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March 29, 2012
Lawsuit Against Avvo for Lawyer's Profile Dismissed as SLAPP--Davis v. Avvo
By Eric Goldman
Florida lawyer Larry Joe Davis, Jr. claimed that his Avvo profile misrepresented his practice. He sued Avvo in Florida for false advertising, publicity rights misappropriation and unfair trade practices. Avvo invoked the forum selection clause in its user agreement to successfully transfer the case from Florida to Washington. In this ruling, the court finds the lawsuit is a SLAPP and dismisses the case. Further, per Washington's anti-SLAPP statute, Avvo will get its attorneys' fees plus a $10k bonus. In other words, another lawyer-plaintiff will be writing a large check to the defense for a lawsuit he never should have brought.
The court first finds that a lawsuit over providing information to the public to help them choose professional service providers constitutes "an action involving public participation.” The court treats this as self-evident, but as I've documented before, California courts (for anti-SLAPP purposes) don't automatically treat consumer reviews as matters of public concern even though I think they should. It's good to see this court recognize the social importance of providing information that guides the marketplace's invisible hand.
Once Avvo made that threshold showing, the burden fell on Davis to show his prima facie case, which he failed to do. On the crucial question of whether Avvo's allegedly wrongful activities occurred in "trade or commerce," the court says Avvo's ad-supported listings are not sufficiently commercial, citing Avvo's 2007 win in the similar Browne case.
The key to this ruling is that Washington's anti-SLAPP law is more robust that Florida's mostly toothless anti-SLAPP protection. Had Avvo not been able to transfer the case to Washington and get its choice-of-law provision enforced, it probably still would be litigating the case and burning its cash. This story turned out well for Avvo, but the case nevertheless highlights the potential deficiencies of some states' anti-SLAPP laws. This is another reason why we need federal anti-SLAPP protection.
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