Reputation Management Lawsuit Is Shot Down–Bernard v. Donat

By Eric Goldman

Bernard v. Donat, 2012 WL 525533 (N.D. Cal. Feb. 16, 2011). The Justia page.

Donald Ray Bernard is an energy consultant, big game hunt tour operator, former lawyer and former law professor. His LinkedIn page. His Google search results look like the kind of search results I see when someone uses a reputation management service; I find SEOed vanity search results are often linked to a litigious hypersensitivity about reputation (see, e.g., the litigation fusillade from Bev Stayart). Unfortunately, like far too many lawyer-plaintiffs/law professor-plaintiffs, the judge has to teach him what the law actually says.

Bernard alleges that Donat went on an online rampage against Bernard’s veracity and former legal practice, including an attack blog, posts at Complaintsboard and PissedConsumer, attack emails and postings to Scribd. Bernard sued Donat for Lanham Act false advertising, defamation and tortious interference. In this ruling, Judge Whyte dismisses the Lanham Act false advertising claim as unmeritorious (with leave to amend), which (if Bernard can’t successfully replead) will result in the state law claims going to state court.

The opinion doesn’t say exactly who Donat is, but it implies that Donat is a rival in the energy and hunting industries. Nevertheless, the opinion says Bernard didn’t allege any competitive injury/diversion from Donat’s online activities, and in particular, that Donat’s posts about Bernard’s legal career won’t necessarily affect their competition in the hunting business. Judge Whyte goes further to say that Bernard didn’t show the online posts were “commercial advertising or promotion” or were even commercial speech at all.

Unfortunately, this opinion doesn’t provide a clear statement why Donat did what he did. On the one hand, it seems entirely plausible that Competitor A in a personal services business (such as big game hunting tours, where consumer trust is essential) could hurt Competitor B by casting doubt on the person’s general trustworthiness. On the other hand, Donat is free to speak the truth as a concerned citizen, and if that’s what’s going on here, reputation management/”right to forget”-style lawsuits to cover up truthful facts are a misuse of the court system. We don’t know which styling fits these facts yet.

Either way, the Lanham Act false advertising isn’t designed to govern activity like negative consumer reviews and gripe sites. To me, that’s a feature, not a bug. Unfortunately, the Lanham Act’s poor drafting encourages far too many meritless assertions over social discourse.

One oddity: Donat apparently didn’t bring an anti-SLAPP motion, even though this lawsuit superficially looks like a SLAPP and even though the lawsuit is in CA and therefore governed by CA’s broad anti-SLAPP law. Donat is proceeding pro se, so perhaps that explains the omission.

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