled” a case — which, he said, amounted to an accusation of professional misconduct. And, to be sure, had Doe made any factual statements that effectively accused Kelly of professional misconduct, that could have been the basis for a libel suit, and if Kelly had produced any evidence that such factual statements were false, he could have had a basis for identifying the anonymous critic. But the judge appears not to have noticed that, despite the potential adverse effect of Doe’s criticism, Kelly’s affidavit had, to paraphrase Gertrude Stein, no there there.
The Broader Picture
In an appellate brief filed on behalf of Yelp opposing enforcement of the subpoena, we argue that a statement like “completely bungled” represents a rhetorical opinion of condemnation rather than an actionable statement of fact and that, even if it is treated as a statement of fact rather than opinions, however serious, Kelly’s showing is far too general to overcome the reviewer’s First Amendment right to speak anonymously.
I took this appeal because Kelly’s discovery motion, and the trial judge’s grant of that motion, are symptomatic of a broader pattern of claims being made by libel plaintiffs complaining about consumer reviews. Instead of addressing specific facts in online criticisms and showing how they are false, many businesses think it can be enough to claim baldly that the reviewer was not a “real customer” and hence that any negative statement is inherently false because, regardless of what the plaintiff might have done to other customers, the claim that plaintiff did it to this reviewer is false. But if such conclusory claims and affidavits are enough to identify the critic, no consumer reviewer is safe from being identified.
This was the ploy that Hadeed Carpet Cleaning used when seeking to identify the seven anonymous reviewers who criticized it for alleged bait-and-switch tactics. Taking advantage of what it argued was a statutory test demanding only allegations making out a sound claim and a good faith basis for believing the allegations to be true, as well as the traditional willingness of Virginia judges to accept the representations of counsel as true, instead of demanding affidavits, Hadeed was able to gets its subpoena enforced at the trial court level, and then by an intermediate appellate court, by simply making broad representations that its principal, Joe Hadeed, had reviewed his company’s database and had determined that none of the reviewers was truly a customer. These representations were so general that a court could only grant enforcement of the subpoena if it was willing to trust Hadeed not to exaggerate in asserting that his database had sufficient detail to allow him to make those judgments, and was willing not to second-guess his assertions.
But we could not tell, for example, whether the “facts” on which Hadeed was basing his claims about his database were simply that some of the Does had used screen names that did not match their real names, or had listed fictional locations for themselves. In the course of representing Yelp in that case, I had been in touch with a number of the anonymous defendants and had been satisfied that they were real customers (I did not make any judgment about whether their criticisms of Hadeed were sound). Some of the customers eventually filed an amicus brief in support of Yelp's appeal from the order compelling discovery.
In the end, the Virginia Supreme Court did not reach our contention that Hadeed needed to produce evidence on which a court could base its own judgment, and not just representations of counsel, because it held that Yelp was not subject to subpoena jurisdiction in Virginia. After that decision came down, Hadeed quietly dismissed its lawsuit against the seven Doe defendants.
“Superlawyer” Peter Antonoplos in Washington, D C.
We recently defended another online reviewer who was also sued by her former lawyer who claimed that his online critic was not really a client. This review, posted using the Yelp screen name “Paul H” (and the full name Paul Herrera as posted in other locations), was quite a bit more detailed: it said that Doe had set up a meeting with Antonoplos to discuss a possible contract and that Antonoplos had behaved in an antagonistic manner throughout the interview, telling Doe not to enter into the proposed contract, talking about a conflict of interest that Doe found unpersuasive, and saying that, when Doe pushed back on what he was being told, Antonoplos “resorted to ad hominem attacks. ‘Did you go to law school? I didn't think so.” The entire review is linked here.
Antonoplos posted this response on the review:
This is not a real profile, no one at my firm has ever met with a person by this name, and the meeting that is described in this review never happened.
But he also filed a defamation action in D.C. Superior Court against the reviewer as an anonymous defendant, and sought issuance of a California subpoena that he then served on Yelp. His complaint alleged that the review must be false in that he keeps detailed records and that those records do not show any meeting with a prospective client named Paul Herrera; more generally, he alleged “the meeting that is described in this review never happened.” He further alleged that the review had been posted by a competitor for the purpose of injuring his professional reputation, and was part of a pattern of public criticisms being posted by his competitors.
Now, this review certainly portrays Antonoplos negatively, and it contains specific factual statements about him which, if false, might well provide a basis for a defamation claim. But the fact that the Doe posted using a pseudonymous screen name is not a basis for claiming falsity, and the remainder of the allegations in the complaint are, like the broad allegations in Kelly’s complaint, and in Hadeed’s complaint, simply too general to have probative value in assessing whether the Doe had the meeting and heard Antonoplos say the things that are reported in the review. If, for example, Antonoplos had said under oath that he had never put down a client by saying the client never went to law school, that might easily have been enough to justify discovery – such an averment would put in issue the veracity of a specific quotation that makes Antonoplos look bad.
On receiving notice of the subpoena, the Doe contacted us for help, and was able to prove, to our satisfaction, that she was in fact a prospective client who had set up a meeting to talk about a contract – she provided a copy of the confirmatory email that she had received for the meeting. (An additional suspicious aspect of the subpoena was that it sought to identify two additional reviewers who were not alleged in the complaint to have posted defamatory matter). We filed a special motion to quash under the DC anti-SLAPP statute, pointing out that, under DC law, a plaintiff bears the burden of establishing the elements of a claim on at least a prima facie basis before depriving an anonymous critic of the right to speak anonymously. We also put in evidence a redacted copy of the attorney-client communication, showing that the Doe was a disappointed client and not a competitor.
Denial of the Antonoplos Special Motion to Quash – but the Doe Remains Anonymous
Antonoplos’ counsel was, apparently, too embarrassed to file a response, but the judge denied the special motion to quash anyway. He ruled that, under the Interstate Uniform Depositions and Discovery Act (“IUDDA”), the propriety of discovery directed under the subpoena of another state to a discovery target located in that other state can only be conducted in the courts of the state issuing the subpoena.
It is unfortunate that the trial judge did not call counsel in for argument on this issue, because the judge was plainly wrong in this ruling, and had he raised the issue at oral argument, we could have explained why. Nothing in the text of the DC version of IUDDA supports his ruling, and the text of the D.C. anti-SLAPP law expressly allows the filing of a special motion to quash — in the D.C. Courts. And the IUDDA cases that he cited – one of them was our very own Hadeed case – were cases in which the party that had issued the subpoena had sought to force an out-of-state subpoena recipient to litigate the issue of its compliance in the state in which the case was pending; none of the cases held that the party to a lawsuit cannot ask the judge in that very case to limit the ability of the opposing party to take discovery in a different state. When a plaintiff brings suit in a given state, he subjects himself to the jurisdiction of the court to order the plaintiff not to pursue litigation a particular manner. Moreover Antonoplos is a D.C. lawyer, subject to the general jurisdiction of the D.C. courts. And finally, the National Conference of Commissioners on Uniform State Laws has issued a guide describing IUDDA as follows:
(I thank Art Spitzer for pointing to this Guide.) Consequently, we were ready to file an appeal from the denial of the special motion to quash, but as it happens, a status conference had been set for two days after the Superior Court’s ruling came out, and Antonoplos preempted that status conference by filing a voluntary dismissal of the suit against his Doe critic. Although such states as California and Texas have held that a plaintiff cannot avoid facing the merits of an anti-SLAPP motion though a voluntary dismissal, there are no rulings on this issue under DC’s anti-SLAPP law. Both the question of whether Judge Richter's use of IUDDA to displace the anti-SLAPP law, and the question of voluntary dismissal after an anti-SLAPP motion, are issues worth litigating on appeal, but we have reluctantly concluded that it makes no sense to litigate both of them in the same appeal, and in this factual context. Thus, Doe’s anonymity remains intact, but Antonoplos has robbed the gallows – he will not have to pay Doe’s attorney fees under the anti-SLAPP laws.
Why Do Such Lawyers Sue Their Discontented Former Clients?
Professionals do not always please their clients; facing public criticism from a former client, or would-be client, can be sad part of professional life. I wish I could say that I have never had a dissatisfied client. Certainly I disappoint callers who contact me for advice when I have to give them the bad news that, injustice aside, they have no tenable legal claim, or that their speech was indefensible and that they are likely to be held liable. One such person who didn’t like the advice I gave her went so far as to erect a web site to denounce me!
But it is hard to understand what a lawyer like Kelly or Antonoplos thinks he has to gain by filing a defamation suit against an online critic who has posted a fairly obscure criticism on an online web site. Our Doe client's Yelp review of Antonoplos is concealed from most viewers of the Yelp site given that Yelp’s recommendation software relegated Doe’s review to the “not currently recommended” part of Antonoplos’ Yelp page. And Kelly, having secured the removal of Doe’s review (by lying to him), achieved most of what you might think he would have wanted. So why run the risk that filing the lawsuit will result in giving publicity to the criticisms?
In the end, we can give Antonoplos credit for this — however ill-advised his original lawsuit and subpoena may have been, once he learned that there was a lawyer on the other side who was ready to push back on the libel suit, he refrained from trying to justify his subpoena, and then dismissed the lawsuit at his earliest opportunity.
Kelly, on the other hand, is represented by his own father, and we might well wonder whether, even though he is not a pro se lawyer who has a fool for a client, perhaps being represented by your dad is not the best way to ensure you are getting good advice from a professional who is not overly invested personally in the situation.
Kelly’s father saved him from perjuring himself by saying under oath that he does not handle cases in San Francisco (as our papers point out, Kelly has been counsel in a number of federal cases pending in San Francisco); indeed, considering that Kelly did not make anything of the San Francisco location on Doe’s Yelp profile, we have to assume that Kelly fils and Kelly père both recognized that this basis for Kelly’s original claim about Doe not being a real customer was spurious. In those circumstances, why continue to proceed with the litigation?
As with Hadeed and as with Antonoplos, Kelly is suing an online reviewer who is, in fact, a former client. Kelly’s Doe defendant now has counsel, and perhaps Kelly should be worried about what happens if he wins the appeal – he is then likely to face a motion to strike the complaint from a Doe defendant represented by counsel. And in California, unlike DC, it is settled law that a plaintiff cannot avoid paying attorney fees to a SLAPP’d defendant by dropping the case after dismissal is sought. Things are bound to get worse for Thomas Kelly, I predict.